Fire Hydrant of Freedom
Politics, Religion, Science, Culture and Humanities => Politics & Religion => Topic started by: Crafty_Dog on July 09, 2007, 06:53:06 AM
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WSJ:
The Gitmo Distraction
By DAVID B. RIVKIN, JR. and LEE A. CASEY
July 9, 2007; Page A15
Reports suggest that President Bush's top advisers are again wrestling with whether to close the detention facility in Guantanamo Bay, Cuba. There is no doubt that holding captured al Qaeda and Taliban fighters at that facility has become a significant diplomatic liability.
But the potential foreign policy benefits of moving war on terror prisoners must be weighed against the very real strategic, tactical and legal costs that this decision would entail. After looking at these, it is difficult to avoid the conclusion that maintaining the Guantanamo Bay facility is not only justifiable but necessary.
Perhaps the most important cost of closing Guantanamo would be strategic. From the start of this conflict, al Qaeda's strategy for victory has been to take maximum advantage of Western sensibilities and institutions, including public opinion and legal rules which limit what states can do in their own defense. The Bush administration sought to minimize the impact of this type of strategy by itself adopting a wartime legal paradigm, declaring a war against terror and using the full force of the United States military -- rather than relying primarily on American law-enforcement resources -- against al Qaeda and its allies. Detaining captured al Qaeda and Taliban operatives as enemy combatants at Guantanamo Bay was, and remains, a central aspect of that policy and there is little doubt that abandoning it will be seen by al Qaeda as a failure of American nerve and a vindication of their strategic vision.
Closing Guantanamo would also be a victory for al Qaeda because the other alternatives for detaining captured jihadis either give terrorists a legal advantage. The status quo is the best option we have.
There are three basic alternatives to Guantanamo: First, transferring the detainees back to U.S. bases in Afghanistan (such as Bagram Air Base) or elsewhere in the world; second, bringing them to the U.S. to be housed, still as captured enemy combatants, at federal military or civilian prison facilities; or last, having brought them to American soil, processing the detainees through the criminal justice system as civilian defendants, much like the "20th" 9/11 hijacker Zacarias Moussaoui.
The first alternative, moving the detainees to a different overseas location, would incur considerable expense (the current facilities would have to be more or less replicated in another location) and would almost certainly provoke a constitutional crisis between the president and the Supreme Court. The justices have already ruled in Rasul v. Bush (2004) that Guantanamo Bay, based on its unique status as Cuban territory subject to the U.S.'s exclusive authority, is subject to federal court jurisdiction.
Although this case was wrongly decided in light of the court's other precedents, withdrawing detainees from Guantanamo now would prompt the Supreme Court to consider another expansion of federal judicial power, effectively following the detainees wherever they are moved. And, given swing Justice Anthony Kennedy's uncertain temper in war on terror cases, a five-justice majority may well find a pretext to do just that. The president would then be placed in the unenviable position of accepting judicial oversight not merely at Guantanamo Bay, but also in active, foreign theaters of war -- or ignoring the court's ruling.
The second alternative, bringing the detainees into the U.S., also would be no panacea. This too would be costly, involving creation of new maximum-security prison space in an already overcrowded federal system. Relocation to the homeland would also raise the potential for escapes into the civilian population and would open vast new litigation vistas for the detainees and their American lawyers -- including challenges not merely to their classification as enemy combatants, but to the ongoing conditions of their confinement as well. Although Congress could attempt to avoid this projected litigation explosion by statutorily limiting detainee rights -- as it did in the 2005 Detainee Treatment Act and 2006 Military Commissions Act -- there is no guarantee that these or similar provisions will withstand constitutional scrutiny once detainees are in the U.S. and subject to the U.S. Constitution.
This is especially true with regard to proposals for the creation of a type of administrative detention that would permit the most dangerous detainees to be held indefinitely -- without criminal trial in either civilian or military courts. Despite the rhetoric of the administration's critics, the detainees are not now subject to indefinite detention. Under the laws of war, they may be held until the armed conflict is over, at which time they must be tried or set free. The laws of war do not provide a basis for post-conflict preventative detention, and the constitutional basis for such detention is far from obvious. To date, the courts have accepted truly preventative detention in only very limited circumstances, generally involving cases in which the prisoner has a mental disease or defect.
Thus, even assuming that congressional Democrats would accommodate the administration's request for such legislation -- and they do not appear to be in an accommodating mood -- the government may still lose the inevitable legal challenges. These are likely to be even more difficult than the one arising in the Guantanamo context which the justices have docketed for next fall. The administration could find itself having to charge the detainees as civilian criminal defendants or watch the courts release them onto America's streets.
This frightening possibility is real enough, because the final option -- processing the detainees in the civilian court system -- is also not possible. Some of the detainees would not be subject to trial in the United States at all because, unless they have actively opposed U.S. forces or otherwise directly targeted U.S. nationals, they are not obviously subject to American criminal laws. Attacking U.S. allies is not necessarily an adequate basis for jurisdiction. However, even if the underlying statutory framework were available to prosecute most of the detainees as civilian criminals, the government would be fatally handicapped in presenting its case.
Leaving aside the fact that evidence against the detainees has not (and could not have) been collected at overseas battlefields in accordance with normal exacting police procedures, the Constitution requires that every element of a criminal charge be proved beyond a reasonable doubt by admissible evidence presented in open court. This would require the compromise of classified, national security information being used as the price of a conviction. Although proponents of a criminal law approach to al Qaeda often claim that the Classified Information Procedures Act (CIPA) answers this objection, it does not.
CIPA permits the government to protect classified information throughout the pre-trial, including the "discovery," phase of a criminal prosecution. In addition, it allows the court to consider whether there are acceptable evidentiary alternatives to the admission of classified material at trial. However, if the court does not accept those alternatives, or if it concludes that the defendant would not receive a fair trial without the use of classified information, the government must accept the disclosure of that information (damaging the war effort) or see the case dismissed. Meanwhile, as was the case with the indefinite administrative detention option, any statutory restrictions on a defendant's right to have the evidence against him presented in open court -- another legislative option allegedly contemplated by the administration -- is neither likely to be adopted by Congress nor blessed by the courts.
Finally, in addition to these costs, the potential benefits of closing Guantanamo are illusory. The most commonly articulated reason for this step is to improve relations with our allies, especially in Europe. However, Europe's real objection is not to the detainees' location at a U.S. Naval Base in Cuba, but to their confinement as enemy combatants in the first place. By and large, Europe has never accepted that there is a "war" on terror. Moving detainees to Afghanistan or the U.S. will not change this.
To obtain any "public diplomacy" advantage from closing Guantanamo, the president must be prepared to declare an end to military operations against al Qaeda, and a return to the pre-9/11 policy mixture of law enforcement, diplomacy and surgical strikes against al Qaeda outposts that failed miserably. This is also why lesser changes at Guantanamo, such as inviting European allies to participate in both the operation and review of continued detentions, are impractical. Those allies simply do not believe there is a war in which these fighters can legally be held.
Just as nothing short of total U.S. withdrawal from Iraq would appease the administration's opponents, the critics of Guantanamo Bay will not be satisfied with anything other than abandonment of the war against al Qaeda. If, as the president says, a U.S. withdrawal from Iraq would be a key defeat in the war on terror, ending that war itself -- leaving al Qaeda bruised, but very much in possession of the global battlefield -- would be an even greater calamity.
Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.
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Unlikely Adversary Arises to Criticize Detainee Hearings
By WILLIAM GLABERSON
NY Times
Published: July 23, 2007
NEWPORT BEACH, Calif. — Stephen E. Abraham’s assignment to the Pentagon unit that runs the hearings at Guantánamo Bay, Cuba, seemed a perfect fit.
A lawyer in civilian life, he had been decorated for counterespionage and counterterrorism work during 22 years as a reserve Army intelligence officer in which he rose to the rank of lieutenant colonel. His posting, just as the Guantánamo hearings were accelerating in 2004, gave him a close-up view of the government’s detention policies.
It also turned him into one of the Bush administration’s most unlikely adversaries.
In June, Colonel Abraham became the first military insider to criticize publicly the Guantánamo hearings, which determine whether detainees should be held indefinitely as enemy combatants. Just days after detainees’ lawyers submitted an affidavit containing his criticisms, the United States Supreme Court reversed itself and agreed to hear an appeal arguing that the hearings are unjust and that detainees have a right to contest their detentions in federal court.
Some lawyers say Colonel Abraham’s account — of a hearing procedure that he described as deeply flawed and largely a tool for commanders to rubber-stamp decisions they had already made — may have played an important role in the justices’ highly unusual reversal. That decision once again brought the administration face to face with the vexing legal, political and diplomatic questions about the fate of Guantánamo and the roughly 360 men still held there.
“Nobody stood up and said the emperor’s wearing no clothes,” Colonel Abraham said in an interview. “The prevailing attitude was, ‘If they’re in Guantánamo, they’re there for a reason.’ ”
The curtain on the hearings had been pulled back a bit previously, when the Pentagon, under pressure, released some transcripts. But by stepping forward, Colonel Abraham gave the Supreme Court and the public a look from an insider at a process that remains heavily shielded.
He expanded on that account in a series of recent conversations at his law office here, offering a detailed portrait of a system that he described as characterized by superficial efforts to gather evidence and frenzied pressure to conduct hundreds of hearings in a few months.
Most detainees, he said, have no realistic way to contest charges often based not on solid information, but on generalizations, incomplete intelligence reports and hints of terrorism ties.
“What disturbed me most was the willingness to use very small fragments of information,” he said, recounting how, over his six-month tour, he grew increasingly uneasy at what he saw. In the interviews, he often spoke coolly, with the detachment of a lawyer, but as time wore on grew agitated as he described his experiences.
Often, he said, intelligence reports relied only on accusations that a detainee had been found in a suspect area or was associated with a suspect organization. Some, he said, described detainees as jihadist without detail.
Pentagon officials have dismissed his criticisms as biased and said he was not in the position to have seen the entire process work.
As an intelligence officer responsible for running the central computer depository of evidence for the hearings, he said, he saw many of the documents in hundreds of the 558 cases. He also worked as a liaison with intelligence agencies and served on one three-member hearing panel.
All of which has left Colonel Abraham, 46, a civilian business lawyer who has lately been busy with a lawsuit between makers of pomegranate juice, with a central role in the public debate over Guantánamo. His account has been widely discussed in Congress, the administration and the press. On Friday, a federal appeals court judge took note of it in describing what she said were problems with the Pentagon’s hearing process.
He has been called a whistleblower and a traitor. On July 26, he is to testify before a House committee.
His road to notoriety, he says, is entirely of a piece with his biography. A political conservative who says he cried when Richard M. Nixon resigned the presidency, he says he has remained a reservist throughout his adult life to repay the country for the opportunities it offered his family. His father is a Holocaust survivor who emigrated after the Second World War.
“It is my duty,” Colonel Abraham said of his decision to come forward.
Pentagon officials say his account indicates that he misunderstood the purpose of the hearings, known as combatant status review tribunals or C.S.R.T.’s, which the officials say “afford greater protections for wartime detainees than any nation has ever provided.”
A Pentagon spokesman, Lt. Cmdr. Chito Peppler of the Navy, said that Colonel Abraham’s “apparently biased insinuations” did not indicate bad faith or improper behavior by military officials.
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“In his capacity as database manager during his brief stint on active duty several years ago,” Commander Peppler said, “Lieutenant Colonel Abraham was not in a position to have a complete view of all the evidence used in the C.S.R.T.’s, as well as the process as a whole.”
Colonel Abraham arrived at the Office for the Administrative Review of the Detention of Enemy Combatants during a chaotic period in September 2004.
The plan for the hearings had come from the highest levels of the Pentagon after two Supreme Court rulings on June 28, 2004, put the Bush administration on the defensive over its detainee policies.
One ruling suggested that detainees would be entitled to hearings “before a neutral decision maker.” The other said detainees could have federal courts review their detentions. Nine days later, Paul D. Wolfowitz, then deputy defense secretary, issued an order creating the C.S.R.T.’s.
Colonel Abraham had already served a year on active duty after the 2001 terrorist attacks. At Pearl Harbor, he had been cited for exceptionally meritorious service as “lead counterterrorism analyst,” burnishing a record that included a citation for leading a counterespionage operation in the 1980s that ended with the detention of three Soviet agents.
A divorced father of a 7-year-old daughter, he was not looking for a posting. But a commander suggested that his skills were needed: the hearing program was entering its busiest period, with more than 200 people gathering evidence and running the hearings at an office near the Pentagon and in Guantánamo.
It was obvious, Colonel Abraham said, that officials were under intense pressure to show quick results. Quickly, he said, he grew concerned about the quality of the reports being used as evidence. The unclassified evidence, he said, lacked the kind of solid corroboration he had relied on throughout his intelligence career. “The classified information,” he added, “was stripped down, watered down, removed of context, incomplete and missing essential information.”
Many detainees implicated other detainees, he said, and there was often no way to test whether they had provided false information to win favor with interrogators.
He said he was prohibited from discussing the facts of cases. But public information, much of it obtained through lawsuits, includes examples of some of the points he made.
In a hearing on Oct. 26, 2004, a transcript shows, one detainee was told that another had identified him as having attended a terrorism training camp.
The detainee asked that his accuser be brought to testify. “We don’t know his name,” the senior officer on the hearing panel said.
At another hearing, later reviewed by a federal judge, a Turkish detainee, Murat Kurnaz, was said to have been associated with an Islamic missionary group. He had also traveled with a man who had become a suicide bomber.
“It would appear,” Judge Joyce Hens Green wrote in 2005, “that the government is indefinitely holding the detainee — possibly for life — solely because of his contacts with individuals or organizations tied to terrorism and not because of any terrorist activities that the detainee aided, abetted or undertook himself.”
In a third hearing, an Afghan detainee said he had indeed been a jihadist — during the 1980s war against the Soviet Union, when a lot of Afghans were jihadists. Was that what the accusation against him meant, he asked, or was it referring to later, during the American war?
“We don’t know what that time frame was, either,” the tribunal’s lead officer replied.
During one of the recent interviews, Colonel Abraham said that the general accusations that detainees were jihadists without much more alarmed him.
“As an intelligence agent, I would have written ‘junk statement’ across that,” he said.
Critics of the administration’s detention policies have questioned the hearings’ fairness, noting that detainees are not permitted lawyers and cannot see much of the evidence. Pentagon officials have said such criticism is not meaningful because a combatant status hearing “is not a criminal trial.” They note that 38 of the 558 cases ended in decisions favorable to the detainees.
But Colonel Abraham said that in meetings with top officials of the office, it was clear that such findings were discouraged. “Anything that resulted in a ‘not enemy combatant’ would just send ripples through the entire process,” he said. “The interpretation is, ‘You got the wrong result. Do it again.’ ”
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He said his concerns about the fairness of the hearings had grown as time passed. “The hearings amounted to a superficial summary of information, the quality of which would not have withstood scrutiny in any serious law-enforcement or intelligence investigation,” he said.
While in Washington, he stayed with a sister, Susan J. Borschel, a real estate lawyer. Last week, she recalled Colonel Abraham’s saying that he was troubled by the way the Pentagon was running the hearings. It was a notable observation, she said, from a “law and order” man.
Soon, Colonel Abraham said in one of the conversations, he began to worry that involvement in the process might be improper for a lawyer because there were so many shortcuts. “There were too many assumptions. Too many presumptions,” he said. He said he had expressed his concerns to supervising officers.
His law partner, Steven Fink, said that would not have been unusual. “You will get his opinion whether you want it or not,” Mr. Fink said.
Colonel Abraham’s misgivings reached a peak in December 2004.
On Dec. 10, he wrote a letter to Rear Adm. James M. McGarrah, who was running the hearings operation. In the letter, a copy of which he provided to The New York Times, Colonel Abraham asked to be released from his assignment, saying participation “may be in conflict with my obligations as an attorney.” He said he had never received an official response.
He finished his tour, which ended in March. He came back to his life in Newport Beach and, he said, more or less forgot about Guantánamo.
As it turned out, lawyers at his sister’s firm, Pillsbury Winthrop Shaw Pittman, began representing detainees in 2006. Though she is not involved, she mentioned that her brother had worked on the hearings.
Last month, one of the lawyers, Matthew J. MacLean, a former Army lawyer, called Colonel Abraham and asked him to look at an affidavit filed in May by Admiral McGarrah.
Colonel Abraham said the admiral’s affidavit, describing the hearing process as orderly and considered, had convinced him that he had to step forward. He began to describe his experience.
“This was it,” Mr. MacLean said last week, “the first evidence of how these tribunals operated from the inside.”
Mr. MacLean called Colonel Abraham for the first time on June 8. The detainees’ lawyers filed his seven-page affidavit in court on June 22. It was sharply critical of the hearings and the evidence they used, saying “what purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.” On June 29, the Supreme Court announced that it would hear the detainees’ case.
One of the tribunals the lawyers have learned more about since then was the one on which Colonel Abraham sat. Documents they have gathered show that he was assigned to the panel in November 2004. The detainee was a Libyan, captured in Afghanistan, who was said to have visited terrorist training camps and belonged to a Libyan terrorist organization.
By a vote of 3 to 0, the panel found that “the detainee is not properly classified as an enemy combatant and is not associated with Al Qaeda or Taliban.”
Two months later, apparently after Pentagon officials rejected the first decision, the detainee’s case was heard by a second panel. The conclusion, again by a vote of 3 to 0, was quite different: “The detainee is properly classified as an enemy combatant and is a member of or associated with Al Qaeda.”
Colonel Abraham was never assigned to another panel.
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Second post of the morning:
Speak and Be Sued
July 23, 2007; Page A14
A rider of New York City's subways would have to have his nose stuck way deep in his morning newspaper to avoid seeing the anti-terrorism placards urging: "If you see something, say something." Now, if some Democrats in Washington have their way, the signs will need to be amended to read, "If you see something and say something, prepare to be sued."
That's the message the six "flying imams" tried to deliver in November when suspicious behavior got them thrown off a US Airways flight from Minneapolis -- and the passengers who blew the whistle on them threatened with lawsuits. And that's the message endorsed by Democrats in Congress who are pressuring a conference committee to remove language from the final homeland security bill that would confer civil immunity on citizens who "in good faith" report suspicious behavior to authorities.
This "John Doe provision" passed the House in March by a bipartisan vote that included every Republican and 105 Democrats. Opponents argue that it "could invite racial and religious profiling," as Senator Patrick Leahy said last week.
When it looked like Democrats would use a technicality to strip the John Doe provision out of the bill, Republicans forced a vote last week by adding it as an amendment to the education bill. The amendment was rejected on procedural grounds in a late-night session Thursday by a vote of 57-39, three short of the supermajority needed to pass. Democrats voting in favor of the provision included New York Senators Hillary Clinton and Chuck Schumer.
The fate of "John Doe" now falls to the conference committee, headed by Senator Joe Lieberman, who supports the provision, and Rep. Bennie Thompson, who opposes it. This week the committee is expected to release the final version of the homeland security bill, implementing the remaining recommendations of the 9/11 Commission. Leading Democrats -- including Senate Judiciary Chairman Leahy, Majority Leader Harry Reid, and House Judiciary Chairman John Conyers -- continue to work behind the scenes to scuttle the immunity clause, throwing up procedural obstacles and insisting that other committees must have a say.
New York's Metropolitan Transportation Authority said last week that the subway tipline had received 1,944 reports in 2006. We'll never know precisely how many terrorist acts may have been prevented because of those workaday whistleblowers. But as the Fort Dix plot -- uncovered by a retail clerk -- proves, vigilance works.
Rep. Peter King, the New York Republican who drafted the John Doe provision, asks how Democrats "can possibly say they're passing 'the ultimate comprehensive homeland security bill' while eliminating the provision that protects people who report terrorist activity." Good question.
WSJ
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stratfor.com
PAKISTAN: A high-ranking pro-Taliban tribesman was killed today after Pakistani forces surrounded him in the southwestern part of Balochistan province, an Interior Ministry spokesman told Reuters. Abdullah Mehsud was accused of kidnapping two Chinese engineers not long after being released from Guantanamo Bay detention center in 2004.
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WSJ
Wiretap Debacle
How politics has gutted the terrorist surveillance program.
Friday, July 27, 2007 12:01 a.m. EDT
The U.S. homeland hasn't been struck by terrorists since September 11, and one reason may be more aggressive intelligence policies. So Americans should be alarmed that one of the best intelligence tools--warrantless wiretapping of al Qaeda suspects--has recently become far less effective and is in danger of being neutered by Congressional Democrats.
President Bush approved this terrorist surveillance not long after 9/11, allowing intelligence officials to track terrorist calls overseas, as well as overseas communications with al Qaeda sympathizers operating in the U.S. The New York Times exposed the program in late 2005, and Democrats and antiwar activists immediately denounced it as an "illegal" attempt to spy on Americans, à la J. Edgar Hoover.
Democratic leaders were briefed on the program from the first and never once tried to shut it down. But once it was exposed, these same Democrats accused Mr. Bush of breaking the law by not getting warrants from the special court created under the Foreign Intelligence Surveillance Act (FISA) of 1978. Mr. Bush has rightly defended the program's legality, but as a gesture of compromise in January he agreed to seek warrants under the FISA process.
This has turned out to be an enormous mistake that has unilaterally disarmed one of our best intelligence weapons in the war on terror. To understand why, keep in mind that we live in a world of fiber optics and packet-switching. A wiretap today doesn't mean the FBI must install a bug on Abdul Terrorist's phone in Peshawar. Information now follows the path of least resistance, wherever that may lead. And because the U.S. has among the world's most efficient networks, hundreds of millions of foreign calls are routed through the U.S.
That's right: If an al Qaeda operative in Quetta calls a fellow jihadi in Peshawar, that call may well travel through a U.S. network. This ought to be a big U.S. advantage in our "asymmetrical" conflict with terrorists. But it also means that, for the purposes of FISA, a foreign call that is routed through U.S. networks becomes a domestic call. So thanks to the obligation to abide by an outdated FISA statute, U.S. intelligence is now struggling even to tap the communications of foreign-based terrorists. If this makes you furious, it gets worse.
Our understanding is that some FISA judges have been open to expediting warrants, as well as granting retroactive approval. But there are 11 judges in the FISA rotation, and some of them have been demanding that intelligence officials get permission in advance for wiretaps. This means missed opportunities and less effective intelligence. And it shows once again why the decisions of unaccountable judges shouldn't be allowed to supplant those of an elected Commander in Chief.
When the program began, certain U.S. telecom companies also cooperated with the National Security Agency. But they were sued once the program was exposed, and so some have ceased cooperating for fear of damaging liability claims. We found all of this hard to believe when we first heard it, but we've since confirmed the details with other high-level sources.
Director of National Intelligence Michael McConnell more or less admitted the problem last week, albeit obliquely, when he told the Senate that "we're actually missing a significant portion of what we should be getting." That's understating things. Our sources say the surveillance program is now at most one-third as effective as it once was.
The Bush Administration bears much of the blame for this debacle. White House officials hoped that by agreeing to put the wiretaps under FISA authority, they could lower the political temperature and reach an accommodation with Congress. But no Administration has ever conceded that FISA trumps a President's Constitutional power to place wiretaps in the name of national security. The courts have also explicitly upheld this Presidential power. Mr. Bush was making a needless concession that Democrats have used against him as they refuse to compromise.
The Administration wants Congress to modernize FISA in two crucial ways: First, by allowing NSA to track on a real-time basis these foreign calls that may be routed through the U.S., and in some cases allowing warrants to be sought after the fact. Our spooks would still be accountable, but they'd also be able to act quickly to defend the country. Second, the White House is requesting liability protection for telecom companies that cooperate with the wiretap program. Neither of these changes should be at all controversial--and we're confident they'd have overwhelming public support if the issues were understood.
Yet for six months Senate Democrats have resisted these legal changes to make Americans safer. Incredibly, they are fronting for their trial lawyer campaign donors in blocking liability protection. Their counteroffer is to have the federal government supplant the companies as the defendants in any wiretapping lawsuits, as if any such lawsuits were justified. Why are Democrats letting trial lawyers interfere with a vital intelligence operation?
Meanwhile, Senate Judiciary Chairman Patrick Leahy is holding any wiretap legislation hostage to his demand for Administration documents related to the program. This is part of the Democrats' political exercise to claim that Mr. Bush has somehow broken the law by allowing the wiretaps. Backed by grandstanding Republican Arlen Specter, in short, Mr. Leahy is more interested in fighting over how the program began than in allowing it to continue today.
At least a few Democrats realize they may be setting themselves up for trouble if there's another terrorist attack. House Intelligence Chairman Silvestre Reyes wrote to Mr. Bush last week saying he was "very concerned" about the program and urging the Administration to "devote all the resources necessary to ensure that we are conducting maximum surveillance of the terrorist target abroad."
Mr. Reyes went on to note that "FISA does not require a warrant for communications between two individuals outside the United States. If clarifications to the law are necessary, we are prepared to deal with this." That'll serve Mr. Reyes well as political cover if the next 9/11 Commission asks who ruined the terrorist surveillance program. But if he's serious about national security, he should send his next letter to Senate Democrats.
Six months is too long for Mr. Bush to cater to Pat Leahy while Americans are put at risk. The President should announce immediately that he is rescinding his concession to put these foreign wiretaps under the FISA court. He should say he is doing so as an urgent matter of national security as Commander in Chief because Congress has refused to respond in good faith by modernizing the law to let the U.S. eavesdrop on terrorists who wish us deadly harm. Then let Democrats explain why they're willing to put partisanship above the safety of America.
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WSJ
AL QAEDA WATCH
The Real Wiretapping Scandal
Our Terrorist Surveillance Program isn't as effective it was a few months ago. Where's the outrage?
BY DAVID B. RIVKIN, JR. AND LEE A. CASEY
Monday, July 30, 2007 12:01 a.m. EDT
Last Tuesday's Senate Judiciary Committee hearing--at which Attorney General Alberto Gonzales was insulted by senators and ridiculed by spectators--was Washington political theater at its lowest. But some significant information did manage to get through the senatorial venom directed at Mr. Gonzales. It now appears certain that the terrorist surveillance program (TSP) authorized by President Bush after 9/11 was even broader than the TSP that the New York Times first revealed in December 2005.
It is also clear that Mr. Gonzales, along with former White House Chief of Staff Andrew Card, tried to preserve that original program with the knowledge and approval of both Republican and Democratic members of key congressional committees. Unfortunately, they failed and the program was narrowed. Today, the continuing viability of even the slimmed-down TSP--an indispensable weapon in the war on terror--remains in serious doubt.
The administration's most immediate concern since 9/11 has understandably been whether al Qaeda sleeper agents, already inside the U.S., would carry out additional catastrophic strikes. To counter this real and continuing threat, President Bush authorized the National Security Agency (NSA) to intercept a full range of al Qaeda communications, presumably on a global basis.
The TSP was not implemented pursuant to the Foreign Intelligence Surveillance Act (FISA), which permits a special federal court to issue surveillance orders when Americans and others are targeted for intelligence gathering inside the U.S. Rather than utilizing FISA's cumbersome and restrictive procedures, the administration relied on the president's inherent constitutional authority as commander in chief to monitor enemy communications in wartime, as presidents have done since Lincoln's day.
In addition, the administration correctly relied on Congress's Sept. 18, 2001, authorization for the use of military force against al Qaeda. In 2004, the Supreme Court ruled that this statute authorized the president to employ all the "fundamental incident\[s\] of waging war." This, by any reasonable standard, would include secretly listening in on the enemy's phone calls, and reading their faxes, emails and text messages.
At least, that is what one would have thought. In December 2005, however, a firestorm of controversy erupted when The New York Times published a story describing the TSP. Although it was clear from the beginning that the program targeted al Qaeda--a particular communication was intercepted based on the presence of a suspected al Qaeda operative on at least one end--and not directed at ordinary Americans going about their daily routines, the administration's critics quickly wove the TSP into their favorite overarching anti-Bush narrative. They cited it as just one more example of a supposedly power-hungry president, the new "king George," chewing up our civil liberties.
Administration officials, including Attorney General Gonzales, repeatedly explained the TSP to Congress and the public, presumably to an extent consistent with continuing national security imperatives. In particular, they said that only communications where at least one party to the conversation was outside of the U.S. were intercepted; purely domestic calls were not in play. But after months of congressional pressure, and having failed to secure new legislation that would have fundamentally revised FISA, the administration announced in January this year that it had reached an agreement with the special FISA court to bring the TSP under judicial auspices.
The administration also claimed that the program remained as encompassing as before, so that no national security interest had been compromised by the new arrangement. The TSP's defenders were skeptical. Given how FISA orders are normally sought and granted, it is difficult to believe that they could be used to surveil all conversations of legitimate security interest--such as those involving people who are not full-fledged al Qaeda members, but who are its witting or unwitting supporters. Intercepting the full spectrum of al Qaeda communications is indispensable to obtaining a full picture of its activities, and protecting the American people from attack.
And while the FISA concession put new restrictions on a program that had successfully protected America from attack since 9/11, it did not dampen the TSP controversy. In May, former Deputy Attorney General James Comey described--before a far more congenial Senate Judiciary Committee--a dramatic late night confrontation in March, 2004. It involved Mr. Comey, FBI Director Robert Mueller, Mr. Gonzales and Mr. Card, all gathered in the hospital room of then Attorney General John Ashcroft. Mr. Ashcroft, who must have signed off on, or at least have known about, the TSP years before, had transferred his authority to Mr. Comey for the duration of his gallbladder surgery. Mr. Comey refused to re-approve the program (which was expiring the next day) because of legal concerns, and the White House wanted Mr. Ashcroft to overrule him.
Mr. Ashcroft, however, now sided with Mr. Comey. Reportedly, he and others even threatened to resign if Mr. Comey did not get his way. The matter quickly reached the president, who authorized Mr. Comey to revise the TSP. The result, it should be emphasized, was the restructured TSP, which was subsequently revealed and vociferously attacked by the administration's critics in December 2005. Those critics, in and out of Congress, immediately seized upon Mr. Comey's May 15 testimony as proof that Mr. Gonzales had lied to Congress when he stated earlier that there was no disagreement at Justice regarding the TSP's legality.
Last Tuesday, however, the circumstances of this midnight drama and the nature of the issues at stake got a lot clearer. Mr. Gonzales, who obviously is still trying to explain things without revealing TSP details that remain classified, noted that the emergency visit to Mr. Ashcroft came after a meeting with White House personnel and the so-called "gang of eight"--the heads of various congressional intelligence committees--who agreed that the TSP had to continue. (Predictably, a number of "gang of eight" Democrats dispute this consensus, but they were clearly aware of the program and presumably White House logs can verify their meeting attendance.)
What now seems equally indisputable is that Mr. Gonzales did not lie to Congress--top Justice Department officials had all approved the 2005 TSP to which he was referring. The disagreement described by Mr. Comey involved the original TSP, in place from 2001-2004. This also explains Mr. Gonzales's statement Tuesday, which prompted calls for the appointment of a special counsel to investigate him for perjury, that the White House meeting with congressional leaders was devoted to discussion of "other intelligence activities." In the language of congressional intelligence oversight, even minimal differences between one program and another can constitute "other" distinct intelligence activities. In this context, Mr. Gonzales was clearly referring to the original TSP, the details of which remain classified, and not the 2005 TSP. Although it is impossible to know for sure, it is a good bet that the original TSP--to which Mr. Comey objected--was broader than the 2005 program and that it permitted interception of al Qaeda communications entirely within the United States (and may also be connected in some manner to datamining efforts, as suggested in Sunday's New York Times).
Such interceptions, unlike the monitoring of international wire traffic, could not be plausibly claimed to fall outside of FISA's language, although they could certainly be justified based on the president's wartime authority to spy on the enemy. Evidently, Mr. Comey didn't think so--or at least was unprepared to issue a compliance certification on the point. Reasonable minds can disagree here, but there was nothing inappropriate about White House officials trying to have Mr. Comey overruled by his boss. John Ashcroft certainly could have reassumed his authority as attorney general, even in his hospital bed.
What has gotten lost in all of this increasingly sordid game of political gotcha is the viability of a critical program in the war on terror. The TSP was brought under the FISA court's jurisdiction this January, allegedly without impairing its effectiveness. But FISA orders are not permanent. They must be periodically reissued, and FISA judges rotate. As an editorial on the facing page of the Journal first reported Friday, well-placed sources say that today's FISA-compliant TSP is only about "one-third" as effective as the 2005 version--which, in turn, was less comprehensive than the original program. This is shocking during a summer of heightened threat warnings, and should be unacceptable to Congress and the American people.
The problem is particularly acute because FISA's 1978 framework has been rendered dysfunctional by the evolution of technology. FISA was enacted in a world where intercepts of purely foreign communications were conducted overseas, and were entirely exempt from the statutory strictures. Only true U.S. domestic communications were intercepted on U.S. soil and these intercepts were subjected to FISA's prescriptive procedures. Yet, with today's fiber optic networks functioning as the sinews of the global communications system, entirely foreign calls--say between al Qaeda operatives overseas--often flow through U.S. facilities and can be most reliably intercepted on American soil. Subjecting these intercepts to FISA strictures is absurd.
Moreover, the very fact that the intelligence community operates in a state of continued uncertainty about what precise surveillance parameters would be allowed in the future--instead of having the collection efforts driven entirely by the unfolding operational imperatives--is both unprecedented in wartime and highly detrimental. In past wars, as fighting continued, valuable battlefield experience was gathered, causing weapons systems, military organization and combat techniques to improve consistently. In this difficult war with al Qaeda, by contrast, the key battlefield intelligence-gathering program has been repeatedly emasculated.
Congress' obsession with the TSP's legal pedigree has become the major threat to its continued viability, rivaling in its deleterious impact the infamous "wall," much criticized by the 9/11 Commission, which prevented information sharing between the Justice Department's intelligence and law-enforcement divisions. It is hypocritical for those in Congress who preach fidelity to the 9/11 Commission recommendations to behave so dramatically at odds with their spirit. The question Judiciary Committee members should have been asking Mr. Gonzales was not whether he had misled them--he clearly did not--but whether the TSP is still functioning well. The question the public should be asking those senators--and with not much more civility than the senators showed Mr. Gonzales--is what are they going to do about it if the answer is no.
Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.
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'Get Smart' in Washington
Democrats pretend to be serious about intelligence.
Friday, August 3, 2007 12:01 a.m. EDT
Imagine this scenario: U.S. intelligence against al Qaeda has declined by two-thirds because of court restrictions, and President Hillary Rodham Clinton is asking Congress to fix the problem. But Senate Republicans refuse to cooperate until the White House turns over executive branch documents, and because they won't protect phone companies from lawsuits for cooperating on the wiretaps.
Do you think President Clinton would be denouncing Congress? Or that there might be a political uproar? Or that the press corps would assail Republicans for endangering national security?
Yet this is precisely what is now happening in Washington--albeit with the political party roles reversed--and almost nobody seems to care. President Bush is mum while his aides beg Congress to do something, and Democrats claim they want to help but keep adding legal roadblocks that would continue to limit U.S. intelligence. The only person showing any alarm is Pete Hoekstra of Michigan, the ranking Republican on the House Intelligence Committee, but he's in the minority and so is ignored by the press.
As we reported last week, Director of National Intelligence Michael McConnell has been working behind the scenes for weeks to restore what even Democrats now concede is declining U.S. ability to eavesdrop on terrorists abroad. The phone companies have limited their cooperation due to the risk of lawsuits following the New York Times exposure of the wiretap program in 2005.
Mr. Bush's January decision to subject these wiretaps to the supervision of the special FISA court has eroded intelligence even further. In many cases, the National Security Agency now needs a warrant to tap even foreign-to-foreign contacts that happen to be routed through U.S. telephone switches. No wonder Osama bin Laden thinks America is a "weak horse." Our politicians are behaving with all the gravitas of Don Adams listening to the phone in his shoe in "Get Smart."
Democrats are the worst actors here because they won't even agree to mere six-month legal fix before they leave town this weekend for their August vacation. The White House has already compromised far too much and is only asking for two main temporary changes: Allow foreign-to-foreign calls to be tapped without a warrant. And if Democrats won't give the phone companies retroactive liability protection, then at least give them prospective immunity so they can cooperate from now on.
But even this is proving to be too much for Democratic leaders, who are apparently worried more about MoveOn.org than they are about another intelligence failure. They say they want to fix the foreign-to-foreign problem. But they're worried that a suspected foreign terrorist might call someone in the U.S., either a citizen or permanent resident, and so they have been insisting that any wiretap on that terrorist's communications require a warrant from the FISA court.
Thus if Ayman al-Zawahiri calls a terror cell in Detroit to give the green light for an operation, the NSA had better get a warrant before it listens in. Warrants for wiretaps on such calls originating overseas have never been required on FISA, for the obvious reason that foreign enemies don't deserve the same due process protections as U.S. citizens. What Democrats are seeking is an entirely new restriction on the executive branch's ability to gather intelligence during wartime.
By our deadline yesterday evening, Democrats were also still insisting on limiting warrantless wiretaps to known "foreign terrorists." Admiral McConnell, the DNI, wants to be able to listen in to the larger universe of "foreign targets" as well, because America's enemies include state actors and others who may not be terrorists or linked to al Qaeda. In other words, Democrats want the NSA to get a warrant even to listen to, say, North Korean spies.
And all of this, keep in mind, would only be for a six-month fix. If Mr. Bush wants a permanent fix for the next President, the White House would still have to deal with Democratic demands for documents related to the origins of the warrantless wiretap program after 9/11. Judiciary Chairman Pat Leahy has been blocking any wiretap compromise until the White House discloses documents that may well be protected under executive privilege. Mr. Leahy's purpose isn't to sort out the right policy but to score partisan points by claiming the Bush Administration has broken the law. Never mind that every President has claimed the Constitutional power to wiretap our enemies without a warrant in the name of national security.
This episode is most distressing for what it reveals about the unseriousness of our political class. Democrats so loathe the Bush Administration that they are willing to throw away one of our best weapons in the war against al Qaeda. It's long past time the President stopped pleading with Congress, and started explaining this outrage to the American people.
WSJ
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NYTimes
Britain Asks to Take Back 5 Guantánamo Detainees
By RAYMOND BONNER
Published: August 8, 2007
LONDON, Aug. 7 — In a shift in policy, Britain on Tuesday asked the United States to release five detainees at Guantánamo Bay, Cuba, who have resided in Britain but are not citizens.
Back Story With The Times’s Raymond Bonner (mp3)The Bush administration has said it has been looking for ways to reduce the Guantánamo population, and ultimately close the detention center there, which the request by the British might advance.
“We saw this as an opportunity to achieve ultimately the closure of Guantánamo,” a British official said, speaking on the customary condition of anonymity.
Under former Prime Minister Tony Blair, the government had insisted that it had no obligation to assist the men because they were not British citizens, though all had legal residence status here.
A senior American official said the impetus for the policy shift had come from a lawsuit in Britain in which some of the remaining British detainees sought to force the government to intervene on their behalf.
The State Department appeared to welcome the move, which American and British officials said had been under discussion for several months, including during talks in July between the British foreign secretary, David Miliband, and Secretary of State Condoleezza Rice. The Bush administration has been working with other countries to reduce the detainee population at Guantánamo, the State Department spokesman, Sean McCormack, said in Washington on Tuesday. The base at Guantánamo now holds about 385 detainees.
At the same time, Mr. McCormack flagged a potentially contentious issue: what restrictions, if any, will be placed on the detainees if they are returned to Britain. Before releasing them, the United States wants assurances that they “would be secured, meaning that they wouldn’t be allowed to walk free,” he said.
A Pentagon spokesman, Cmdr. J. D. Gordon, said conditions set by the United States for the release of any Guantánamo detainee to a host government include providing “credible assurances that they will be treated humanely” and guarantees “that the countries will take steps to mitigate the threat that these individuals pose to the United States and its allies.”
Commander Gordon said 420 detainees had been released from Guantánamo, 38 of whom were no longer viewed as “enemy combatants.” Commander Gordon said about 80 more detainees had been cleared for departure.
The British Foreign Office said in a statement that if the men were returned, they would be subject to the same security considerations “as would apply to any other foreign national in this country.” It said talks between the United States and Britain about the men’s release “may take some time.”
Nine British citizens were released from Guantánamo in 2004 and 2005. The Bush administration had expected those men to be tried and incarcerated for some period, and was dismayed when they were allowed to go free. Several have gone on to become near-celebrities here.
One sticking point has been the conditions that the United States wants imposed on any detainees returned to Britain.
In the lawsuit here on behalf of some of the British detainees, British officials said that if the men were to be returned, the United States wanted them to be jailed for a period of time. Upon their release, the United States wanted them to be closely monitored, including communications intercepts, according to statements by David Richmond, the director general for intelligence at the Foreign Office, and William Nye, the director of counterterrorism at the Home Office. The statements were filed last year in a case brought by two of the five detainees whose transfer is now being considered.
Such conditions would be illegal under British and European human rights laws, and would require an onerous commitment of British intelligence resources, the British officials have said.
Clive Stafford Smith, a lawyer who represents the five men, said, “We’d be willing to submit to any reasonable restrictions.”
Referring to Gordon Brown, the new prime minister, Mr. Stafford Smith said the British move was “a sign that the new Brown administration recognizes that human rights are important in the battle against terrorism.”
One of the five men on the list Britain submitted Tuesday, Jamil el-Banna, was approved to leave Guantánamo by the American military authorities in May, but is still being held because the British would not take him.
Mr. Banna was seized by the Central Intelligence Agency in 2002 in Gambia, where he had gone on a business trip. British intelligence agencies had been monitoring him because of his ties to Islamic radicals here and had alerted the C.I.A. of his travel to Gambia. But the agency had specifically requested that he not be arrested, according to a recent British government report.
The four other men are Shaker Aamer, Omar Deghayes, Binyam Mohamed and Abdennur Sameur.
Several Bush administration officials said that particular scrutiny would be given to Mr. Aamer and Mr. Mohamed, who are considered more serious threats than the others.
Mr. Mohamed, a gangly Ethiopian who had lived in Washington for two years as a teenager before his family moved to Britain, was seized in Pakistan in April 2002 and turned over to the Americans. His was one of the early cases of rendition, the Bush administration’s policy of secretly moving suspected terrorists to third countries for interrogation.
Mr. Mohamed was taken to Morocco, Mr. Stafford Smith said, where he was held and interrogated for 18 months. According to the accounts he gave to his lawyer, he was brutally abused there. American officials initially said he was an accomplice of Jose Padilla in a plot to detonate a dirty bomb in the United States. That charge against Mr. Padilla was eventually dropped. Mr. Mohamed has not been formally charged.
Mr. Deghayes, who moved to Britain from Libya in 1986, was seized in Pakistan in January 2002. He has been held in Guantánamo as an enemy combatant, and military officials have contended that he traveled from Pakistan to Afghanistan under the guidance of Al Qaeda, and that he had a good relationship with Osama bin Laden.
The American evidence against him also included a photograph that was said to show him in Chechnya. At Mr. Deghayes’s administrative review board hearing at Guantánamo in 2005, he generally denied links to Al Qaeda and introduced testimony from a expert that he was not the person in the picture.
Mr. Deghayes has been a leader of hunger strikes at Guantánamo, as has Mr. Aamer, a native of Saudi Arabia. He has denied American accusations that he had ties to Al Qaeda.
The fifth detainee, Mr. Sameur, is an Algerian who fled his country in 1999 and was granted political asylum in Britain. In 2001 he went to Afghanistan, where American officials have accused him of training at a Qaeda camp, which he denies. He fled Afghanistan in October 2002, and was picked up by the Pakistani Army and turned over to the Americans.
Thom Shanker contributed reporting from Washington.
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Second post of the morning:
WSJ
Reason and Wiretaps
What the terrorist surveillance fight is really all about.
Wednesday, August 8, 2007 12:01 a.m. EDT
To hear the critics tell it, the warrantless wiretapping law passed by Congress this weekend is an immoral license for a mad President Bush and his spymasters to eavesdrop on all Americans. For those willing to believe such things, mere facts don't matter. But for anyone still amenable to reason, the deal is worth parsing for its national security precedents, good and bad. The next Democratic President might be grateful.
The good news is that the new law will at least allow the National Security Agency to monitor terrorist communications again. That ability has been severely limited since January, when Mr. Bush agreed to put the wiretap program under the supervision of a special court created by the 1978 Foreign Intelligence Surveillance Act (FISA). The new law provides a six-month fix to the outdated FISA provision that had defined even foreign-to-foreign calls as subject to a U.S. judicial warrant.
The first duty of Director of National Intelligence Michael McConnell is to prevent the next terrorist attack, and it's disgraceful that some have vilified him for trying to revive our intelligence ability in that cause. His effort has been no different, and no less honorable, than a general arguing for more troops.
But it's important to understand for the debate ahead why all of this has become so ferociously controversial. Opposition from the Democratic left to this intelligence program isn't merely part of the partisan blood feud against a weak President near the end of his term. It is part of a far larger ideological campaign to erode Presidential war powers. Goaded by the ACLU and much of the press corps, many Democrats want to use the courts and lawsuits to restrict Mr. Bush and future Presidents in their ability to gather intelligence in the war on terror. For a flavor of this strategy, spend a few minutes on the ACLU's Web site.
In that regard, even the weekend deal is far from encouraging. For example, the new law does not offer explicit liability protection for telecom companies that cooperate with the wiretap program. Instead, the most Democrats would accept is language to "compel" the cooperation of these companies going forward. The Administration hope is that this "I had no choice" claim will be an adequate defense against future lawsuits, but in the U.S. tort lottery that is no sure thing.
Meantime, Democrats blocked any retroactive liability protection for companies that thought they were doing their patriotic duty by cooperating with the National Security Agency after 9/11. The goal here isn't merely to open another rich target for the tort bar. It is to use lawsuits to raise the costs for private actors of cooperating with the executive branch. Even if they lose at the ballot box or in Congress, these antiwar activists still might be able to hamstring the executive via the courts.
That's also the explicit strategy in trying to expand the reach of the special FISA court to all wiretaps, foreign and domestic. The left is howling that the NSA will no longer need a FISA warrant for each wiretap (of which there were 2,176 in 2006). That's the best part of the bill. But the Administration did concede to let FISA judges review the procedures for wiretapping up to 120 days after the fact. If a judge objects, the wiretapping can at least continue, pending appeal all the way to the Supreme Court.
This is the kind of review that judges are neither allowed to perform under the Constitution, nor equipped to provide as a matter of policy. Whatever the merits of the 1978 FISA law, no Administration has ever conceded that that law trumped a President's power to make exceptions to FISA if national security requires it. To do so would be a direct infringement on the President's Article II powers as Commander in Chief to protect the nation against its enemies.
The courts have been explicit about this, with the FISA appellate court asserting in a 2002 opinion (In Re: Sealed Case) that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed.
In the weekend deal, the Bush Administration grants the FISA court power to review procedures even for foreign communications, which is unprecedented. Under Article III of the Constitution, the courts are granted the power to settle disputes. The judiciary also has power under the Fourth Amendment, which gives courts the ability to issue warrants. But nowhere does the Constitution empower our nation's judges to serve as foreign policy advisers or reviewers of intelligence policy. Judges have no particular expertise on intelligence, and in any case they are unaccountable to voters if their decisions are faulty. Recent news reports have suggested that several current FISA judges are uncomfortable with making such intelligence decisions, and rightly so.
As for the possibility that Presidents will abuse this power, fear of exposure is an even more powerful disincentive than legal constraint. The political costs of being seen as spying on Americans for partisan ends would be tremendous. Congress, on the other hand, is only too happy to use the courts to squeeze executive power, in part because this allows the Members to dodge responsibility themselves. If there's another terror attack, the President still gets the blame even if some unelected judge refused a warrant. Congress can blame everyone else.
This is a statutory version of Senator Jay Rockefeller's famous decision to write a letter to Dick Cheney objecting to the warrantless wiretap program after he'd been briefed on it, but then sticking the letter (literally) in a drawer. Only after the program was exposed did he unearth the letter to show he'd objected all along, though he'd done nothing at all to stop it.
The weekend law expires in six months, and it would be nice to think enough Democrats would put aside this ideological obsession to work with Mr. Bush on a more permanent wiretap statute. Given the current state of Beltway rationality, we aren't optimistic.
As negotiations unfold, we hope the President resists any deal that compromises the ability of his successors to defend the country. In 18 months, Mr. Bush will be leaving office, but the terrorist threat will continue. The stakes are too large for any President to accept new judicial limitations on his ability to track terrorists at home or abroad. Rather than accept such limits, Mr. Bush could use Congressional recalcitrance as an opportunity to withdraw the terrorist surveillance program from FISA authority, and thus toss the issue squarely in the middle of the 2008 Presidential campaign.
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The Padilla Verdict
August 17, 2007; Page A12
It took a Miami jury merely a day and a half to convict Jose Padilla, alias Abdullah al-Muhajir, and two co-defendants of terrorism charges that carry a sentence of life imprisonment.
The quick verdict yesterday suggests that the prosecution's evidence in the three-month trial was overwhelming and unambiguous. It ought to quiet opponents of the war on terror who claimed that the reason Padilla was originally held as an enemy combatant -- because he was believed to have been involved in a plot to set off a radioactive "dirty bomb" in a U.S. city -- was a figment of President Bush's or John Ashcroft's imagination.
Of course, it won't. Watch instead as they cite Padilla's conviction as evidence for another favorite claim: that the civilian criminal-justice system is adequate to the task of preventing terrorism, and thus the military shouldn't be holding enemy combatants at all.
In fact, Padilla's case demonstrates the opposite. Before yesterday's verdict, war foes were sneering that prosecutors weren't even charging him in the dirty-bomb plot. That is true, but the reason he wasn't charged for that crime is that the case was procedurally deficient: The military didn't read Padilla his Miranda rights or provide him a lawyer when it interrogated him. Padilla was convicted instead of conspiracy to murder, kidnap and maim people overseas. That means that if war opponents had their way, and if Padilla had been guilty only of planning to kill Americans on U.S. soil, he would walk free today.
This problem may be remediable in a similar future case. No doubt the next time a terrorist is picked up at O'Hare International Airport, FBI agents will read him his rights and make sure to honor them. But it is unreasonable to expect soldiers, Marines and intelligence officers on foreign battlefields to follow police procedures at the same time they're dodging bullets and trying to extract information to prevent attacks on Americans back home. The Padilla decision is reassuring in many respects, but it is not a model for the future handling of enemy combatants.
WSJ
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Jose Padilla Makes Bad Law
By MICHAEL B. MUKASEY
August 22, 2007; Page A15
The apparently conventional ending to Jose Padilla's trial last week -- conviction on charges of conspiring to commit violence abroad and providing material assistance to a terrorist organization -- gives only the coldest of comfort to anyone concerned about how our legal system deals with the threat he and his co-conspirators represent.
Jose Padilla, in an undated driver's license photo
He will be sentenced -- likely to a long if not a life-long term of imprisonment. He will appeal. By the time his appeals run out he will have engaged the attention of three federal district courts, three courts of appeal and on at least one occasion the Supreme Court of the United States.
It may be claimed that Padilla's odyssey is a triumph for due process and the rule of law in wartime. Instead, when it is examined closely, this case shows why current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism.
Padilla's current journey through the legal system began on May 8, 2002, when a federal district court in New York issued, and FBI agents in Chicago executed, a warrant to arrest him when he landed at O'Hare Airport after a trip that started in Pakistan. His prior history included a murder charge in Chicago before his 18th birthday, and a firearms possession offense in Florida shortly after his release on the murder charge.
Padilla then journeyed to Egypt, where, as a convert to Islam, he took the name Abdullah al Muhajir, and traveled to Saudi Arabia, Afghanistan and Pakistan. He eventually came to the attention of Abu Zubaydeh, a lieutenant of Osama bin Laden. The information underlying the warrant issued for Padilla indicated that he had returned to America to explore the possibility of locating radioactive material that could be dispersed with a conventional explosive -- a device known as a dirty bomb.
However, Padilla was not detained on a criminal charge. Rather, he was arrested on a material witness warrant, issued under a statute (more than a century old) that authorizes the arrest of someone who has information likely to be of interest to a grand jury investigating a crime, but whose presence to testify cannot be assured. A federal grand jury in New York was then investigating the activities of al Qaeda.
The statute was used frequently after 9/11, when the government tried to investigate numerous leads and people to determine whether follow-on attacks were planned -- but found itself without a statute that authorized investigative detention on reasonable suspicion, of the sort available to authorities in Britain and France, among other countries. And so, the U.S. government subpoenaed and arrested on a material witness warrant those like Padilla who seemed likely to have information.
Next the government took one of several courses: it released the person whose detention appeared on a second look to have been a mistake; or obtained the information he was thought to have, and his cooperation, and released him; or placed him before a grand jury with a grant of immunity under a compulsion to testify truthfully and, if he testified falsely, charge him with perjury; or developed independent evidence of criminality sufficiently reliable and admissible to warrant charging him.
Each individual so arrested was brought immediately before a federal judge where he was assigned counsel, had a bail hearing, and was permitted to challenge the basis for his detention, just as a criminal defendant would be.
The material witness statute has its perils. Because the law does not authorize investigative detention, the government had only a limited time in which to let Padilla testify, prosecute him or let him go. As that limited time drew to a close, the government changed course. It withdrew the grand jury subpoena that had triggered his designation as a material witness, designated Padilla instead as an unlawful combatant, and transferred him to military custody.
The reason? Perhaps it was because the initial claim, that Padilla was involved in a dirty bomb plot, could not be proved with evidence admissible in an ordinary criminal trial. Perhaps it was because to try him in open court potentially would compromise sources and methods of intelligence gathering. Or perhaps it was because Padilla's apparent contact with higher-ups in al Qaeda made him more valuable as a potential intelligence source than as a defendant.
The government's quandary here was real. The evidence that brought Padilla to the government's attention may have been compelling, but inadmissible. Hearsay is the most obvious reason why that could be so; or the source may have been such that to disclose it in a criminal trial could harm the government's overall effort.
In fact, terrorism prosecutions in this country have unintentionally provided terrorists with a rich source of intelligence. For example, in the course of prosecuting Omar Abdel Rahman (the so-called "blind sheik") and others for their role in the 1993 World Trade Center bombing and other crimes, the government was compelled -- as it is in all cases that charge conspiracy -- to turn over a list of unindicted co-conspirators to the defendants.
That list included the name of Osama bin Laden. As was learned later, within 10 days a copy of that list reached bin Laden in Khartoum, letting him know that his connection to that case had been discovered.
Again, during the trial of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, an apparently innocuous bit of testimony in a public courtroom about delivery of a cell phone battery was enough to tip off terrorists still at large that one of their communication links had been compromised. That link, which in fact had been monitored by the government and had provided enormously valuable intelligence, was immediately shut down, and further information lost.
The unlawful combatant designation affixed to Padilla certainly was not unprecedented. In June 1942, German saboteurs landed from submarines off the coasts of Florida and Long Island and were eventually apprehended. Because they were not acting as ordinary soldiers fighting in uniform and carrying arms openly, they were in violation of the laws of war and not entitled to Geneva Conventions protections.
Indeed, at the direction of President Roosevelt they were not only not held as prisoners of war but were tried before a military court in Washington, D.C., convicted, and -- except for two who had cooperated -- executed, notwithstanding the contention by one of them that he was an American citizen, as is Padilla, and thus entitled to constitutional protections. The Supreme Court dismissed that contention as irrelevant.
In any event, Padilla was transferred to a brig in South Carolina, and the Supreme Court eventually held that he had the right to file a habeas corpus petition. His case wound its way back up the appellate chain, and after the government secured a favorable ruling from the Fourth Circuit, it changed course again.
Now, Padilla was transferred back to the civilian justice system. Although he reportedly confessed to the dirty bomb plot while in military custody, that statement -- made without benefit of legal counsel -- could not be used. He was instead indicted on other charges in the Florida case that took three months to try and ended with last week's convictions.
The history of Padilla's case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions.
First, consider the overall record. Despite the growing threat from al Qaeda and its affiliates -- beginning with the 1993 World Trade Center bombing and continuing through later plots including inter alia the conspiracy to blow up airliners over the Pacific in 1994, the attack on the American barracks at Khobar Towers in 1996, the bombing of U.S. embassies in Kenya and Tanzania in 1998, the bombing of the Cole in Aden in 2000, and the attack on Sept. 11, 2001 -- criminal prosecutions have yielded about three dozen convictions, and even those have strained the financial and security resources of the federal courts near to the limit.
Second, consider that such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.
And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.
On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.
Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules -- in a case it has agreed to hear relating to Guantanamo detainees -- that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.
The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantanamo so as to paralyze interrogation of detainees. Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation -- a practice, known as rendition, followed during the Clinton administration.
At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.
What is to be done? The Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 appear to address principally the detainees at Guantanamo. In any event, the Supreme Court's recently announced determination to review cases involving the Guantanamo detainees may end up making commissions, which the administration delayed in convening, no longer possible.
There have been several proposals for a new adjudicatory framework, notably by Andrew C. McCarthy and Alykhan Velshi of the Center for Law & Counterterrorism, and by former Deputy Attorney General George J. Terwilliger. Messrs. McCarthy and Velshi have urged the creation of a separate national security court staffed by independent, life-tenured judges to deal with the full gamut of national security issues, from intelligence gathering to prosecution. Mr. Terwilliger's more limited proposals address principally the need to incapacitate dangerous people, by using legal standards akin to those developed to handle civil commitment of the mentally ill.
These proposals deserve careful scrutiny by the public, and particularly by the U.S. Congress. It is Congress that authorized the use of armed force after Sept. 11 -- and it is Congress that has the constitutional authority to establish additional inferior courts as the need may be, or even to modify the Supreme Court's appellate jurisdiction.
Perhaps the world's greatest deliberative body (the Senate) and the people's house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results.
Mr. Mukasey was the district judge who signed the material witness warrant authorizing Jose Padilla's arrest in 2002, and who handled the case while it remained in the Southern District of New York. He was also the trial judge in United States v. Abdel Rahman et al. Retired from the bench, he is now a partner at Patterson Belknap Webb & Tyler in New York.
WSJ
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Marines’ Trials in Iraq Killings Are Withering
By PAUL von ZIELBAUER
Published: August 30, 2007
CAMP PENDLETON, Calif., Aug. 29 — Last December, when the Marine Corps charged four infantrymen with killing Iraqi civilians in Haditha, Iraq, in 2005, the allegation was as dark as it was devastating: after a roadside bomb had killed their buddy, a group of marines rampaged through nearby homes, massacring 24 innocent people.
Status of the Cases In Iraq and in the United States, the killings were viewed as cold-blooded vengeance. After a perfunctory military investigation, Haditha was brushed aside, but once the details were disclosed, the killings became an ugly symbol of a difficult, demoralizing war. After a fuller investigation, the Marines promised to punish the guilty.
But now, the prosecutions have faltered. Since May, charges against two infantrymen and a Marine officer have been dismissed, and dismissal has been recommended for murder charges against a third infantryman. Prosecutors were not able to prove even that the killings violated the American military code of justice.
Now their final attempt to get a murder conviction is set to begin, with a military court hearing on Thursday for Staff Sgt. Frank D. Wuterich, the last marine still facing that charge. He is accused of killing 18 Iraqis, including several women and children, after the attack on his convoy.
If the legal problems that have thwarted the prosecutors in other cases are repeated this time, there is a possibility that no marine will be convicted for what happened in Haditha.
Nor is it yet clear whether officers higher up the chain of command than Sergeant Wuterich will be held responsible for the inadequate initial investigation.
At least one of the four Marine officers charged last December for failing to investigate the civilian deaths appears to be headed to court-martial. That officer, Lt. Col. Jeffrey R. Chessani, commander of Third Battalion, First Marines, “did not take personal action to fully investigate the actions leading to civilian deaths,” concluded Col. Christopher C. Conlin, the officer who examined the evidence.
But the case against Capt. Randy W. Stone, the battalion lawyer charged with failing to find out why so many civilians had been killed, was thrown out by Lt. Gen. James N. Mattis, whose decisions in the Haditha prosecutions are final. Charges against First Lt. Andrew A. Grayson, an intelligence officer, are in limbo because of his argument that the Marine Corps has discharged him.
In a wide range of cases involving abuses by American troops in Iraq and Afghanistan, prosecutions have tended to focus on enlisted men and noncommissioned officers — those accused of having personally committed the acts — not on officers who commanded the units. And while there have been numerous convictions, there have also been many cases in which plea arrangements allowed for lesser punishments, or in which charges were dropped or found not to be warranted.
The sole officer to face criminal charges in the abuses of prisoners at Abu Ghraib, Iraq, was convicted Tuesday on only one minor charge and will be reprimanded, Reuters reported, quoting an Army announcement. The officer, Lt. Col. Steven L. Jordan, faced five years in prison and dismissal from the Army, but a court-martial decided on the milder penalty, the Army said.
The court-martial acquitted him of the charge of being responsible for cruel treatment of detainees at Abu Ghraib.
Experts on military law said the difficulty in prosecuting the marines for murder is understandable, given that action taken in combat is often given immunity under the Uniform Code of Military Justice.
“One could view this as a case crumbling around the prosecutor’s feet, or one could see this as the unique U.C.M.J. system of justice in operation,” said Gary D. Solis, a former Marine judge who teaches the laws of war at Georgetown University Law Center and at West Point.
Prosecuting the Haditha case was especially difficult because the killings were not thoroughly investigated when they first occurred. Months later, when the details came to light, there were no bodies to examine, no Iraqi witnesses to testify, no damning forensic evidence.
On the other hand, some scholars said the spate of dismissals has left them wondering what to think of the young enlisted marines who, illegally or not, clearly killed unarmed people in a combat zone.
“It certainly erodes that sense that what they did was wrong,” Elizabeth L. Hillman, a legal historian who teaches military law at Rutgers University School of Law at Camden, said of the outcomes so far. “When the story broke, it seemed like we understood what happened; there didn’t seem to be much doubt. But we didn’t know.”
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Walter B. Huffman, a former Army judge advocate general, said it was not uncommon in military criminal proceedings to see charges against troops involved in a single episode to fall away under closer examination of evidence, winnowing culpability to just one or two defendants.
Status of the Cases When Sergeant Wuterich, the soft-spoken squad leader who faces the most extensive murder charges in the Haditha matter, walks into court here on Thursday, “all the prosecutorial attention is now going to center on him,” Mr. Solis said.
Sergeant Wuterich’s lawyers have an uphill legal fight. First, unlike the other marines who faced murder charges, Sergeant Wuterich is charged with the close-range killing of five unarmed men who were ordered out of a vehicle that rolled up near the scene.
Also, as a noncommissioned officer and the ranking member of the squad, Sergeant Wuterich may be used by prosecutors to argue that he had a greater responsibility to discern proper targets and avoid civilian casualties. He also led the attack against or was present in every house where civilians were killed.
But the earlier cases show that the defense has some opportunities, too.
The presiding officer, Lt. Col. Paul J. Ware, is the same Marine lawyer who conducted hearings for Justin L. Sharratt and Stephen B. Tatum, two other lance corporals accused of killing a total of five Iraqis in three homes in Haditha.
Colonel Ware later recommended dismissing the charges against those two men, and he has said the killings should be viewed in the context of combat against an enemy that ruthlessly employs civilians as cover. He warned that murder charges against marines could harm the morale of troops still in Iraq.
General Mattis’s statements expressing sympathy for the plight of other enlisted marines whom he cleared of wrongdoing in Haditha may indicate his willingness to see Sergeant Wuterich’s case in a similar light.
Regardless of what happened to charges against the other defendants, there is still great public pressure on the Marine Corps to investigate and punish any wrongdoing in a case in which so many civilians died.
“We can’t say those guys didn’t commit a crime,” said Michael F. Noone Jr., a retired Air Force lawyer and law professor at Catholic University of America. “We can only say that after an investigation, there was not sufficient evidence to prosecute.”
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Listening In
September 8, 2007; Page A12
When the German government announced arrests this week in a terrorist plot against American and German targets inside Germany, one telling detail got little notice: Two of the suspects were identified, in part, based on telephone conversations intercepted by American intelligence.
Let's replay that. U.S. intelligence intercepted cell phone calls made by German nationals in Pakistan. The U.S. passed that information to the German government, which proceeded to roll up a plot to blow up targets that may have included Ramstein Air Base and the Frankfurt airport.
HOT TOPIC
Debate Turns to Telecom ImmunityThis week, by unhappy coincidence, the House Judiciary Committee began hearings on the National Security Agency's al Qaeda wiretapping program. That program was given a six-month reprieve last month. But Democrats in Congress are trying to prevent a further extension, if they can muster the votes to oppose a program that continues to protect American lives, a la this week in Germany.
If they lack the votes, liberals are already working on a Plan B, which is to try to scare U.S. telecommunications companies from cooperating with the NSA. This would be accomplished by denying them immunity from civil lawsuits. Verizon and AT&T are among the companies already sued, and they face billions of dollars in potential liability.
The Protect America Act that passed last month gave the phone companies protection from civil liability for the six-month duration of the law, but it offered no protection for their earlier cooperation in the aftermath of 9/11. The White House requested such retrospective immunity, but it was blocked by Democrats. A cynic might conclude this is one more example of Democrats doing the bidding of their tort lawyer financiers. But let's assume their motives aren't that ugly.
That still leaves Democrats tacitly endorsing a strategy of using lawsuits to gut the wiretapping program. Director of National Intelligence Mike McConnell has said that the potential liabilities are of an order of magnitude sufficient to bankrupt some of our biggest telcos. And even if the suits are ultimately deemed meritless in court, they could well involve sufficient costs to make the companies wary of cooperating in the future. It has already been reported that at least some phone companies are contemplating suing the government to block the enforcement of any wiretapping law that does not immunize them. That's how seriously they take the liability risk.
In this context, this week's debate on Capitol Hill was often out of this world. For example, Florida Democrat Debbie Wasserman-Schultz took the mic to pose a hypothetical. Suppose her child was emailing with a child in Iraq. Wouldn't current law allow the NSA to read those emails? Former Congressman Bob Barr, who was a witness, allowed that this possibility "ought to be a very major concern for certainly all of us."
University of Virginia Professor Robert Turner -- a rare voice of reason during the House hearing -- replied that that "If we say [the NSA] can't look at anything that's got [a] U.S. person involved without a warrant, we're going to give [Osama bin Laden] the easiest way to immunize his whole communication system." In other words, all a terrorist would have to do to mask his communications would be to cc: an American email address, putting it off limits to American surveillance.
Which brings us back to those Germans and their cell phones in Pakistan. Critics of the surveillance program will argue that they have no problem with America eavesdropping on Germans making phone calls to terrorists, so the example is irrelevant to the controversy. But suppose those Germans were calling their fellow-travelers in America, to plot an attack not against Ramstein, but against Fort Bragg. Does anyone really think that phone call would be less important to intercept than those in Germany?
If Democrats want to vote against warrantless wiretaps, they should do so openly and accept the political consequences. What they shouldn't be able to do is hide their opposition behind lawsuits or the judiciary in such a way that guts the program without having to take any responsibility for doing so.
WSJ
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Jose Padilla Makes Bad Law
Terror trials hurt the nation even when they lead to convictions.
BY MICHAEL B. MUKASEY
Monday, September 17, 2007 2:00 p.m. EDT
(Editor's note: This morning President Bush nominated Mr. Mukasey as attorney general. This article appeared in The Wall Street Journal and on this Web site Aug. 22.)
The apparently conventional ending to Jose Padilla's trial last week--conviction on charges of conspiring to commit violence abroad and providing material assistance to a terrorist organization--gives only the coldest of comfort to anyone concerned about how our legal system deals with the threat he and his co-conspirators represent. He will be sentenced--likely to a long if not a life-long term of imprisonment. He will appeal. By the time his appeals run out he will have engaged the attention of three federal district courts, three courts of appeal and on at least one occasion the Supreme Court of the United States.
It may be claimed that Padilla's odyssey is a triumph for due process and the rule of law in wartime. Instead, when it is examined closely, this case shows why current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism.
Padilla's current journey through the legal system began on May 8, 2002, when a federal district court in New York issued, and FBI agents in Chicago executed, a warrant to arrest him when he landed at O'Hare Airport after a trip that started in Pakistan. His prior history included a murder charge in Chicago before his 18th birthday, and a firearms possession offense in Florida shortly after his release on the murder charge.
Padilla then journeyed to Egypt, where, as a convert to Islam, he took the name Abdullah al Muhajir, and traveled to Saudi Arabia, Afghanistan and Pakistan. He eventually came to the attention of Abu Zubaydeh, a lieutenant of Osama bin Laden. The information underlying the warrant issued for Padilla indicated that he had returned to America to explore the possibility of locating radioactive material that could be dispersed with a conventional explosive--a device known as a dirty bomb.
However, Padilla was not detained on a criminal charge. Rather, he was arrested on a material witness warrant, issued under a statute (more than a century old) that authorizes the arrest of someone who has information likely to be of interest to a grand jury investigating a crime, but whose presence to testify cannot be assured. A federal grand jury in New York was then investigating the activities of al Qaeda.
The statute was used frequently after 9/11, when the government tried to investigate numerous leads and people to determine whether follow-on attacks were planned--but found itself without a statute that authorized investigative detention on reasonable suspicion, of the sort available to authorities in Britain and France, among other countries. And so, the U.S. government subpoenaed and arrested on a material witness warrant those like Padilla who seemed likely to have information.
Next the government took one of several courses: it released the person whose detention appeared on a second look to have been a mistake; or obtained the information he was thought to have, and his cooperation, and released him; or placed him before a grand jury with a grant of immunity under a compulsion to testify truthfully and, if he testified falsely, charge him with perjury; or developed independent evidence of criminality sufficiently reliable and admissible to warrant charging him.
Each individual so arrested was brought immediately before a federal judge where he was assigned counsel, had a bail hearing, and was permitted to challenge the basis for his detention, just as a criminal defendant would be.
The material witness statute has its perils. Because the law does not authorize investigative detention, the government had only a limited time in which to let Padilla testify, prosecute him or let him go. As that limited time drew to a close, the government changed course. It withdrew the grand jury subpoena that had triggered his designation as a material witness, designated Padilla instead as an unlawful combatant, and transferred him to military custody.
The reason? Perhaps it was because the initial claim, that Padilla was involved in a dirty bomb plot, could not be proved with evidence admissible in an ordinary criminal trial. Perhaps it was because to try him in open court potentially would compromise sources and methods of intelligence gathering. Or perhaps it was because Padilla's apparent contact with higher-ups in al Qaeda made him more valuable as a potential intelligence source than as a defendant.
The government's quandary here was real. The evidence that brought Padilla to the government's attention may have been compelling, but inadmissible. Hearsay is the most obvious reason why that could be so; or the source may have been such that to disclose it in a criminal trial could harm the government's overall effort.
In fact, terrorism prosecutions in this country have unintentionally provided terrorists with a rich source of intelligence. For example, in the course of prosecuting Omar Abdel Rahman (the so-called "blind sheik") and others for their role in the 1993 World Trade Center bombing and other crimes, the government was compelled--as it is in all cases that charge conspiracy--to turn over a list of unindicted co-conspirators to the defendants.
That list included the name of Osama bin Laden. As was learned later, within 10 days a copy of that list reached bin Laden in Khartoum, letting him know that his connection to that case had been discovered.
Again, during the trial of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, an apparently innocuous bit of testimony in a public courtroom about delivery of a cell phone battery was enough to tip off terrorists still at large that one of their communication links had been compromised. That link, which in fact had been monitored by the government and had provided enormously valuable intelligence, was immediately shut down, and further information lost.
The unlawful combatant designation affixed to Padilla certainly was not unprecedented. In June 1942, German saboteurs landed from submarines off the coasts of Florida and Long Island and were eventually apprehended. Because they were not acting as ordinary soldiers fighting in uniform and carrying arms openly, they were in violation of the laws of war and not entitled to Geneva Conventions protections.
Indeed, at the direction of President Roosevelt they were not only not held as prisoners of war but were tried before a military court in Washington, D.C., convicted, and--except for two who had cooperated--executed, notwithstanding the contention by one of them that he was an American citizen, as is Padilla, and thus entitled to constitutional protections. The Supreme Court dismissed that contention as irrelevant.
In any event, Padilla was transferred to a brig in South Carolina, and the Supreme Court eventually held that he had the right to file a habeas corpus petition. His case wound its way back up the appellate chain, and after the government secured a favorable ruling from the Fourth Circuit, it changed course again.
Now, Padilla was transferred back to the civilian justice system. Although he reportedly confessed to the dirty bomb plot while in military custody, that statement--made without benefit of legal counsel--could not be used. He was instead indicted on other charges in the Florida case that took three months to try and ended with last week's convictions.
The history of Padilla's case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions.
First, consider the overall record. Despite the growing threat from al Qaeda and its affiliates--beginning with the 1993 World Trade Center bombing and continuing through later plots including inter alia the conspiracy to blow up airliners over the Pacific in 1994, the attack on the American barracks at Khobar Towers in 1996, the bombing of U.S. embassies in Kenya and Tanzania in 1998, the bombing of the Cole in Aden in 2000, and the attack on Sept. 11, 2001--criminal prosecutions have yielded about three dozen convictions, and even those have strained the financial and security resources of the federal courts near to the limit.
Second, consider that such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.
And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.
On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.
Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules--in a case it has agreed to hear relating to Guantanamo detainees--that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.
The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantanamo so as to paralyze interrogation of detainees. Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation--a practice, known as rendition, followed during the Clinton administration.
At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.
What is to be done? The Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 appear to address principally the detainees at Guantanamo. In any event, the Supreme Court's recently announced determination to review cases involving the Guantanamo detainees may end up making commissions, which the administration delayed in convening, no longer possible.
There have been several proposals for a new adjudicatory framework, notably by Andrew C. McCarthy and Alykhan Velshi of the Center for Law & Counterterrorism, and by former Deputy Attorney General George J. Terwilliger. Messrs. McCarthy and Velshi have urged the creation of a separate national security court staffed by independent, life-tenured judges to deal with the full gamut of national security issues, from intelligence gathering to prosecution. Mr. Terwilliger's more limited proposals address principally the need to incapacitate dangerous people, by using legal standards akin to those developed to handle civil commitment of the mentally ill.
These proposals deserve careful scrutiny by the public, and particularly by the U.S. Congress. It is Congress that authorized the use of armed force after Sept. 11--and it is Congress that has the constitutional authority to establish additional inferior courts as the need may be, or even to modify the Supreme Court's appellate jurisdiction.
Perhaps the world's greatest deliberative body (the Senate) and the people's house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results.
Mr. Mukasey was the district judge who signed the material witness warrant authorizing Jose Padilla's arrest in 2002, and who handled the case while it remained in the Southern District of New York. He was also the trial judge in United States v. Abdel Rahman et al. Retired from the bench, he is now a partner at Patterson Belknap Webb & Tyler in New York.
WSJ
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The WSJ has it exactly right. The legal system isn't designed to fight this war.
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Another previous article by Mukasey from this morning's WSJ:
The Spirit of Liberty'
Before attacking the Patriot Act, try reading it.
BY MICHAEL B. MUKASEY
Monday, September 17, 2007 2:00 p.m. EDT
(Editor's note: This morning President Bush nominated Judge Mukasey as attorney general. This article appeared in The Wall Street Journal and on this Web site May 10, 2004.)
Learned Hand, among the last century's greatest judges, defined the spirit of liberty 60 years ago as "the spirit which is not too sure that it is right." We must consider what message we can take from those words today.
We are now in a struggle with an extremism that expresses itself in the form of terror attacks, and in that we face what is probably the gravest threat to this country's institutions, if not to its physical welfare, since the Civil War. When one tries to assess people who can find it in themselves to fly airplanes into buildings and murder 3,000 of us in a single morning, whatever else you can say about such people, they are very sure that they are right; and wouldn't it be music to their ears to hear that our spirit says we're not too sure that we are right?
What measures we should take to protect ourselves, both abroad and at home, is now the subject of heated debate as we participate in a war against extremism, not so much to make the world safe for democracy as to achieve a more modest-sounding but, I would suggest, no less important goal--to make the world safe for us. Regrettably, like many debates, our current one already has seen its share of half-truths and outright falsehoods.
They began right after Sept. 11, when some claimed that FBI agents were rounding up Muslim Arabs wholesale and holding them incommunicado. That accusation seems dubious on its face when you consider that the FBI has only about 12,000 agents world-wide. That is not many when you realize that they investigate not only terrorism, but also every other federal crime aside from counterfeiting, tax evasion and mail fraud; that they share responsibility for drug investigations with the Drug Enforcement Administration--a pretty hefty set of assignments--and that they had numerous leads as to those responsible for the attack on Sept. 11. Under those circumstances--with many leads to work on and relatively few agents to do that work--does it really stand to reason that they spent their time rounding people up based on nothing other than religion and ethnicity?
No doubt there were people taken into custody, whether on immigration warrants or material witness warrants, who in retrospect should not have been. If those people have grievances redressable under the law, those grievances can be redressed. But we should keep in mind that any investigation conducted by fallible human beings in the aftermath of an attack is bound to be either overinclusive or underinclusive. There are consequences both ways. The consequences of overinclusiveness include condemnations. The consequences of underinclusiveness include condolences.
More recently, a statute called the USA Patriot Act has become the focus of a good deal of hysteria, some of it reflexive, much of it recreational.
My favorite example is the well-publicized resolution of the American Library Association condemning what the librarians claim to believe is a section of the statute that authorizes the FBI to obtain library records and to investigate people based on the books they take out. Some of the membership have announced a policy of destroying records so that they do not fall into the hands of the FBI.
First a word on the organization that gives us this news. The motto of this organization is "Free people read freely." When it was called to their attention that there are 10 librarians languishing in Cuban prisons for encouraging their fellow countrymen to read freely, an imprisonment that has been condemned by Lech Walesa and Vaclav Havel, among others, this association declined to vote any resolution of condemnation, although they did find time at their convention to condemn their own government.
In addition to the library association, many towns and villages across the country, notably Berkeley, Calif., and Amherst, Mass., have announced that they will not cooperate with any effort to gather evidence under the statute. A former vice president has called for the statute's repeal, and a former presidential candidate has called the act "morally wrong," "shameful" and "unconstitutional."
I think one would have to concede that the USA Patriot Act has an awkward, even Orwellian, name, which is one of those Washington acronyms derived by calling the law "Uniting and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism." You get the impression they started with the acronym first, and then offered a $50 savings bond to whoever could come up with a name to fit. Without offering my view on any case or controversy, current or future, I think that that awkward name may very well be the worst thing about the statute.
Most of the provisions have nothing to do with the current debate, including provisions authorizing purchase of equipment for police departments and the like, and provisions tightening restrictions on money laundering, including restrictions on the export of currency, which is the lifeblood of terrorists. Recall that when Saddam Hussein was captured, he had with him $750,000 in $100 bills.
The statute also breaks down the wall that has separated intelligence gathering from criminal investigation. It allows intelligence information to be shared with criminal investigators, and information that criminal investigators unearth to be shared with those conducting intelligence investigations. I think many people would believe this makes sense, although a series of bureaucratic decisions and a stark misreading of the Foreign Intelligence Surveillance Act for years made this impossible, and thus prevented the government from fulfilling its most basic responsibility under the Constitution: "to provide for the common defense [and] promote the general Welfare."
What difference would this make? Well, there is one documented incident involving an FBI intelligence agent on the West Coast who was trying to find two men on a watch list who he realized had entered the country. He tried to get help from the criminal investigative side of the FBI, but headquarters intervened and said that was not allowed. That happened in August 2001. The two men he was looking for were named Khalid al-Midhar and Nawaf al-Hazmi. A few weeks later, on Sept. 11, they were at the controls of the airplane that struck the Pentagon. This provision of the statute, permitting information sharing, could not pass Congress without an agreement that it would sunset on Dec. 31, 2005, and so unless that provision is changed, come Jan. 1, 2006, we will be back to the rules that prevailed in August 2001.
The provisions in the law that have generated the most opposition have to do with investigative techniques, including electronic surveillance and the gathering of business records. The electronic surveillance provisions give investigators access to cable-based communications, such as e-mail, on the same basis as they have long had access to telephone communications, and give them access to telephone communications in national security cases on the same basis on which they already have such access in drug cases.
I think most people would have been surprised and somewhat dismayed to learn that before the Patriot Act was passed, an FBI agent could apply to a court for a roving wiretap if a drug dealer switched cell phones, as they often do, but not if an identified agent of a foreign terrorist organization did; and could apply for a wiretap to investigate illegal sports betting, but not to investigate a potentially catastrophic computer hacking attack, the killing of U.S. nationals abroad, or the giving of material support to a terrorist organization. Violations like those simply were not on the list of offenses for which wiretaps could be authorized.
The statute also codifies the procedure for issuing and executing what are called "sneak and peek" warrants that allow agents, with court authorization, to enter premises, examine what is there and then leave. These warrants had been issued by courts before the Patriot Act was passed, including my own court--although I have never issued one myself--on the fairly simple logic that if it is reasonable under the Fourth Amendment to enter premises and seize things, it should also be reasonable to enter premises and not seize things. The statute permits agents to delay disclosure of their presence to the person who controls the premises, again with court authorization. Here too, the logic seems obvious: If you leave behind a note saying "Good afternoon, Mr. bin Laden, we were here," that might betray the existence of an investigation and cause the subjects to flee or destroy evidence. There are analogous provisions that were in existence long before the Patriot Act permitting a delay in notifying people who are overheard on wiretaps, and for the same reason.
What about the section the librarians were so concerned about, Section 215? Well, it bears some mention that the word library appears nowhere in that section. What the section does authorize is the issuance of subpoenas for tangible things, including business records, but only upon approval by the Foreign Intelligence Surveillance Court. Such a subpoena can direct everyone, including the record keeper, not to disclose the subpoena to anyone, including to the person whose records were obtained. That section also specifically forbids investigation of a citizen or a lawful alien solely on the basis of activity protected by the First Amendment. It requires that the Justice Department report to Congress every six months on subpoenas issued under it. At last report, there have been no such subpoenas issued to libraries. Indeed, there have been no such subpoenas, period.
Let me hasten to add that it is not impossible to imagine how library records might prove highly relevant, as they did in one case, very much pre-9/11--the case of the "Unabomber," Ted Kaczynski. Some of you may recall that Kaczynski was apprehended soon after a newspaper agreed to publish his manifesto, and was caught based principally on a tip from his brother, who read the manifesto, and recognized the rhetoric. But one of the ways that tip was proved accurate was through examination of library records, which disclosed that the three arcane books cited in the manifesto had been checked out to Ted Kaczynski from a local library--a devastating bit of corroborative circumstantial evidence.
Like any other act of Congress, the Patriot Act should be scrutinized, criticized and, if necessary, amended. But in order to scrutinize and criticize it, it helps to read what is actually in it. It helps not to conduct the debate in terms that suggest it gives the government the power to investigate us based on what we read, or that people who work for the government actually have the inclination to do such a thing, not to mention the spare time.
As we participate in this debate on what is the right course to pursue, I think it is important to remember an interesting structural feature of the Constitution we all revere. When we speak of constitutional rights, we generally speak of rights that appear not in the original Constitution itself, but rather in amendments to the Constitution--principally the first 10. Those amendments are a noble work, but it is the rest of the Constitution--the boring part--the part that sets up a bicameral legislature and separation of powers, and so on, the part you will never see mentioned in any flyer or hear at any rally, that guarantees that the rights referred to in those 10 amendments are worth something more than the paper they are written on.
A bill of rights was omitted from the original Constitution over the objections of Patrick Henry and others. It may well be that those who drafted the original Constitution understood that if you give equal prominence to the provisions creating the government and the provisions guaranteeing rights against the government--God-given rights, no less, according to the Declaration of Independence--then citizens will feel that much less inclined to sacrifice in behalf of their government, and that much more inclined simply to go where their rights and their interests seem to take them.
So, as the historian Walter Berns has argued, the built-in message--the hidden message in the structure of the Constitution--is that the government it establishes is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt. If we keep that in mind, then the spirit of liberty will be the spirit which, if it is not too sure that it is right, is at least sure enough to keep itself--and us--alive.
Mr. Mukasey is chief judge of the U.S. District Court, Southern District of New York. This is adapted from a speech he gave last Wednesday, on his acceptance of the Learned Hand Medal for Excellence in Federal Jurisprudence.
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http://www.latimes.com/features/books/la-et-rutten19sep19,0,334744.story?coll=la-home-middleright
DAILY BOOK REVIEW
'The Terror Presidency' by Jack Goldsmith
A one-time insider details the Bush administration's legal deliberations on terrorists and presidential power.
By Tim Rutten
Los Angeles Times Staff Writer
September 19, 2007
On the long shelf of books written from inside President George W. Bush's administration, none is more fundamentally significant, nor as challenging to the preconceptions of left and right, as Jack Goldsmith's "The Terror Presidency: Law and Judgment Inside the Bush Administration."
Goldsmith, now a law professor at Harvard University, is one of those rare legal scholars who write with unforced clarity. He is also a committed philosophical conservative in the American tradition, deferential to precedent and custom, reverential toward democratic institutions as expressed in the Constitution and deeply learned in the history of presidential power exercised in the face of wartime exigencies.
That such a man could survive only eight months inside the Bush administration is the most severe indictment of this government's conduct yet leveled.
Goldsmith, then on leave from the University of Chicago law school, was serving as legal advisor to the Defense Department in October 2003 when he was asked to head the Justice Department's Office of Legal Counsel, which advises the White House on the legality of the president's proposed actions. Goldsmith was a surprise choice for the post, and his name surfaced only after conservative legal scholar John Yoo's nomination was vetoed by then-Atty. Gen. John Ashcroft, who distrusted Yoo as too close to the White House and, particularly, to Vice President Dick Cheney's staff.
At the time of his own nomination, the administration's inner circle knew little of Goldsmith beyond that he was a conservative -- often linked mistakenly in scholarly publications with his then-friend Yoo.
There were, however, significant differences in their legal analysis of presidential wartime powers, an issue that preoccupies this administration. Yoo believes the chief executive's wartime powers derive from a so-called "unitary theory" of executive powers and are inherent in the office. There are no serious scholars of the Founders and their era who share Yoo's views on this issue.
Goldsmith, by contrast, has long been concerned -- from a conservative perspective -- with the potential infringements of international agreements on American popular sovereignty. He also has read and reflected deeply on the wartime presidencies of Abraham Lincoln and Franklin D. Roosevelt. While readers may differ from the conclusions he draws concerning those presidents and their wartime conduct, his arguments are clear, formidable and authoritative.
All of this quickly made Goldsmith anathema inside the Bush White House. By the time he resigned as head of the Office of Legal Counsel, he had withdrawn more legal opinions rendered by his predecessors than all previous counsels combined. Among those were Yoo's now-infamous memos justifying the use of torture to interrogate suspected terrorists. As Goldsmith writes, he came to believe those opinions rested on legal foundations "sloppily reasoned, overboard, and incautious in asserting extraordinary constitutional authorities on behalf of the president."
One of several crucial areas illuminated by this book is the role the Bush administration and, particularly, Cheney have found for a relatively small cadre of zealots, who have acted as enablers for an unprecedented expansion of presidential powers that has been characterized as conservative but is in fact authoritarian. Yoo, of course, is one of these, and so too is Cheney's former legal counsel, now chief of staff, David Addington.
When Goldsmith went to the White House to deliver his first opinion as head of the Office of Legal Counsel, he argued that the Fourth Geneva Convention, which governs the conduct of occupying powers, did in fact cover the U.S. treatment of Iraqi insurgents. Addington exploded, "The president has already decided that terrorists do not receive Geneva Convention protections. You cannot question his decision."
On another occasion, in spring 2004, Goldsmith was asked to evaluate an "important counterterrorism initiative." When he told the White House that "the Justice Department could not support the initiative's legality," Addington reacted "in disgust," snapping, "If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands."
Still, in his entirely measured way, Goldsmith muses that "Addington was. . . not on entirely thin ice in thinking that President Bush, like Franklin Roosevelt and Abraham Lincoln, had the power under the Constitution to do what was necessary to save the country in an emergency. But Addington took this idea further than Roosevelt and Lincoln" in his categorical assertion that Congress never need be consulted by the executive:
"Lincoln claimed and exercised similar emergency powers, but he too was sensitive to Congress' prerogatives and constitutional propriety. He invoked the emergency power to exercise powers reserved for Congress. But he did so only until Congress could meet in session and, at Lincoln's invitation, either ratify or reject his actions.
"Addington had no such instincts. To the contrary, long before 9/11 he and his boss had set out to reverse what they saw as Congress' illegitimate decades-long intrusions on 'unitary' executive power. . . . This underlying commitment to expanding presidential power distinguishes the Bush Administration from the Lincoln and Roosevelt administrations. . . . Vice President Cheney and David Addington -- and through their influence, President Bush and Alberto Gonzales --. . . shared a commitment to expanding presidential power that they had long been anxious to implement."
Goldsmith concludes that Bush's "accomplishments will likely always be dimmed by our knowledge of his administration's strange and unattractive views of presidential power. The American people know better today than during the Civil War and World War II that Lincoln and Roosevelt, in [Arthur] Schlesinger's words, regarded 'executive aggrandizement as but a means to a great end, the survival of liberty and law, of government by, for, and of the people,' and that 'they used emergency power, on the whole, with discrimination and restraint. . . .' We are unlikely to come to think of President Bush in this way, for he has not embraced Lincoln's and Roosevelt's tenets of democratic leadership in crisis."
The rhetorical impulse is to end on that quote, congenial as it is to the reviewer's own opinions on the matter. Goldsmith's entire approach to these vital questions, however, is a rebuke to the narrowly ideological or merely rhetorical impulse and all the props of zealotry that have become central to our politics.
"The Terror Presidency" is an important book -- and a genuine service to the national interest -- on several levels, none more pressing than its implicit demand for a sober consideration of the current historical moment in all its complexity. As Goldsmith said in a recent interview:
"Usually the restrictions on liberties during wartime are temporary. The fight against al Qaeda and its affiliates may last a long time. As a country we need to figure out a way to give the presidency the extraordinary authorities it needs to keep us safe, while at the same time minimizing unnecessary intrusion on our liberties. That is, of course, easier said than done."
timothy.rutten@latimes.com
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Nothing President Bush has done begins to compare with what Lincoln or FDR did to preserve the US at times of war.
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The difference I see between W and Lincoln/Roosevelt is here:
The American people know better today than during the Civil War and World War II that Lincoln and Roosevelt, in [Arthur] Schlesinger's words, regarded 'executive aggrandizement as but a means to a great end, the survival of liberty and law, of government by, for, and of the people,' and that 'they used emergency power, on the whole, with discrimination and restraint. . . .' We are unlikely to come to think of President Bush in this way, for he has not embraced Lincoln's and Roosevelt's tenets of democratic leadership in crisis."
Would you honestly characterize Bush's exercise of emergency war powers as "with discrimination and restraint"?
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Bush has done less than he should have, not more. Militarizing the borders should have started 9/12/2001. Aviation security still essentially sucks, despite the billions of dollars spent, due to political correctness.
Liberal icon FDR had Americans of Japanese ancestry rounded up into camps for the duration of the war. Give me something done by this president that even begins to approach that.
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Woof GM,
I certainly won't defend FDR's internment of Japanese Americans, but how do you suppose you would have felt about it had you been around back then? Are you saying you would've opposed it? Or would you have been one of the people accusing it's opponents of risking our security for "political correctness" (or whatever term they would have used back then)? It's likely that our previous experience with internment is the only reason Bush hasn't ordered something like it today.
There are a few things Bush has done that are pretty well beyond what any other wartime president has ordered, but above all I would argue that establishing secret (and not-so-secret) prisons outside the jurisdiction of US laws solely for the purpose of torturing "suspects" (who have no means of challenging their detention or even letting anybody know they're there) is worse than our internment of Japanese Americans.
Rog
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I had a conversation with a friend in the days after 9/11, we both agreed how we now understood how the internment of American citizens happened in WWII. Funny enough, J. Edgar Hoover was a strong opponent of the internment, but FDR overruled him.
The Clinton administration started the policy of "rendition". http://www.fas.org/irp/offdocs/pdd39.htm http://www.fas.org/irp/offdocs/pdd-62.htm
I quote that right wing group, the ACLU:
URL: http://www.aclu.org/safefree/extraordinaryrendition/22203res20051206.html
Beginning in the early 1990s and continuing to this day, the Central Intelligence Agency, together with other U.S. government agencies, has utilized an intelligence-gathering program involving the transfer of foreign nationals suspected of involvement in terrorism to detention and interrogation in countries where -- in the CIA's view -- federal and international legal safeguards do not apply. Suspects are detained and interrogated either by U.S. personnel at U.S.-run detention facilities outside U.S. sovereign territory or, alternatively, are handed over to the custody of foreign agents for interrogation. In both instances, interrogation methods are employed that do not comport with federal and internationally recognized standards. This program is commonly known as "extraordinary rendition."
The current policy traces its roots to the administration of former President Bill Clinton. Following the attacks of September 11, 2001, however, what had been a limited program expanded dramatically, with some experts estimating that 150 foreign nationals have been victims of rendition in the last few years alone. Foreign nationals suspected of terrorism have been transported to detention and interrogation facilities in Jordan, Iraq, Egypt, Diego Garcia, Afghanistan, Guantánamo, and elsewhere. In the words of former CIA agent Robert Baer: "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear -- never to see them again -- you send them to Egypt."
Administration officials, backed by Department of Justice legal memoranda, have consistently advanced the position that foreign nationals held at such facilities, outside U.S. sovereign territory, are unprotected by federal or international laws. Thus, the rendition program has allowed agents of the United States to detain foreign nationals without any legal process and, primarily through counterparts in foreign intelligence agencies, to employ brutal interrogation methods that would be impermissible under federal or international law, as a means of obtaining information from suspects.
The Department of Justice's arguments notwithstanding, the extraordinary rendition program is illegal. It is clearly prohibited by the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment, ratified by the United States in 1992, and by congressionally enacted policy giving effect to CAT. As Congress made clear, it is the policy of the United States not to:
expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.
Foreign Affairs Reform and Restructuring Act of 1998, ("FARRA"), Pub. L. No. 105-277, § 2242, 112 Stat. 2681 (Oct. 21, 1998), reprinted in 8 U.S.C. § 1231, Historical and Statutory Notes (1999) (emphasis added).
Congress has recently reaffirmed this policy, providing in an amendment to the Emergency Supplemental Appropriations Act for the Iraq War and Tsunami Relief, 2005 (P.L. 109-13) that it will not authorize the funding of any program that "subject any person in the custody or under the physical control of the United States to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States." P.L. 109-13, § 1031 (2005). The President, too, has confirmed that it is the policy and practice of the United States neither to use torture nor to hand over detainees to countries that use torture. See www.whitehouse.gov/news/releases/2005/04/20050428-9.html.
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GM:
That point about rendition beginning under Clinton is very interesting. I didn't know that.
Marc
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Big Terror Trial Shaped Views of Justice Pick
By ADAM LIPTAK
Published: September 20, 2007
On Jan. 17, 1996, after a nine-month terrorism trial and a rambling 100-minute lecture from a blind sheik found guilty of conspiring to wage war against the United States, Judge Michael B. Mukasey had had enough.
With a few terse, stern and prescient remarks, he sentenced the sheik, Omar Abdel Rahman, to life in prison. Judge Mukasey said he feared the plot could have produced devastation on “a scale unknown in this country since the Civil War” that would make the 1993 bombing of the World Trade Center, which had left six people dead, “almost insignificant by comparison.”
Long before most Americans had given deep consideration to the terrorist threat from radical Islam or to whether the criminal justice system is the right forum for trying people accused of terrorism, Judge Mukasey received an intensive education on those topics.
The vivid lessons Judge Mukasey took away from the trial — notably that the urgency of the threat requires tilting toward protecting national security even at some cost to civil liberties — have echoed through his speeches and writings. Now, as President Bush’s choice for attorney general, he is poised to put those lessons into practice.
Mr. Abdel Rahman and nine other men were convicted of plotting a “day of terror” that would have included blowing up the United Nations Building, the George Washington Bridge and the Lincoln and Holland Tunnels.
The trial, which remains the longest and most complex international terrorism case ever presented in a United States court, involved almost the entire array of national security issues that Judge Mukasey would face if confirmed as the Bush administration’s third attorney general. Those issues include the proper balance between security and liberty, between intelligence gathering and criminal prosecution, and between government secrecy and accountability.
In his writings, Judge Mukasey has made clear that, although the issues are difficult ones, he is inclined to favor security, intelligence and secrecy over the competing values.
Rules applicable in ordinary criminal cases, Judge Mukasey wrote last month in The Wall Street Journal, “do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.”
Although Judge Mukasey’s handling of the trial received praise from the appeals court and from some — but hardly all — of the lawyers involved, his writings and public remarks show that the case left him shaken and deeply skeptical about the ability of civilian courts to try people accused of terrorism without compromising national security.
Mary Jo White, the United States attorney in Manhattan at the time, said the trial was a master class for all concerned.
“I’m certain that his views were influenced by what he learned in that trial, both substantively and procedurally,” Ms. White said, referring to the detailed information presented about the nation’s enemies and the difficulty of addressing the threat in a criminal prosecution.
Ronald L. Kuby, a defense lawyer in the case, said he did not know if the trial shaped Judge Mukasey’s thinking. But he said it certainly illuminated the judge’s approach.
“He was violating the rights of Arabs before it was popular,” Mr. Kuby said. “It was very much like trying a case with two prosecutors, one of whom was wearing a black robe and who was considerably more intelligent than the one hired for the job.”
Judge Mukasey removed Mr. Kuby from the case over what the judge said were conflicts of interest. Other defense lawyers generally praised Judge Mukasey’s handling of the case.
“He ran the tightest ship you ever saw,” said Roger L. Stavis, another defense lawyer. “He’s a very kind, generous man, but also a tough law-and-order guy.”
But Mr. Stavis also wondered about whether a conventional trial was capable of addressing the charges in the case. “It doesn’t fit,” he said. “You cannot get at the problem in a discrete trial in an American courtroom.”
The case was unusual from the start. It relied, for instance, on a Civil War-era seditious conspiracy statute that made it a crime to plot to levy war on the United States.
“The tools we had to charge terrorism were appallingly bad,” said Andrew C. McCarthy, the lead prosecutor. Partly by happenstance, then, the case brought the metaphor of terrorism as a war into an American courtroom.
Judge Mukasey was concerned throughout about balancing the defendants’ rights against national security. He ordered an array of potential evidence to be disclosed to the defense, for instance, but drew the line at information he said would needlessly compromise intelligence operations.
In his Wall Street Journal article, he wrote that terrorism prosecutions “risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized.”
The risk, he wrote, is not theoretical. A list of unindicted co-conspirators provided to the defense in the 1995 trial, including Osama bin Laden, reached Mr. bin Laden in Khartoum, Sudan, within 10 days, Judge Mukasey wrote, “letting him know that his connection to that case had been discovered.”
Judge Mukasey has complained bitterly about the porous nature of criminal proceedings in other settings, too.
When Mr. Kuby, the defense lawyer, applied for a security clearance for a later trial, Judge Mukasey met with a Federal Bureau of Investigation agent to argue against the idea, saying he was convinced that Mr. Kuby had leaked sealed documents to Newsday and The New York Times.
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(Page 2 of 2)
“Mukasey stated that he could not imagine anyone who would be less trustworthy with sensitive information than Kuby,” a special agent’s summary of the interview said. Mr. Kuby, who did not receive the clearance and denied leaking the documents, obtained the summary through a freedom of information request.
Mr. McCarthy, the prosecutor, said the problem of unauthorized disclosures was widespread and pernicious. “The F.B.I. was leaking, too,” he said.
In remarks at the Brooklyn Law School in 2000, Judge Mukasey was also critical of the news organizations for contacting former jurors after the nine-month trial. For the jurors’ security, Judge Mukasey had allowed them to serve anonymously. “The court tries at all costs to keep that information secret,” he said.
The case also gave Judge Mukasey early exposure to the Foreign Intelligence Surveillance Act, a 1978 law that required warrants from a secret court to monitor international communications involving people in the United States.
The 1995 trial involved surveillance of four defendants based on six warrants from the secret court. Judge Mukasey ordered that the surveillance tapes be disclosed, though he denied a defense request for documents related to the warrant applications.
“Disclosure of the conversations,” the judge reasoned in a 1994 decision, “does not disclose the strategies, capabilities and techniques of those who gather information.”
As if anticipating a debate that would arise after 9/11, he added that it should be perfectly permissible to use foreign intelligence information in criminal investigations and prosecutions. “There is no contradiction, indeed there is probably often a congruence, between foreign intelligence information and evidence of criminal wrongdoing,” Judge Mukasey wrote in 1994.
His understanding of the law, at least in 2000, was imperfect. “If warrants are granted,” he said, according to a transcript of his remarks published in The Journal of Law & Policy, “an appeal can be taken to an ad hoc court.”
But F.I.S.A. litigation is a one-sided affair. When applications are granted, the government has won and would have no reason to appeal. The proceedings are kept secret from the subjects of surveillance, who do not participate and have no way to appeal. Indeed, the F.I.S.A. appeals court said in 2002 that it was hearing its first appeal — filed by the government, after a government loss. It is not known to have heard any appeals since.
Mr. McCarthy, the lead prosecutor in the 1995 trial, said the lawyers, the jury and the judge had all emerged from it transformed.
Going in, he said, “there was a great impulse, certainly in the Justice Department but also in the courts, that we had best show to the world that we can take our own worst enemies and give them due process.”
That view, Mr. McCarthy said, has turned out to be naïve, and he has proposed the creation of a new national security court to address the problem. In his Wall Street Journal article last month, Judge Mukasey said Mr. McCarthy’s proposal and similar ones “deserve careful scrutiny.”
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Senate bars bill to restore detainee rights
Wed Sep 19, 2007 5:43pm EDT
By Susan Cornwell
WASHINGTON (Reuters) - The Senate voted on Wednesday against considering a measure to give Guantanamo detainees and other foreigners the right to challenge their detention in the U.S. courts.
The legislation needed 60 votes to be considered by lawmakers in the Senate, narrowly controlled by Democrats; it received only 56, with 43 voting against the effort to roll back a key element of President George W. Bush's war on terrorism.
The measure would have granted foreign terrorism suspects the right of habeas corpus, Latin for "you have the body," which prevents the government from locking people up without review by a court.
Congress last year eliminated this right for non-U.S. citizens labeled "enemy combatants" by the government. The Bush administration said this was necessary to prevent them from being set free and attacking Americans.
The move affected about 340 suspected al Qaeda and Taliban captives held at the Guantanamo Bay naval base in Cuba. It also affects millions of permanent legal residents of the United States who are not U.S. citizens, said one of the sponsors of the bipartisan measure, Democratic Sen. Patrick Leahy of Vermont.
"Any of these people could be detained forever without the ability to challenge their detention in federal court" under the changes in law Congress made last year, Leahy said on the Senate floor. This was true "even if they (authorities) made a mistake and picked up the wrong person."
"This was a mistake the last Congress and the (Bush) administration made, based on fear," Leahy said.
But Sen. Lindsey Graham, a South Carolina Republican opposing the measure, said lawmakers should not allow "some of the most brutal vicious people in the world to bring lawsuits against their own (U.S.) troops" who had picked up the detainees on the battlefield.
Giving habeas corpus to Guantanamo detainees would "really intrude into the military's ability to manage this war," Graham said, adding that it was "something that has never been granted to any other prisoner in any other war."
"Our judges don't have the military background to make decisions as to who the enemy is," Graham told the Senate.
Congress eliminated habeas rights as part of the Military Commissions Act, which also created new military tribunals to try the Guantanamo prisoners on war crimes charges.
Congress was led by Republicans when the act was rushed through, shortly before new elections put Democrats in control.
Sen. Arlen Specter, another sponsor of the bill and a Pennsylvania Republican, noted that the right to habeas corpus was a protection against arbitrary arrest enshrined in the U.S. Constitution and dating back to the English Magna Carta of 1215.
Later this year, the U.S. Supreme Court is expected to hear arguments from lawyers from Guantanamo prisoners challenging the law to eliminate the habeas right.
I've always been a bit nervous about suspending habeas corpus as it might lead to questionable practices in the future regardless of who the detainee is. Crafty, as a lawyer, do you have a opinion re: habeas in this situation?
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Who here thinks the founding fathers would have wanted jihadists to enjoy constitutional protections? "Lawfare" will be the death of us.
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Who here thinks the founding fathers would be OK with blacks not being slaves? ;)
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Quite a few, actually. The conflict over slavery almost scuttled the formation of the US. It was left unresolved in the interest of dealing with the primary issue of gaining independance from Britain.
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Who here thinks the founding fathers would have wanted jihadists to enjoy constitutional protections? "Lawfare" will be the death of us.
Sen. Arlen Specter...noted that the right to habeas corpus was a protection against arbitrary arrest enshrined in the U.S. Constitution and dating back to the English Magna Carta of 1215.
Is this a "few broken eggs" argument? Maybe we mess up a couple of times but at least we are safe the majority of the time?
My biggest beef is that habeas is suspended based on who the government decides is the bad guy. I'm not saying let the bad guys go, I'd just like to see some accountability. We seem to be holding a ton of individuals and not garnering a whole lot of convictions.
What safeguards prevent application of "non-habeas" to our own population?
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Why Civilian Trials for Terrorists are a Bad Idea
By John Perazzo
FrontPageMagazine.com | February 6, 2007
On November 13, 2001 — two months after 9/11 — President Bush signed an Executive Order authorizing the U.S. government to try accused terrorists in military tribunals (a.k.a. military commissions) rather than in civilian courts. The president’s decision was swiftly and widely condemned by the political Left, which accused him of trampling on the civil rights and liberties of defendants who, the critics said, should be entitled to all the rights and protections afforded by the American criminal court system — where the standards that govern the admissibility of evidence are considerably stricter than the counterpart standards in military tribunals. The indicted al-Qaeda operative and U.S. citizen Jose Padilla — who was initially accused of plotting to detonate a radioactive bomb and to blow up multiple high-rise apartment buildings in an American city — became a cause celebre for the anti-tribunal chorus.
Then in June 2006 the Supreme Court ruled, with a five-Justice majority, that President Bush’s military tribunals were not authorized by federal law. This did not mean that tribunal rules were flawed or unconstitutional in any way, but only that those rules needed to be formally voted into law — or formally rejected — by Congress. In response to this decision, five months later Congress passed the Military Commissions Act of 2006, formally authorizing the adjudication of war crimes and terrorism cases in military courts. The House of Representatives vote was 253 to 168 (Republicans voted 219 to 7 in favor, Democrats 160 to 34 against); the overall Senate margin was 65 to 34 in favor.
According to the Defense Department, military tribunals, where military officers serve as the judges and jurors, are designed to deal with offenses committed in the context of warfare — including pillaging; terrorism; wilfully killing or attacking civilians; taking hostages; employing poison or analogous weapons; using civilians as human shields; torture; mutilation or maiming; improperly using a flag of surrender; desecrating or abusing a dead body; rape; hijacking or hazarding a vessel or aircraft; aiding the enemy; spying; providing false testimony or perjury; soliciting others to commit offenses that are triable by military jurisprudence; and intending or conspiring to commit, or to aid in the commission of, such crimes.
The issue of whether it is appropriate to try someone accused of the aforementioned transgressions in a military court depends upon how one answers a single overriding question: Is terrorism a matter of war, or is it a legal issue where redress should be pursued via the criminal-justice system — like robbery, vandalism, or murder? To answer this question, it is useful to have an operational definition for the term “terrorism.” The FBI places terrorism in a category clearly distinct from the crimes traditionally handled by civilian courts, defining it as the “unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”
By sending American troops into Afghanistan to overthrow that nation’s al-Qaeda-sponsoring Taliban regime, President Bush signaled clearly that he considered the atrocities of 9/11 to be acts of war that merited a military response; that is, he did not view the hijackings as mere violations of criminal codes by a band of 19 outlaws, but as acts of terrorism. It would not be enough, he decided, to merely track down whoever may have personally conspired with the hijackers and try them in federal court. Fifteen years earlier, President Reagan had responded similarly to the deadly bombing of a Berlin discotheque frequented by American soldiers. Once U.S. intelligence authorities had gathered convincing evidence that Mu'ammar al-Qadhafi’s Libyan government had sponsored the attack, Reagan deemed it an act of war and, rather than standing pat until redress could be achieved in a court of law, he ordered carrier-based warplanes to strike targets in Tripoli.
The Left largely rejects the notion that the current War on Terror is a legitimate, or even an actual, war — characterizing it instead as a contrived pretext for American imperialism (and oil-grabbing) abroad, and for the erosion of civil liberties domestically. Attorneys Spencer J. Crona and Neal A. Richardson suggest that many Americans have accepted this perspective because metaphorical references to “war” abound in contemporary vernacular — references to such endeavors as the “war on poverty,” the “war on drugs,” the “war on AIDS,” and the “war on hunger.” As a result, say Crona and Richardson, people may be inclined to view the war on terror as yet another social-justice or law-enforcement undertaking that, while it might warrant some financing, certainly does not merit military action.
In addition, a significant proportion of Americans fail utterly to understand the nature of the enemy that has declared war on them. As the late Ayatollah Khomeini (a Shi’ite) of Iran announced in the wake of the 1979 hostage-taking at the U.S. Embassy in Tehran, “We are at war with infidels…I ask all Islamic nations…to join the holy war.” Today Osama bin Laden (a Sunni) preaches a similar doctrine of death. In 1996 he issued his Declaration of War Against the Americans Occupying the Land of the Two Holy Places, and two years later he set forth a Declaration of Jihad Against Jews and Crusaders. Whatever hatreds the Shi’ites and Sunnis feel toward one another, they are united by their shared commitment to wage war on America. Yet leftists choose to pretend that a state of war did not exist until President Bush deployed U.S. troops to Afghanistan and Iraq. Khomeini himself viewed such self-deceivers with the greatest contempt when he sneered: “Those who know nothing of Islam pretend that Islam counsels against war. Those who say this are witless. Islam says: Kill all the unbelievers just as they would kill you all! Kill them, put them to the sword and scatter their armies.”
But opponents of military tribunals argue that even if radical Islamists have in fact declared war on America, the U.S. Congress, which has sole authority to make formal declarations of war, has not done so in this case — and that the use of such tribunals is therefore logically unjustifiable. There is in fact considerable precedent, however, for trying accused war criminals in military courts even in the absence of a Congressional declaration of war: President Abraham Lincoln used military commissions extensively to sentence Confederate terrorists for such crimes as seizure, arson, and the destruction of transportation, communication or other systems of infrastructure during the American Civil War.
In all of American history, Congress has made formal declarations of war only five times: the War of 1812, the Mexican War, the Spanish-American War, World War I, and World War II. But as Henry Mark Holzer points out, presidents acting in their capacity as commanders-in-chief have sent troops into battle at least 130 times in the absence of such declarations. Sometimes those military conflicts, while not formally declared wars, were explicitly authorized by Congress. Among these were the Vietnam War (authorized by a vote of 88-2 in the Senate, and 418-0 in the House); the 1991 Persian Gulf War (52-47 in the Senate, 250-183 in the House); the 2001 invasion of Afghanistan (98-0 in the Senate, 420-1 in the House); and the 2003 invasion of Iraq (77-23 in the Senate, 296-133 in the House).
In other cases the U.S. has engaged in combat against a particular form of enemy aggression, even though our country was not officially at war with the nation from which the aggressors hailed. A good example of this was the 1801 Talbot v. Seeman Supreme Court case, which involved French privateers who were preying on American commercial shipping. In its decision, the Court affirmed Congress’s right to declare a “partial war” against the transgressors. Chief Justice John Marshall wrote at the time: “The whole powers of war being, by the Constitution of the United States, vested in Congress…Congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial war, in which case the laws of war, so far as they actually apply to our situation, must be noticed.” The parallel with the current war on terror, where intelligence and military forces seek to combat saboteurs and killers from a number of nations that are not formally at war with America, is obvious.
If we accept the premise that terrorism cases can rightfully be categorized under the heading of war, a secondary consideration in determining if military tribunals are the proper venue for their adjudication involves the question of whether a given defendant is a “lawful combatant” or an “unlawful combatant.” The former is entitled to prisoner-of-war status and its accompanying Geneva Convention protections; the latter is entitled to none of that. Article IV of the Geneva Convention defines lawful combatants as those whose military organization meets four very specific criteria: “(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign [a uniform or emblem] recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war.” Al-Qaeda fails even to come close to satisfying these conditions. In the 1942 Ex parte Quirin case, the U.S. Supreme Court spelled out the implications of such failure:
[T]he law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
“Our government, the Court added, “by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear ‘fixed and distinctive emblems.’”
If a terror suspect does not even qualify for designation as a lawful combatant, giving him access to the civil rights protections of the American jury system can properly be defined as an act of madness.
In recent years a Geneva Protocol relaxed the foregoing criteria in recognition of guerrilla fighters as legitimate combatants in what are nominally “wars of national liberation,” even though they neither wear uniforms nor bear arms openly at all times. But even under this lower standard, the designation of “lawful combatant” requires one to eschew indiscriminate attacks against civilians and to bear arms openly during military deployment and engagement — requirements that al-Qaeda operatives do not fulfill. As Crona and Richardson write, “A casually attired driver of a van carrying a concealed bomb does not fit anyone's definition of a lawful combatant.”
Apart from the question of whether military tribunals are a good idea philosophically, trying terrorists and war criminals in civilian rather than military courts poses a number of serious problems from a practical standpoint. For one thing, the rules defining admissible and inadmissible evidence in each venue differ dramatically. In civilian trials, neither coerced testimony, nor confessions made in the absence of a Miranda warning, nor hearsay evidence can presented to the court; in military tribunals the opposite is true, provided that the court determines such evidence to have “probative value to a reasonable person.” Crona and Richardson explain the profound significance of this:
A relaxation of the hearsay rule might become critical in a prosecution for terrorism where it may be impossible to produce live witnesses to an event which occurred years earlier in a foreign country. For example, the indictment in the Pan Am Flight 103 case details the alleged purchase of clothing, by Libyan intelligence agent Abdel Bassett, for placement in the suitcase with the bomb. The clothing was used to disguise the contents of the suitcase containing the bomb, which was placed inside a radio-cassette player. Under the rules of evidence applicable in U.S. District Court, the prosecution would have to produce in person the Maltese shopkeeper to identify Abdel Bassett as the man who allegedly purchased the clothing back in 1988, as opposed to producing the investigator who tracked down the shopkeeper and showed him a photograph of Abdel Bassett. Even if we assume that the shopkeeper could be located six years or more after the fact, we recognize that it is nearly impossible to secure involuntary testimony from a witness who is a citizen of a foreign country, especially one that historically has been less than sympathetic to the United States. The reach of a federal court subpoena simply does not extend to Malta.
-
The rules governing the admissibility of coerced testimony and hearsay have a direct bearing on the case of Jose Padilla, who is now being tried in a civilian court. In June 2004 the Justice Department released a declassified document enumerating Padilla’s various terrorist plans and his al-Qaeda connections. The information therein came not only from Padilla’s own admissions, but also from a number of additional al-Qaeda detainees who independently confirmed (sometimes through coerced testimony) the details that Padilla gave, particularly about the plots to detonate a “dirty bomb” and to blow up apartment buildings. But none of this evidence will be admissible in Padilla’s current trial. Consequently, he is being formally charged with offenses of far less gravity than those detailed in the aforementioned Justice Department document. As The New York Times explains:
[C]onstrained by strict federal rules of evidence that would prohibit or limit the use of information obtained during [coercive] interrogations, the government will make a far more circumscribed case against Mr. Padilla in court, effectively demoting him from Al-Qaeda’s dirty bomber to foot soldier in a somewhat nebulous conspiracy. … Senior government officials have said publicly that Mr. Padilla provided self-incriminating information during interrogations, admitting, they said, to undergoing basic terrorist training, to accepting an assignment to blow up apartment buildings in the United States, and to attending a farewell dinner with Khaled Sheikh Mohammed, the suspected master planner of the Sept. 11 attacks, before he flew to Chicago in 2002. But any confessions by Mr. Padilla while he was detained without charges and denied access to counsel — whether or not he was mistreated, as his lawyers claim — would not be admissible in court. And it is unlikely that information obtained during the harsh questioning of Al-Qaeda detainees would be admissible, either....
Trials of terrorists in civilian courts are beset by further practical limitations as well. Consider, for example, a hypothetical instance where U.S. military personnel capture a foreign terrorist overseas and transport him to the United States, against his will, for trial. Explains attorney Mitchell Lathrop: “Immediately apparent are the issues of the legitimacy of the exercise of criminal jurisdiction over him by the United States, i.e., his arrest in the first instance, and his involuntary transportation to the United States. Then come the issues of the selection of the proper jurisdiction for the trial, the application of the laws of his own country, the selection of a jury, and even personal and subject matter jurisdiction of U.S. courts. Any qualified defense lawyer would certainly challenge jurisdiction and a series of complicated appeals would inevitably result. In the final analysis, a plea bargain could well result just to avoid the interminable delays.” Dealing with terrorists under such a set of rules is analogous to participating in a shootout where only the enemy’s weapon is loaded. Moreover, it signals to the watching world that Americans have become consumed by guilt vis a vis the allegedly irredeemable flaws of their own culture and, as a consequence, do not possess the requisite courage for dealing aggressively with those who would seek to destroy their country.
Another exceedingly significant weakness inherent in civilian trials for terrorists is the fact that in such proceedings, there exists a high likelihood that classified intelligence sources will be compromised. If the government wishes to present certain incriminating evidence in a civilian trial, which is open to the public, it must disclose its sources as well as the techniques it used for obtaining the information from them. This obviously would place those sources in grave danger and would quickly lead to the non-cooperation or disappearance of many of them — to say nothing of the future potential informants who would undoubtedly choose to avoid placing themselves in similar peril. Moreover, the effectiveness of any publicly disclosed information-gathering techniques would thereafter be permanently compromised. As John Dean writes, “Many cases have never been prosecuted against criminals because to do so would force disclosure of a valued intelligence source — be it an informant, an enemy code that had been broken, or an illegal electronic intelligence source.” By contrast, military tribunals permit incriminating evidence to be presented to the judge and jury, while being kept secret from the public as well as from the defendant and his attorney.
Critics commonly suggest that, given the foregoing ground rules, military tribunals are little more than kangaroo courts where defendants have no chance of receiving a fair hearing. This may well have been true in Stalin’s Russia, but by no means has it been the case where Western democracies are concerned. Consider the post-World War II Nuremberg trials of the most important captured leaders of Nazi Germany, architects of the Holocaust. The International Military Tribunal at Nuremberg acquitted three of the twenty-two major defendants; sentenced four others to twenty years in prison or less; and sentenced three to life in prison. In other words, nearly half of those accused were spared the death penalty. Similarly, United States military tribunals, which were composed solely of American judges, tried 177 other Nazi officials and members of the SS, convicting 142 and executing only 12. It can be reasonably argued that military jurors are less likely than their civilian counterparts to render decisions rooted in “inflamed passions” rather than in solid evidence. Finally, we must acknowledge that those who serve as jurors in the civilian trials of accused terrorists may, if they render “guilty” verdicts, be extremely vulnerable to violent retribution from affiliated terrorist and militia groups — another argument against civilian trials for terrorists.
For those who are concerned about legal precedent, it must be understood that the use of military tribunals for the adjudication of war crimes is in no way a departure from past practices. As noted earlier, military commissions were used commonly during the Civil War. Prior to that, General George Washington employed such tribunals during the American Revolution in the late 18th century. In the era following the ratification of the U.S. Constitution, military tribunals were first convened by Major General Winfield Scott during the Mexican-American War of 1846-48, to adjudicate the alleged war crimes of American troops and Mexican guerrilla fighters alike. World War II also saw the use of military courts, the most famous case involving eight marines of the Third Reich (one of whom was an American citizen named Herbert Haupt) who rode a Nazi U-boat to the east coast of the United States, where, laden with explosives, they disembarked and set off toward various locations with the intent of bombing railroads, hydroelectric plants, factories, department stores, and defense facilities across the country. The saboteurs were wearing no military uniforms or identifying emblems when they were captured, meaning that they were, in the eyes of the law (as defined by the Supreme Court in Ex parte Quirin, quoted earlier in this article), “unlawful combatants.” Refusing to grant the perpetrators civilian jury trials, President Franklin D. Roosevelt quickly created a secret military commission to hear their cases. All eight were convicted and sentenced to death, though two turncoats later had their sentences commuted to life in prison.
Notwithstanding (or perhaps because of) the indisputable fact that trials by military commissions would permit the United States to prosecute terrorism cases much more quickly and effectively than would civilian trials, the political Left overwhelmingly condemns such tribunals, calling instead for greater civil liberties safeguards for suspected terrorists. Columbia University historian Alan Brinkley calls the use of military tribunals “one of the most extraordinary assaults on civil liberties” in American history. Senator Harry Reid, D-NV, complains, remarkably, that the Military Commissions Act of 2006 “does not provide the terror suspects with enough of the civil rights granted to Americans facing trials in U.S. courts.” And Senator Chris Dodd, D-CT, a presidential candidate for 2008, has introduced legislation that would give habeas corpus protections to military detainees; prohibit the introduction of evidence that was gained through coercive methods; authorize military judges to exclude hearsay evidence they deem to be unreliable; and narrow the definition of “unlawful enemy combatant.”
Such is the mindset of the Left — ever prepared to defend the supposed rights and liberties of every last terrorist, as if the Constitution of the United States were nothing more than a suicide pact for the American people.
Sources:
* Spencer J. Crona and Neal A. Richardson, “Justice For War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism” (Summer/Fall 1996)
* John Dean, “The Critics Are Wrong” (November 23, 2001)
* John Dean, “Appropriate Justice for Terrorists” (September 28, 2001)
* John Dean, “Military Tribunals: A Long And Mostly Honorable History” (December 7, 2001)
* Michael C. Dorf, “What Is an ‘Unlawful Combatant,’ and Why it Matters” (January 23, 2002)
* Henry Mark Holzer, “Who’s Who Among American Terrorists” (October 17, 2002)
* Henry Mark Holzer, “The Fifth Column’s Legal Team” (June 18, 2002)
* Mitchell L. Lathrop, “A Realistic Look at Terrorism Trials” (November 2001)
* Michelle Malkin, “No More Jury Trials for Terrorists” (October 24, 2001)
* Deborah Sontag, “In Padilla Wiretaps, Murky View of ‘Jihad’ Case” (January 4, 2007)
* Jonathan Weisman, “Battle Looms in Congress over Military Tribunals” (July 13, 2006)
* “U.S. Supreme Court: Holtzman v. Schlesinger, 414 U.S. 1304” (1973)
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Mig,
You know that circumstantial evidence is admissible in standard criminal trials, right? As an example, the Lacy Peterson murder case was based primarily on circumstantial evidence.
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http://www.criminal-law-lawyer-source.com/terms/direct-evidence.html
Direct Evidence
One of the most important characteristics of evidence is its reliability . The two types of evidence used in court proceedings are direct evidence and circumstantial evidence. While one or the other can be valuable solely in the conviction of a criminal, the presence of both can solidify a case.
Circumstantial evidence is evidence that doesn't establish guilt in a straightforward sense, but it gives a rise to an inference of guilt. For example, a receipt for purchasing a gun is direct evidence that a certain person owned the gun but indirect that he used it in committing a crime. Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.
As its name suggests, direct evidence relates immediately to the allegation being tested. If the direct evidence is true, the allegation is established. Direct evidence, on the other hand, is evidence of a fact based on a witness's personal knowledge or observation of that fact. An example of direct evidence would be the surveillance video of a person robbing a convenience store, or a witness who saw a person stealing a car. A person's guilt of a charged crime may be proven by direct evidence alone, if that evidence satisfies a jury beyond a reasonable doubt of the defendant's guilt regarding that crime.
The law draws no distinction between circumstantial evidence and direct evidence in terms of weight or importance. Direct evidence or circumstantial evidence may be enough to establish guilt beyond reasonable doubt, depending on the facts of the case as the jury finds them.
Direct evidence can have varying degrees of clout depending on the actual witness delivering the testimony. Direct evidence from a legitimate, trust-worthy source will have a stronger bearing on the jury than that of a shady character, even under oath. Bending the truth a little here and there can skew direct evidence and is common with defense testimony.
Whether direct evidence or circumstantial evidence is the basis for testimony, the jury must be able to determine what facts were proven, if any at all. Any facts, upon which an inference of guilt can be drawn, must be proven beyond a reasonable doubt. After the facts have been determined, the jury can decide what inferences can be drawn from those facts. Direct evidence alleviates the majority of inferential thinking because it is based on the sole observation of the fact, and not on the basis that "this is probably what happened because of this."
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Just a quick yip here to respond to SB Mig's question to me:
Part of the concern over habeas corpus I believe to be due to some comments made by recently departed AG Albert Gonzales which left even me looking like a Jewish Don King. Sen. Spector's comments quoted by SB Mig IIRC were in response to AG AG's comments on HC.
IMHO there has been considerable smoke blown on the matter that is the subject of this thread. The Bush team's approach I think could have been much better and has in some cases generated some of the concerns. This I suspect to have been due in part to that portion of the opposition who simply loathes Bush, loathes the War, doesn't think there is a war or a danger to us, wants us to lose, etc. IMO some of this opposition has gotten right up to the line of treason when it reveals military secrets concerning funding Iraqi journalists, following enemy financial flows and the like. In return the Bush people have simply figured WTF, nothing we explain will ever satisfy these people-- whom at the moment have been busy drawing the enemy's attention to the fact that many calls between countries other than the US are actually routed through the US and that we have been listening in. I find it quite absurd to call this "spying on American citizens" or even to call listening to foreign enemy jihadis calling America "spying on American citizens".
One result of all this is to concern unecessarily good-hearted American people who quite properly wish to be vigilant about our freedoms-- we are in times where the inherent dynamic can easily lead us astray! With so much smoke, surely there must be fire! An example of unnecessary concerns would be SB Mig's concerns over circumstantial evidence-- an utter non-issue as so ably described by GM's post.
Overall I think GM is doing an outstanding job of presenting clear analysis of a most vexing problem.
SB Mig's central question though does remain: "What safeguards prevent application of "non-habeas" to our own population?"
SB, what did you think of the two Mukasey articles which I posted above?
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Surveillance Showdown
By DAVID B. RIVKIN JR. and LEE A. CASEY
September 24, 2007
Would any sane country purposefully limit its ability to spy on enemy communications in time of war? That is the question Congress must answer as it takes up reform of the Foreign Intelligence Surveillance Act (FISA) this week. Privacy activists, civil libertarians and congressional Democrats argue that both foreign and domestic eavesdropping must be subject to judicial scrutiny and oversight, even if this means drastically reducing the amount of foreign intelligence information available to the government, without ever acknowledging the costs involved. It is time the American people had an open and honest debate on the relative importance of privacy and security.
FISA, of course, is the law regulating the government's interception of "electronic communications" for foreign intelligence purposes. Earlier this year the special FISA court narrowed dramatically the National Security Agency's (NSA) ability to collect overseas intelligence under the law, so Congress passed a six-month amendment before its August recess to allow current surveillance programs to continue. That amendment should be made permanent.
When FISA was enacted in 1978, most of this foreign intelligence collection was accomplished by NSA satellites and "listening posts" located outside of the United States. That enabled that agency to acquire, without any judicial involvement, vast quantities of global communications. The fact that foreign targets contacted Americans was of no legal consequence. Even the strongest congressional proponents of FISA's regulation of surveillance activities recognized that intelligence gathering was a key executive function, and the U.S. needed as much foreign intelligence as possible. This bipartisan consensus -- that FISA compliance should not impede foreign intelligence collection -- was all the more notable coming amidst the congressional reaction to Watergate and at a time when the Cold War threats to national security, while formidable, did not require real-time surveillance of numerous nonstate actors.
Today, primarily because of the communications technology revolution, much of the same foreign intelligence information, focused on non-U.S. persons overseas, passes along U.S.-based fiber optics systems. Unfortunately, much of the Democratic congressional leadership says this new world requires more stringent regulation than in the past because of the risk to the privacy of innocent Americans. But this problem is one inherent in all surveillance schemes whether they're overseen by courts or not.
All suspects, whether garden-variety criminals or terrorists, whether surveilled with or without a warrant, invariably contact numerous innocents. Requiring the government to obtain a judicial order for all overseas surveillance whenever an American's communications might be intercepted will not solve this problem.
The government does utilize a series of "minimization" procedures governing how foreign intelligence information is handled to prevent its inappropriate use or disclosure. As explained by CIA Director Michael Hayden in 2006, referring to the post-Sept. 11 terrorist surveillance program before it was subjected to FISA: "if the U.S. person information isn't relevant [without foreign intelligence value], the data is suppressed." The fact that senior U.S. government officials (unlike their counterparts in other countries) do not routinely have access to the unredacted surveillance-generated information about American citizens, and that the system is operated largely by career civil servants, provides an additional layer of privacy protection.
Warrantless surveillance is also constitutional. The Fourth Amendment prohibits only "unreasonable" searches and seizures. Although today's privacy advocates routinely claim that warrantless searches are inherently unreasonable, that position is insupportable. The Supreme Court has repeatedly approved numerous warrantless searches, balancing the government's interests against the relevant privacy expectations. Thus drivers can be subjected to sobriety checkpoints and international travelers are liable to search at the border.
The key in such cases has generally been the presence or absence of a "reasonable expectation of privacy." If there is no reasonable expectation of privacy associated with a particular location or activity, then a warrantless search is not unreasonable. Whether Americans have a reasonable expectation that their international communications -- which may be routed through any number of foreign countries and are routinely subject to capture by foreign intelligence services -- will not be incidentally intercepted by the U.S. government is debatable. But foreign nationals communicating abroad have no reasonable expectation of privacy vis-à-vis the NSA simply because their conversations are electronically transmitted through American switching stations.
On the other side of the scale, of course, is the government's obligation to protect the American people. Because the U.S. faces a dispersed, shadowy, and ideologically committed enemy -- in circumstances where defectors are rare and the CIA's ability to penetrate the hostile networks is extremely limited -- the most proactive electronic surveillance operations are essential. Requiring judicial orders for the collection of foreign intelligence anytime an innocent American's communications may also be intercepted would cripple U.S. intelligence gathering. Obtaining orders against many foreign targets about which comparatively little may be known, including their true identities or the precise modalities of their involvement with jihadist entities, would be impossible.
The privacy advocates claim that surveilling without traditional warrants, albeit still with substantial judicial involvement, "purely" foreign-to-foreign communications is enough. But many of the NSA's most valuable overseas targets routinely contact Americans. Moreover, if the Democratic-leadership authored FISA reform -- which requires judicial involvement once a foreign surveillance target reaches a certain number of communications with the U.S. -- were to pass, every foreign terrorist and spymaster would communicate with the U.S. enough to be enrolled in the warrant-driven surveillance program. As a result, the only people overseas who could still be surveilled warrantlessly would be the ones with the least intelligence value.
The privacy advocates also criticize the NSA's efforts to collect vast quantities of information, claiming that more targeted, individual-specific surveillance is both more privacy-friendly and better protects America's safety. However, unlike the Cold War-era -- when the NSA was focused largely on a few state entities, and had a pretty good idea of who the targets were -- today targeted surveillance alone is not enough. Thousands of individuals participate in various ways in jihadist activities, and even more individuals possess valuable information about them. All of them seek to blend into society, benefiting from the anonymity of modern life and ease of travel and communications. Because their behavior differs in subtle ways from the conduct of law-abiding citizens around them, NSA-led broad surveillance, backed up by various pattern-recognition programs, can identify the right targets.
Indeed, privacy advocates seek to ban the NSA's overseas-focused broad surveillance programs -- and require warrants whenever overseas targets have a number of contacts with the U.S. -- precisely to decrease dramatically the total number of foreigners tracked by the NSA. Their logic is unimpeachable -- the fewer foreign targets are reached by the NSA, the fewer innocent Americans would be caught up in the surveillance net. But this fervent commitment to protecting the privacy of Americans from all intrusions comes at a very high cost; for the first time in history, the U.S. is asked to collect less intelligence about the enemy while prosecuting a war.
Those who want to subject all government surveillance activities to a warrant requirement should honestly acknowledge that this approach would dramatically shrink the stream of foreign intelligence available.
Let's be clear here: Privacy is an important value. American society cannot afford, however, to elevate privacy concerns beyond all other considerations. Being suspicious about governmental power is consistent with our constitutional values -- the Framers certainly were so inclined -- but being paranoid about one's own government is not.
Messrs. Rivkin and Casey served in the U.S. Justice Department under Presidents Ronald Reagan and George H.W. Bush.
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The core issue is that the American legal system is not structured to fight the global jihad. The Clinton administration tried to indict al qaeda into submission. I think 9/11 demonstrated how unsuccessful that strategy was. The criminal justice system and the military both have roles in fighting the war, but we have to fight the war by aggressive, intelligence driven strikes. Just as they use asymmetrical tactics against us, we must use asymmetrical tactics against them. The way to fight and win is by hunting them down, capturing and killing their networks. You don't do that by trying to appease the ACLU.
We could never teach the jihadists to love us, we can however teach them to fear us. They have no legal standing under the rules of law. We can catch them, interrogate them and kill them as needed. We should not hesitate to do so.
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I can't remember why, but when this Treaty first came up for confirmation years ago I was against it.
I have mixed feelings about Co-author James Baker, but George Shultz is someone who I've respected greatly over the years.
============
Why the 'Law of the Sea'
Is a Good Deal
By JAMES A. BAKER III and GEORGE P. SHULTZ
September 26, 2007; Page A21
The Convention of the Law of the Sea is back. It will be the subject of Senate hearings this week. If the U.S. finally becomes party to this treaty, it will be a boon for our national security and our economic interests. U.S. accession will codify our maritime rights and give us new tools to advance national interests.
The convention's primary functions are to define maritime zones, preserve freedom of navigation, allocate resource rights, establish certainty necessary for various businesses that depend on the sea and protect the marine environment. Flaws in the deep-seabed mining chapter that prevented President Reagan from supporting the convention were fixed in 1994. Both President Bill Clinton and George W. Bush have supported accession. Yet, the U.S. remains one of the few major countries not party to the convention.
Our participation would increase our ability to wage the war on terror. The convention assures maximum maritime naval and air mobility, which is essential for our military forces to operate effectively. It provides the stability and framework for our forces, weapons and materials to be deployed without hindrance -- ensuring our ability to navigate past critical choke points throughout the world.
Some say it's good enough to protect our navigational interests through customary law. If that approach fails, then we can employ the threat of force or the use of it. However, because customary law is vague, it does not provide a strong foundation for critical national security rights. Meanwhile, the use of force can be risky and costly. Joining the convention would put our vital rights on a firmer legal basis, gaining legal certainty and legitimacy as we operate in the world's largest international zone.
This is why the U.S. military has been a strong advocate of joining the Law of the Sea Convention. This point was reinforced in a recent letter sent by the Joint Chiefs of Staff to Sen. Joe Biden, chairman of the Senate Foreign Relations Committee, calling on the Senate to support U.S. accession because "t furthers our National Security Strategy, strengthens the coalition, and supports the President's Proliferation Security Initiative."
The convention also provides substantial economic benefits to the United States. It accords coastal states the right to declare an Exclusive Economic Zone -- an area where they have exclusive rights to explore and exploit, and the responsibility to conserve and manage, living and non-living resources extending 200 nautical miles seaward from their shoreline. Our nation's EEZ is larger than that of any country in the world -- covering an area greater than the landmass of the lower 48 states. This zone can be extended beyond 200 nautical miles if certain geological criteria are met. This has potentially significant economic benefits to the U.S. where its continental shelves may be as broad as 600 miles, such as off Alaska, an area containing vast natural resources.
Further, as the world's pre-eminent maritime power with one of the longest coastlines, the U.S. has more to gain and to lose than any other country in terms of how the convention's terms are interpreted and applied.
Accession would increase our influence by allowing us to nominate experts for the technical bodies that apply the convention's terms, address proposals to amend the convention from within (rather than from the sidelines), and increase our credibility as a leader in international ocean policy.
As we speak, international deliberations for rights to energy- and mineral-rich areas in the Arctic beyond the traditional 200-mile EEZ are proceeding without U.S. input. Just recently, Russia placed its flag on the North Pole's ocean floor. While seen as largely symbolic, the part of the Arctic Ocean claimed by Russia could hold oil and gas deposits equal to about 20% of the world's current oil and gas reserves. If the U.S. was party to the treaty, we would strengthen our capacity to influence deliberations and negotiations involving other nations' attempts to extend their continental boundaries.
As a non-party, however, the U.S. has limited options for disputing claims such as these and is stymied from taking full advantage of resources that could be under U.S. jurisdiction. Similarly, lack of participation in the convention is jeopardizing economic opportunities associated with commercial deep-sea mining operations in international waters beyond exclusive economic zones -- opportunities currently being pursued by Canadian, Australian and German firms.
The continuing delay of U.S. accession to the convention compromises our nation's authority to exercise its sovereign interests, jeopardizes its national and economic security, and limits its leadership role in international ocean policy.
Given President Bush's public statement of support for the convention, the support of prior presidents and their administrations and the strong, bipartisan and diverse support it has from all major U.S. ocean industries, the environmental community and national security experts, it is clearly time for the Senate to act by supporting accession to the Convention on the Law of the Sea.
Messrs. Baker and Shultz are former secretaries of state.
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Aha! Here are the reasons against!
=====
“Time was, Ronald Reagan’s 600-ship Navy gave us freedom of the seas. But if Joe Biden and the Senate have their way, we’ll need the permission of 21 judges in Hamburg. On Thursday, presidential wannabe Biden will chair hearings intended to lead to the ratification of the quarter-century-old Law of the Sea treaty (LOST), a document that would severely restrict our ability to use oceans to defend ourselves and would turn over control of 70% of the world’s surface to a U.N. bureaucracy. Supporters say we must be a signatory to guarantee our share of the resources to be found under the world’s oceans and to avoid situations like the race to claim the sea bed under the Arctic between Russia, Canada and other states. But experience suggests a Law of the Sea tribunal won’t protect interests we should be protecting ourselves. LOST would create an International Seabed Authority (ISA) with the power to regulate and tax things like seabed mining, fishing rights and deep-sea oil exploration. The ISA would decide who gets access to the sea’s resources, and the companies granted these rights would pay a royalty to the ISA. When he refused to sign ISA in 1982, President Reagan rightly decided the U.S. shouldn’t be a part of this global resource grab and redistribution of wealth. It’s in the area of national security that LOST is most dangerous. The [Bush] administration cites military support for the treaty because of its uniform limit on territorial waters and its establishment of ‘rules of the road’ for littoral waters. But current international law already protects nonaggressive passage of military ships. When Reagan vetoed the treaty, the U.S. Navy had 594 warships. We could protect our own right of passage. Today the fleet has withered to 276 vessels. Is that why we need the treaty? The answer is to build more warships. Our access to the seas should be guaranteed by the Navy and not a U.N. bureaucracy.” —Investor’s Business Daily
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http://hotair.com/archives/2007/09/28/why-fisa-needs-to-be-updated-or-scrapped/
FISA kills.
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The NY Times is always a caveat lector source, but that said, this piece troubles me greatly.
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By SCOTT SHANE, DAVID JOHNSTON and JAMES RISEN
Published: October 4, 2007
This article is by Scott Shane, David Johnston and James Risen.
WASHINGTON, Oct. 3 — When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.
But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.
The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.
Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.
Later that year, as Congress moved toward outlawing “cruel, inhuman and degrading” treatment, the Justice Department issued another secret opinion, one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard.
The classified opinions, never previously disclosed, are a hidden legacy of President Bush’s second term and Mr. Gonzales’s tenure at the Justice Department, where he moved quickly to align it with the White House after a 2004 rebellion by staff lawyers that had thrown policies on surveillance and detention into turmoil.
Congress and the Supreme Court have intervened repeatedly in the last two years to impose limits on interrogations, and the administration has responded as a policy matter by dropping the most extreme techniques. But the 2005 Justice Department opinions remain in effect, and their legal conclusions have been confirmed by several more recent memorandums, officials said. They show how the White House has succeeded in preserving the broadest possible legal latitude for harsh tactics.
A White House spokesman, Tony Fratto, said Wednesday that he would not comment on any legal opinion related to interrogations. Mr. Fratto added, “We have gone to great lengths, including statutory efforts and the recent executive order, to make it clear that the intelligence community and our practices fall within U.S. law” and international agreements.
More than two dozen current and former officials involved in counterterrorism were interviewed over the past three months about the opinions and the deliberations on interrogation policy. Most officials would speak only on the condition of anonymity because of the secrecy of the documents and the C.I.A. detention operations they govern.
When he stepped down as attorney general in September after widespread criticism of the firing of federal prosecutors and withering attacks on his credibility, Mr. Gonzales talked proudly in a farewell speech of how his department was “a place of inspiration” that had balanced the necessary flexibility to conduct the war on terrorism with the need to uphold the law.
Associates at the Justice Department said Mr. Gonzales seldom resisted pressure from Vice President Dick Cheney and David S. Addington, Mr. Cheney’s counsel, to endorse policies that they saw as effective in safeguarding Americans, even though the practices brought the condemnation of other governments, human rights groups and Democrats in Congress. Critics say Mr. Gonzales turned his agency into an arm of the Bush White House, undermining the department’s independence.
The interrogation opinions were signed by Steven G. Bradbury, who since 2005 has headed the elite Office of Legal Counsel at the Justice Department. He has become a frequent public defender of the National Security Agency’s domestic surveillance program and detention policies at Congressional hearings and press briefings, a role that some legal scholars say is at odds with the office’s tradition of avoiding political advocacy.
Mr. Bradbury defended the work of his office as the government’s most authoritative interpreter of the law. “In my experience, the White House has not told me how an opinion should come out,” he said in an interview. “The White House has accepted and respected our opinions, even when they didn’t like the advice being given.”
The debate over how terrorist suspects should be held and questioned began shortly after the Sept. 11, 2001, attacks, when the Bush administration adopted secret detention and coercive interrogation, both practices the United States had previously denounced when used by other countries. It adopted the new measures without public debate or Congressional vote, choosing to rely instead on the confidential legal advice of a handful of appointees.
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The policies set off bruising internal battles, pitting administration moderates against hard-liners, military lawyers against Pentagon chiefs and, most surprising, a handful of conservative lawyers at the Justice Department against the White House in the stunning mutiny of 2004. But under Mr. Gonzales and Mr. Bradbury, the Justice Department was wrenched back into line with the White House.
After the Supreme Court ruled in 2006 that the Geneva Conventions applied to prisoners who belonged to Al Qaeda, President Bush for the first time acknowledged the C.I.A.’s secret jails and ordered their inmates moved to Guantánamo Bay, Cuba. The C.I.A. halted its use of waterboarding, or pouring water over a bound prisoner’s cloth-covered face to induce fear of suffocation.
But in July, after a monthlong debate inside the administration, President Bush signed a new executive order authorizing the use of what the administration calls “enhanced” interrogation techniques — the details remain secret — and officials say the C.I.A. again is holding prisoners in “black sites” overseas. The executive order was reviewed and approved by Mr. Bradbury and the Office of Legal Counsel.
Douglas W. Kmiec, who headed that office under President Ronald Reagan and the first President George Bush and wrote a book about it, said he believed the intense pressures of the campaign against terrorism have warped the office’s proper role.
“The office was designed to insulate against any need to be an advocate,” said Mr. Kmiec, now a conservative scholar at Pepperdine University law school. But at times in recent years, Mr. Kmiec said, the office, headed by William H. Rehnquist and Antonin Scalia before they served on the Supreme Court, “lost its ability to say no.”
“The approach changed dramatically with opinions on the war on terror,” Mr. Kmiec said. “The office became an advocate for the president’s policies.”
From the secret sites in Afghanistan, Thailand and Eastern Europe where C.I.A. teams held Qaeda terrorists, questions for the lawyers at C.I.A. headquarters arrived daily. Nervous interrogators wanted to know: Are we breaking the laws against torture?
The Bush administration had entered uncharted legal territory beginning in 2002, holding prisoners outside the scrutiny of the International Red Cross and subjecting them to harrowing pressure tactics. They included slaps to the head; hours held naked in a frigid cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; or the ultimate, waterboarding.
Never in history had the United States authorized such tactics. While President Bush and C.I.A. officials would later insist that the harsh measures produced crucial intelligence, many veteran interrogators, psychologists and other experts say that less coercive methods are equally or more effective.
With virtually no experience in interrogations, the C.I.A. had constructed its program in a few harried months by consulting Egyptian and Saudi intelligence officials and copying Soviet interrogation methods long used in training American servicemen to withstand capture. The agency officers questioning prisoners constantly sought advice from lawyers thousands of miles away.
“We were getting asked about combinations — ‘Can we do this and this at the same time?’” recalled Paul C. Kelbaugh, a veteran intelligence lawyer who was deputy legal counsel at the C.I.A.’s Counterterrorist Center from 2001 to 2003.
Interrogators were worried that even approved techniques had such a painful, multiplying effect when combined that they might cross the legal line, Mr. Kelbaugh said. He recalled agency officers asking: “These approved techniques, say, withholding food, and 50-degree temperature — can they be combined?” Or “Do I have to do the less extreme before the more extreme?”
The questions came more frequently, Mr. Kelbaugh said, as word spread about a C.I.A. inspector general inquiry unrelated to the war on terrorism. Some veteran C.I.A. officers came under scrutiny because they were advisers to Peruvian officers who in early 2001 shot down a missionary flight they had mistaken for a drug-running aircraft. The Americans were not charged with crimes, but they endured three years of investigation, saw their careers derailed and ran up big legal bills.
That experience shook the Qaeda interrogation team, Mr. Kelbaugh said. “You think you’re making a difference and maybe saving 3,000 American lives from the next attack. And someone tells you, ‘Well, that guidance was a little vague, and the inspector general wants to talk to you,’” he recalled. “We couldn’t tell them, ‘Do the best you can,’ because the people who did the best they could in Peru were looking at a grand jury.”
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Mr. Kelbaugh said the questions were sometimes close calls that required consultation with the Justice Department. But in August 2002, the department provided a sweeping legal justification for even the harshest tactics.
That opinion, which would become infamous as “the torture memo” after it was leaked, was written largely by John Yoo, a young Berkeley law professor serving in the Office of Legal Counsel. His broad views of presidential power were shared by Mr. Addington, the vice president’s adviser. Their close alliance provoked John Ashcroft, then the attorney general, to refer privately to Mr. Yoo as Dr. Yes for his seeming eagerness to give the White House whatever legal justifications it desired, a Justice Department official recalled.
Mr. Yoo’s memorandum said no interrogation practices were illegal unless they produced pain equivalent to organ failure or “even death.” A second memo produced at the same time spelled out the approved practices and how often or how long they could be used.
Despite that guidance, in March 2003, when the C.I.A. caught Khalid Sheikh Mohammed, the chief planner of the Sept. 11 attacks, interrogators were again haunted by uncertainty. Former intelligence officials, for the first time, disclosed that a variety of tough interrogation tactics were used about 100 times over two weeks on Mr. Mohammed. Agency officials then ordered a halt, fearing the combined assault might have amounted to illegal torture. A C.I.A. spokesman, George Little, declined to discuss the handling of Mr. Mohammed. Mr. Little said the program “has been conducted lawfully, with great care and close review” and “has helped our country disrupt terrorist plots and save innocent lives.”
“The agency has always sought a clear legal framework, conducting the program in strict accord with U.S. law, and protecting the officers who go face-to-face with ruthless terrorists,” Mr. Little added.
Some intelligence officers say that many of Mr. Mohammed’s statements proved exaggerated or false. One problem, a former senior agency official said, was that the C.I.A.’s initial interrogators were not experts on Mr. Mohammed’s background or Al Qaeda, and it took about a month to get such an expert to the secret prison. The former official said many C.I.A. professionals now believe patient, repeated questioning by well-informed experts is more effective than harsh physical pressure.
Other intelligence officers, including Mr. Kelbaugh, insist that the harsh treatment produced invaluable insights into Al Qaeda’s structure and plans.
“We leaned in pretty hard on K.S.M.,” Mr. Kelbaugh said, referring to Mr. Mohammed. “We were getting good information, and then they were told: ‘Slow it down. It may not be correct. Wait for some legal clarification.’”
The doubts at the C.I.A. proved prophetic. In late 2003, after Mr. Yoo left the Justice Department, the new head of the Office of Legal Counsel, Jack Goldsmith, began reviewing his work, which he found deeply flawed. Mr. Goldsmith infuriated White House officials, first by rejecting part of the National Security Agency’s surveillance program, prompting the threat of mass resignations by top Justice Department officials, including Mr. Ashcroft and Mr. Comey, and a showdown at the attorney general’s hospital bedside.
Then, in June 2004, Mr. Goldsmith formally withdrew the August 2002 Yoo memorandum on interrogation, which he found overreaching and poorly reasoned. Mr. Goldsmith, who left the Justice Department soon afterward, first spoke at length about his dissenting views to The New York Times last month, testified before the Senate Judiciary Committee on Tuesday.
Six months later, the Justice Department quietly posted on its Web site a new legal opinion that appeared to end any flirtation with torture, starting with its clarionlike opening: “Torture is abhorrent both to American law and values and to international norms.”
A single footnote — added to reassure the C.I.A. — suggested that the Justice Department was not declaring the agency’s previous actions illegal. But the opinion was unmistakably a retreat. Some White House officials had opposed publicizing the document, but acquiesced to Justice Department officials who argued that doing so would help clear the way for Mr. Gonzales’s confirmation as attorney general.
If President Bush wanted to make sure the Justice Department did not rebel again, Mr. Gonzales was the ideal choice. As White House counsel, he had been a fierce protector of the president’s prerogatives. Deeply loyal to Mr. Bush for championing his career from their days in Texas, Mr. Gonzales would sometimes tell colleagues that he had just one regret about becoming attorney general: He did not see nearly as much of the president as he had in his previous post.
Among his first tasks at the Justice Department was to find a trusted chief for the Office of Legal Counsel. First he informed Daniel Levin, the acting head who had backed Mr. Goldsmith’s dissents and signed the new opinion renouncing torture, that he would not get the job. He encouraged Mr. Levin to take a position at the National Security Council, in effect sidelining him.
Mr. Bradbury soon emerged as the presumed favorite. But White House officials, still smarting from Mr. Goldsmith’s rebuffs, chose to delay his nomination. Harriet E. Miers, the new White House counsel, “decided to watch Bradbury for a month or two. He was sort of on trial,” one Justice Department official recalled.
Mr. Bradbury’s biography had a Horatio Alger element that appealed to a succession of bosses, including Justice Clarence Thomas of the Supreme Court and Mr. Gonzales, the son of poor immigrants. Mr. Bradbury’s father had died when he was an infant, and his mother took in laundry to support her children. The first in his family to go to college, he attended Stanford and the University of Michigan Law School. He joined the law firm of Kirkland & Ellis, where he came under the tutelage of Kenneth W. Starr, the Whitewater independent prosecutor.
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Part Two
Page 4 of 5)
Mr. Bradbury belonged to the same circle as his predecessors: young, conservative lawyers with sterling credentials, often with clerkships for prominent conservative judges and ties to the Federalist Society, a powerhouse of the legal right. Mr. Yoo, in fact, had proposed his old friend Mr. Goldsmith for the Office of Legal Counsel job; Mr. Goldsmith had hired Mr. Bradbury as his top deputy.
“We all grew up together,” said Viet D. Dinh, an assistant attorney general from 2001 to 2003 and very much a member of the club. “You start with a small universe of Supreme Court clerks, and you narrow it down from there.”
But what might have been subtle differences in quieter times now cleaved them into warring camps.
Justice Department colleagues say Mr. Gonzales was soon meeting frequently with Mr. Bradbury on national security issues, a White House priority. Admirers describe Mr. Bradbury as low-key but highly skilled, a conciliator who brought from 10 years of corporate practice a more pragmatic approach to the job than Mr. Yoo and Mr. Goldsmith, both from the academic world.
“As a practicing lawyer, you know how to address real problems,” said Noel J. Francisco, who worked at the Justice Department from 2003 to 2005. “At O.L.C., you’re not writing law review articles and you’re not theorizing. You’re giving a client practical advice on a real problem.”
As he had at the White House, Mr. Gonzales usually said little in meetings with other officials, often deferring to the hard-driving Mr. Addington. Mr. Bradbury also often appeared in accord with the vice president’s lawyer.
Mr. Bradbury appeared to be “fundamentally sympathetic to what the White House and the C.I.A. wanted to do,” recalled Philip Zelikow, a former top State Department official. At interagency meetings on detention and interrogation, Mr. Addington was at times “vituperative,” said Mr. Zelikow, but Mr. Bradbury, while taking similar positions, was “professional and collegial.”
While waiting to learn whether he would be nominated to head the Office of Legal Counsel, Mr. Bradbury was in an awkward position, knowing that a decision contrary to White House wishes could kill his chances.
Charles J. Cooper, who headed the Office of Legal Counsel under President Reagan, said he was “very troubled” at the notion of a probationary period.
“If the purpose of the delay was a tryout, I think they should have avoided it,” Mr. Cooper said. “You’re implying that the acting official is molding his or her legal analysis to win the job.”
Mr. Bradbury said he made no such concessions. “No one ever suggested to me that my nomination depended on how I ruled on any opinion,” he said. “Every opinion I’ve signed at the Office of Legal Counsel represents my best judgment of what the law requires.”
Scott Horton, an attorney affiliated with Human Rights First who has closely followed the interrogation debate, said any official offering legal advice on the campaign against terror was on treacherous ground.
“For government lawyers, the national security issues they were deciding were like working with nuclear waste — extremely hazardous to their health,” Mr. Horton said.
“If you give the administration what it wants, you’ll lose credibility in the academic community,” he said. “But if you hold back, you’ll be vilified by conservatives and the administration.”
In any case, the White House grew comfortable with Mr. Bradbury’s approach. He helped block the appointment of a liberal Ivy League law professor to a career post in the Office of Legal Counsel. And he signed the opinion approving combined interrogation techniques.
Mr. Comey strongly objected and told associates that he advised Mr. Gonzales not to endorse the opinion. But the attorney general made clear that the White House was adamant about it, and that he would do nothing to resist.
Under Mr. Ashcroft, Mr. Comey’s opposition might have killed the opinion. An imposing former prosecutor and self-described conservative who stands 6-foot-8, he was the rare administration official who was willing to confront Mr. Addington. At one testy 2004 White House meeting, when Mr. Comey stated that “no lawyer” would endorse Mr. Yoo’s justification for the N.S.A. program, Mr. Addington demurred, saying he was a lawyer and found it convincing. Mr. Comey shot back: “No good lawyer,” according to someone present.
But under Mr. Gonzales, and after the departure of Mr. Goldsmith and other allies, the deputy attorney general found himself isolated. His troublemaking on N.S.A. and on interrogation, and in appointing his friend Patrick J. Fitzgerald as special prosecutor in the C.I.A. leak case, which would lead to the perjury conviction of I. Lewis Libby, Mr. Cheney’s chief of staff, had irreparably offended the White House.
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“On national security matters generally, there was a sense that Comey was a wimp and that Comey was disloyal,” said one Justice Department official who heard the White House talk, expressed with particular force by Mr. Addington.
Mr. Comey provided some hints of his thinking about interrogation and related issues in a speech that spring. Speaking at the N.S.A.’s Fort Meade campus on Law Day — a noteworthy setting for the man who had helped lead the dissent a year earlier that forced some changes in the N.S.A. program — Mr. Comey spoke of the “agonizing collisions” of the law and the desire to protect Americans.
“We are likely to hear the words: ‘If we don’t do this, people will die,’” Mr. Comey said. But he argued that government lawyers must uphold the principles of their great institutions.
“It takes far more than a sharp legal mind to say ‘no’ when it matters most,” he said. “It takes moral character. It takes an understanding that in the long run, intelligence under law is the only sustainable intelligence in this country.”
Mr. Gonzales’s aides were happy to see Mr. Comey depart in the summer of 2005. That June, President Bush nominated Mr. Bradbury to head the Office of Legal Counsel, which some colleagues viewed as a sign that he had passed a loyalty test.
Soon Mr. Bradbury applied his practical approach to a new challenge to the C.I.A.’s methods.
The administration had always asserted that the C.I.A.’s pressure tactics did not amount to torture, which is banned by federal law and international treaty. But officials had privately decided the agency did not have to comply with another provision in the Convention Against Torture — the prohibition on “cruel, inhuman, or degrading” treatment.
Now that loophole was about to be closed. First Senator Richard J. Durbin, Democrat of Illinois, and then Senator John McCain, the Arizona Republican who had been tortured as a prisoner in North Vietnam, proposed legislation to ban such treatment.
At the administration’s request, Mr. Bradbury assessed whether the proposed legislation would outlaw any C.I.A. methods, a legal question that had never before been answered by the Justice Department.
At least a few administration officials argued that no reasonable interpretation of “cruel, inhuman or degrading” would permit the most extreme C.I.A. methods, like waterboarding. Mr. Bradbury was placed in a tough spot, said Mr. Zelikow, the State Department counselor, who was working at the time to rein in interrogation policy.
“If Justice says some practices are in violation of the C.I.D. standard,” Mr. Zelikow said, referring to cruel, inhuman or degrading, “then they are now saying that officials broke current law.”
In the end, Mr. Bradbury’s opinion delivered what the White House wanted: a statement that the standard imposed by Mr. McCain’s Detainee Treatment Act would not force any change in the C.I.A.’s practices, according to officials familiar with the memo.
Relying on a Supreme Court finding that only conduct that “shocks the conscience” was unconstitutional, the opinion found that in some circumstances not even waterboarding was necessarily cruel, inhuman or degrading, if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist attack, the officials familiar with the legal finding said.
In a frequent practice, Mr. Bush attached a statement to the new law when he signed it, declaring his authority to set aside the restrictions if they interfered with his constitutional powers. At the same time, though, the administration responded to pressure from Mr. McCain and other lawmakers by reviewing interrogation policy and giving up several C.I.A. techniques.
Since late 2005, Mr. Bradbury has become a linchpin of the administration’s defense of counterterrorism programs, helping to negotiate the Military Commissions Act last year and frequently testifying about the N.S.A. surveillance program. Once he answered questions about administration detention policies for an “Ask the White House” feature on a Web site.
Mr. Kmiec, the former Office of Legal Counsel head now at Pepperdine, called Mr. Bradbury’s public activities a departure for an office that traditionally has shunned any advocacy role.
A senior administration official called Mr. Bradbury’s active role in shaping legislation and speaking to Congress and the press “entirely appropriate” and consistent with past practice. The official, who spoke on the condition of anonymity, said Mr. Bradbury “has played a critical role in achieving greater transparency” on the legal basis for detention and surveillance programs.
Though President Bush repeatedly nominated Mr. Bradbury as the Office of Legal Counsel’s assistant attorney general, Democratic senators have blocked the nomination. Senator Durbin said the Justice Department would not turn over copies of his opinions or other evidence of Mr. Bradbury’s role in interrogation policy.
“There are fundamental questions about whether Mr. Bradbury approved interrogation methods that are clearly unacceptable,” Mr. Durbin said.
John D. Hutson, who served as the Navy’s top lawyer from 1997 to 2000, said he believed that the existence of legal opinions justifying abusive treatment is pernicious, potentially blurring the rules for Americans handling prisoners.
“I know from the military that if you tell someone they can do a little of this for the country’s good, some people will do a lot of it for the country’s better,” Mr. Hutson said. Like other military lawyers, he also fears that official American acceptance of such treatment could endanger Americans in the future.
“The problem is, once you’ve got a legal opinion that says such a technique is O.K., what happens when one of our people is captured and they do it to him? How do we protest then?” he asked.
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Supreme Court Refuses to Hear Torture Appeal
NY Times- caveat lector
By LINDA GREENHOUSE
Published: October 10, 2007
WASHINGTON, Oct. 9 — The Supreme Court on Tuesday refused to hear an appeal filed on behalf of a German citizen of Lebanese descent who claims he was abducted by United States agents and then tortured by them while imprisoned in Afghanistan.
Text: 4th Circuit Opinion (El-Masri v. U.S.) (pdf)Without comment, the justices let stand an appeals court ruling that the state secrets privilege, a judicially created doctrine that the Bush administration has invoked to win dismissal of lawsuits that touch on issues of national security, protected the government’s actions from court review. In refusing to take up the case, the justices declined a chance to elaborate on the privilege for the first time in more than 50 years.
The case involved Khaled el-Masri, who says he was detained while on vacation in Macedonia in late 2003, transported by the United States to Afghanistan and held there for five months in a secret prison before being taken to Albania and set free, evidently having been mistaken for a terrorism suspect with a similar name.
Mr. Masri says he was tortured while in the prison. After prosecutors in Germany investigated the case, a court there issued arrest warrants in January for 13 agents of the Central Intelligence Agency. The German Parliament is continuing to investigate the episode, which has become a very public example of the United States government’s program of “extraordinary rendition.”
Mr. Masri, represented by the American Civil Liberties Union, brought a lawsuit in federal court against George J. Tenet, director of central intelligence from 1997 to 2004; three private airline companies; and 20 people identified only as John Doe. He sought damages for treatment that he said violated both the Constitution and international law.
Shortly after he filed the lawsuit in December 2005, the government intervened to seek its dismissal under the state secrets privilege, asserting that to have to provide evidence in the case would compromise national security. That argument succeeded in the Federal District Court in Alexandria, Va., which dismissed the case without permitting Mr. Masri’s lawyers to take discovery. The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., upheld the dismissal in March.
In their Supreme Court appeal, El-Masri v. United States, No. 06-1613, Mr. Masri’s lawyers argued that these rulings allowed the state secrets doctrine to become “unmoored” from its origins as a rule to be invoked to shield specific evidence in a lawsuit against the government, rather than to dismiss an entire case before any evidence was produced.
The Supreme Court created the doctrine in a 1953 decision, United States v. Reynolds, which began as a lawsuit by survivors of three civilians who had died in the crash of a military aircraft. In pretrial discovery, the plaintiffs sought the official accident report.
But the government, asserting that the report included information about the plane’s secret mission and the equipment that it was testing, refused to reveal it. The Supreme Court upheld the government, ruling that evidence should not be disclosed when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”
Mr. Masri’s lawyers argued that this decision, which the court has occasionally invoked but has not revisited, did not justify dismissing a case before any evidence was requested. Ben Wizner, Mr. Masri’s lawyer at the civil liberties union, said in an interview that the courts had permitted the doctrine to evolve from an evidentiary privilege to a broad grant of immunity, a way for the executive branch to shield itself from judicial scrutiny.
In this case, Solicitor General Paul D. Clement offered to let the justices see, “under appropriate security measures,” the classified declaration that the government filed in the lower courts to support its claim of privilege. The court evidently did not think that step was necessary.
The court will soon have other opportunities to revisit the state secrets issue. Last week the A.C.L.U. filed an appeal that raises the issue as part of a challenge to the National Security Agency’s program of wiretapping without court warrants.
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The Surveillance Law That Matters
The president is bound by the Constitution, not the whims of Congress.
WSJ
BY ROBERT F. TURNER
Wednesday, October 24, 2007 12:01 a.m. EDT
I have never met Judge Michael Mukasey, and I have no strong feelings on who should be our next attorney general. But after four decades studying and writing about national security aspects of our Constitution, I believe Congress and the American people must understand that some of the issues raised in Mr. Mukasey's confirmation hearings are far more complex than they may initially appear.
Take, for example, Sen. Pat Leahy's question to Mr. Mukasey about whether the president has the power to violate the Foreign Intelligence Surveillance Act (FISA). I know that statute well, having worked in the Senate when it was enacted in 1978, and later serving as the senior White House lawyer under President Reagan charged with overseeing the implementation of FISA and other intelligence laws.
The real issue here is not whether the president is "above the law," but rather which "law" he must see "faithfully executed" when there is a conflict between the Constitution and an inconsistent statute. His highest duty, I submit, is to the Constitution itself.
In 1803, Chief Justice John Marshall declared in Marbury v. Madison: "an act of the legislature repugnant to the Constitution is void." From the earliest days of our history until FISA was enacted, it was understood by all three branches that the Constitution had left the president (to quote Federalist No. 64) "able to manage the business of intelligence as prudence might suggest."
When Congress passed the first wiretap statute in 1968, it expressly declared that nothing in it would limit "the Constitutional power of the President" to collect foreign-intelligence information. Every administration from FDR to (and including) Jimmy Carter engaged in warrantless foreign-intelligence wiretapping in the belief that this was one of the "exceptions" to the Fourth Amendment's warrant requirement. Others include border searches and searches of commercial airline passengers and their luggage (not to mention the requirement, imposed by Congress, that citizens entering a congressional office building to exercise their constitutional right to petition their government for redress of grievances must submit to a warrantless search absent the slightest probable cause).
In 1978, Carter administration Attorney General Griffin Bell told the Senate that FISA "does not take away the power of the President under the Constitution"; but he explained that the statute could nevertheless work because President Carter was "agreeing to follow the statutory procedure." That was Mr. Carter's prerogative as it is President Bush's--but neither they nor Congress may take away the constitutional power of future presidents.
The Foreign Intelligence Surveillance Court of Review (composed of federal appeals court judges) noted, in a unanimous 2002 opinion, that every federal court to decide the issue held the president has constitutional power to authorize warrantless foreign-intelligence electronic surveillance. The opinion added: "FISA could not encroach on the President's constitutional power."
The Supreme Court has had at least six opportunities to limit presidential power in this area. In the 1967 Katz case that first required a warrant for wiretaps, the Court expressly exempted "national security" wiretaps from its holding. When it required a warrant for national security wiretaps of purely domestic targets in 1972, it exempted electronic surveillance of the "activities of foreign powers and their agents" in this country. On four other occasions it declined to hear cases on appeal where it had the opportunity to impose a warrant requirement on foreign-intelligence electronic surveillance.
Much contemporary debate over presidential claims of power to ignore "laws" fails to appreciate the modern congressional practice of enacting flagrantly unconstitutional statutes. This helps explain the increased use of presidential "signing statements" in recent decades. On June 11, 1976, Sen. Robert P. Griffin (R., Mich.) inserted a lengthy statement I'd drafted into the Congressional Record explaining why "legislative vetoes" of executive agency actions were unconstitutional. Seven years later, the Supreme Court echoed those arguments in reaching the same conclusion in the Chadha case. The congressional response? It has since enacted more than 500 new unconstitutional legislative vetoes.
Mr. Mukasey rightly promised to resign rather than violate his oath of office if the "president proposed to undertake a course of conduct that was in violation of the Constitution" and could not be dissuaded. For precisely the same reason, he was also right to refuse to be bound by unconstitutional acts of Congress like FISA that usurp presidential power. Any senator who elects to vote against him because of this issue has a duty to explain to the American people by what theory an unconstitutional statute has suddenly taken on a superior position to the Constitution itself.
Mr. Turner holds both professional and academic doctorates from the University of Virginia School of Law, where he cofounded the Center for National Security Law in 1981. He is a former three-term chairman of the American Bar Association's Standing Committee on Law and National Security.
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Second post of the morning, caveat lector its the NYTimes:
News Analysis
Mistrial Is Latest Terror Prosecution Misstep for U.S.
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By ADAM LIPTAK and LESLIE EATON
Published: October 24, 2007
There was a time when federal prosecutors would consistently win terrorism prosecutions.
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Fred R. Conrad/The New York Times
Sheik Omar Abdel Rahman, the blind cleric found guilty in 1995 of conspiring to wage war against the United States.
Related
U.S. Prosecution of Muslim Group Ends in Mistrial (October 23, 2007) From 1993 to 2001, prosecutors in Manhattan convicted some three dozen terrorists through guilty pleas and in six major trials.
Since the Sept. 11 attacks, the government’s track record has been decidedly spottier, and its failure to obtain a single conviction on Monday in its terrorism-financing prosecution of what was once the nation’s largest Islamic charity was another in a series of missteps and setbacks.
The comparisons are in some ways unfair, as the earlier prosecutions were for completed acts of violence — like the first World Trade Center attack or the 1998 bombings of American embassies in Africa — or for conspiracies that were relatively close to fruition.
The recent ones have often relied on the less colorful charge that the defendants had given “material support” to a terrorist organization. That shift is itself reflective of a conscious change in Washington’s law enforcement strategy, to prevention from punishment.
But some scholars and former prosecutors say the government should have known better than to bring some of its recent failed cases and that a lack of selectivity and judgment, along with a reliance on stale evidence and links to groups not at the core of the current threat, may be harming the effort to combat terrorism.
The pre-9/11 cases brought in Manhattan, said Peter S. Margulies, a law professor at Roger Williams University in Rhode Island, “reflected U.S. attorneys and federal prosecutors at their best, using their discretion, bringing cases when they had strong cases and declining to bring them when they were weak.”
How successful the more recent prosecutions have been depends on what is being counted. In cases trying to prove material support for terrorism, the government’s success rate is “pretty reasonable,” said Robert M. Chesney, a law professor at Wake Forest University.
From the Sept. 11 attacks to last July, the government started 108 material-support prosecutions and completed 62, according to an article by Professor Chesney that is to appear in The Lewis & Clark Law Review. Juries convicted 9 defendants, 30 defendants pleaded guilty, and 11 pleaded guilty to other charges. There were eight acquittals and four dismissals.
“They do lose sometimes,” Professor Chesney said. “But they win more often than they lose. It’s not one loss after another.”
Material-support cases are just a small fraction of what the Justice Department counts as terrorism prosecutions, and in the larger picture the government is not doing nearly as well. According to the Center on Law and Security at the New York University School of Law, the government has a 29 percent conviction rate in terrorism prosecutions overall, compared with 92 percent for felonies generally.
In the trial that ended on Monday with a mix of acquittals and deadlocks, the Holy Land Foundation and several of its officials were charged with giving money to Hamas, the militant Palestinian organization designated a terrorist group by the United States in 1995. The Federal Bureau of Investigation started looking into Holy Land in 1993.
Legal experts said it could be hard to prosecute cases in which some of the evidence was quite old. Indeed, much of the evidence had been available to prosecutors in the Clinton Justice Department, and the material support law was enacted in 1996. But those prosecutors did not pursue the matter.
“There are some of these cases that we did not push — certainly aggressively, sometimes not at all — because we were in a different mindset before 9/11,” said Andrew C. McCarthy, who led the 1995 prosecution of Sheik Omar Abdel Rahman, the blind cleric convicted of conspiring to wage war against the United States.
William Neal, a juror in the Holy Land case, complained that the government’s evidence “was pieced together over the course of a decade — a phone call this year, a message another year.”
Instead of trying to prove that the defendants knew they were supporting terrorists, Mr. Neal said, prosecutors “danced around the wire transfers by showing us videos of little kids in bomb belts and people singing about Hamas, things that didn’t directly relate to the case.”
Mr. McCarthy said he did not envy the Holy Land prosecutors. “It’s very hard,” he said, “even if your evidence is not ambiguous, to sell to a jury that they need to do something that you failed to do something about for years.”
The case was, moreover, about support for Hamas, which jurors are not likely to think poses the sort of direct threat to American security that groups like Al Qaeda do, Mr. McCarthy said.
Civil liberties groups said the Holy Land case was one in a line of misguided prosecutions. They pointed to the collapse of a case against men once accused of being part of a terrorism sleeper cell in Detroit, to the combination of acquittals and deadlocks in the trials of a Saudi student in Idaho and a Palestinian professor in Florida and to the convictions of two men on relatively minor charges in February after a three-month terrorism trial.
“You would think that juries would be eager to convict given the way these guys were painted,” said Jules Lobel, a law professor at the University of Pittsburgh and an author, with David Cole, of “Less Safe, Less Free: Why America Is Losing the War on Terror.”
Juries “are demanding strict proof” these days, said Thomas M. Melsheimer, a former federal prosecutor.
The Holy Land case, which prosecutors have promised to retry, is a particularly curious one, as the government had long ago put the group out of business, said Matthew D. Orwig, a lawyer in Dallas who was until recently United States attorney for the Eastern District of Texas.
“I think the government won when it froze the assets and shut down the organization,” Mr. Orwig said. “Then it piled a loss on top of a win because it lost the prosecution, in an arguably superfluous action.”
Leslie Eaton reported from Dallas.
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Judges vs. Jihadis
By DAVID B. RIVKIN JR. and LEE A. CASEY
November 8, 2007; Page A23
Advocates of a "law enforcement" approach to fighting transnational terror claimed vindication last week when 21 of 28 accused terrorists were convicted in Madrid. Prime Minister José Luis Rodríguez Zapatero described the Oct. 31 verdicts as "justice" and urged Spain to "look to the future." It is, of course, the future that is at issue.
Spain has every right to celebrate the capture, trial and conviction of these 21 individuals either implicated in helping to organize the March 11, 2004, train bombings in Madrid that killed 191 people, or otherwise associated with terrorism. Yet there is little reason to believe that the verdicts will have any measurable deterrent effect on jihadists, who remain determined to strike at the West's civilian populations whenever opportunity allows. Prevention remains key to defeating this threat.
Here, the justice system will be of limited utility because -- whether organized under the Civil Law (like Spain and most of Europe) or the Common Law (like the U.S.) -- it is not designed to anticipate and stop criminal behavior before it takes place. At least since the Enlightenment, Western judicial institutions have focused on dealing with society's deviants, rather than on meeting the threat of foreign attack, and have sought to prevent criminal behavior by inculcating a dread -- in the form of an individual's respect for, rather than terror of, the law.
As the great Italian legal scholar and reformer Beccaria wrote in the 1760s, to prevent crime, "make sure that men fear the laws and only the laws." Where respect fails, of course, there also is fear of punishment under the law -- deterrence. The system breaks down, however, when the criminals neither have respect for the law nor fear its potential punishments.
This is exactly the situation in which the West now finds itself. The followers of violent jihad do not respect the laws of democratic governments, but claim a superior legitimacy in the form of their own interpretation of Islam's Quran and Shariah law. Many of them also do not fear punishment. If proof of this were needed, it can be found both in the very nature of al Qaeda's Sept. 11, 2001, attacks on the U.S. by suicidal operatives, and the self-immolation of the seven ringleaders who masterminded the 2004 attacks on Madrid. When Spanish police closed in on their safe house outside that city, these men blew up the house -- and themselves.
To be sure, since 9/11 a number of European countries -- some experienced in fighting home-grown terror movements such as the IRA in Britain and the ETA in Spain -- have made their judicial systems more capable of meeting the challenge. Britain, Denmark, France, Germany, Italy, the Netherlands and Spain have all adopted new or expanded counterterrorism legislation. They've all taken one or more of the following actions: establishing or broadening the offense of terrorism to include membership in a terrorist organization; approving sometimes long pretrial detention for terror suspects; banning organizations with terrorist connections; and legalizing the use of deportation and expulsion of suspected terrorist suspects in some cases.
However, although Europe has had some notable successes in preventing terror plots -- largely through the use of national intelligence agencies -- the record of convictions has been less promising. As the U.S. State Department diplomatically concluded in its 2006 "Country Reports on Terrorism" with respect to Germany: "German laws and traditional procedures, as well as the courts' longstanding and expansive view of civil liberties, sometimes limited the success of cases prosecutors brought to trial."
Even the successful Spanish prosecutions did not include one of the individuals -- now jailed on terror charges in Italy -- believed by the government to have orchestrated the Madrid attacks. Rabei Osman, an Egyptian, was acquitted. Many March 11 victims were not satisfied with the outcome.
This, ultimately, is the problem. The criminal justice system is not infinitely elastic. It can be changed only so much before it becomes unrecognizable. Although the Civil Law system is marginally better suited than the Common Law system for antiterror prosecutions -- permitting more closed proceedings and less technically demanding evidentiary standards -- both are built upon the assumption that it is better to let the guilty go free than to convict the innocent.
That is an appropriate balance when a society is dealing with its own reprobates. It is not so obviously correct when the threat is a foreign movement whose purpose is to cause death and destruction on a grand scale.
If further proof were needed of the judicial system's inability to bear the primary burden of meeting (and defeating) transnational terror, it could be found in the scenes last Wednesday in Madrid. When the judge's decisions were handed down, the courthouse was surrounded by security forces -- including helicopters buzzing protectively around the building. Courts do not make good fortresses.
It's likely that these very limitations, at least in part, prompted the Bush administration to eschew a policing response to the 9/11 attacks, and to declare a war against terror. The result has been one of the sharpest trans-Atlantic divisions in postwar history, a division that probably will not end anytime soon. Regardless of whether the next American president is a Democrat or Republican, he or she is likely to continue the war on terror in practice, if not in rhetoric.
Only the law of armed conflict permits the flexibility needed to disrupt al Qaeda's operations on an international level. Had the Bush administration followed a law-enforcement path, and sought the judicial assistance of Afghanistan's Taliban, Osama bin Laden would still be secure in his bases and training facilities, far more capable of planning and executing future attacks.
Al Qaeda and its allies believe that they are at war with the West and have acted on that belief. Even with the best intentions, the West cannot prevail by ignoring this stark and unbending fact.
Messrs. Rivkin and Casey served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush, and were members of the U.N. Sub-Commission on the Promotion and Protection of Human Rights from 2004-2006.
WSJ
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Washington Protects the Terror Masters
by Daniel Pipes
Jerusalem Post
November 15, 2007
http://www.danielpipes.org/article/5124
[JP title: Washington's conflicting signals]
The Bush administration's counterterrorism policies appear tough, but inside the courtroom, they evaporate, consistently favoring not American terror victims, but foreign terrorists.
Consider a civil lawsuit arising from a September 1997 suicide bombing in Jerusalem. Hamas claimed credit for five dead and 192 wounded, including several Americans. On the grounds that the Islamic Republic of Iran had financed Hamas, five injured Americans students sued it for damages.
Expert testimony established the regime's culpability during a four-day trial, leading Judge Ricardo M. Urbina, under the Flatow Amendment of the Foreign Sovereign Immunities Act, to fine the Iranian government and its Revolutionary Guard Corps US$251 million in compensatory and punitive damages.
The plaintiffs looked for Iranian government assets in the United States to seize, in accord with the little-known section, 201a of the Terrorism Risk Insurance Act of 2002, which states that "Notwithstanding any other provision of law … in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism … the blocked assets of that terrorist party … shall be subject to execution."
An ancient Iranian fragment similar to the ones in legal dispute in a terrorism case.
Finding Iranian assets, however, proved no easy task, as most of them had been withdrawn by the Iranian authorities after the embassy hostage crisis of 1979-81. Therefore, the victims' lead lawyer, David Strachman of Providence, R.I., devised some creative approaches, such as intercepting the imminent return of ancient Iranian clay tablets on loan to the University of Chicago for up to seventy years.
Strachman found just one significant cache of Iranian government money: approximately $150,000 at the Bank of New York, in an account belonging to Bank Melli, Iran's largest bank and a fully-owned subsidiary of the regime. However, when the plaintiffs sued for these funds, BoNY filed a federal lawsuit asking for a legal determination what to do with its Bank Melli assets.
The victims' task in this case may have appeared easy, given that the U.S. government (1) views Bank Melli as an "wholly-owned instrumentality" of the Iranian government and it (2) considers that government a "terrorist party."
But no, the U.S. Department of Justice "entered this case as amicus curiae in support of Bank Melli." It did so, explained a spokeswoman for the Treasury Department, "to vindicate a correct reading" of the U.S. regulation. Its amicus brief appears decisively to have influenced the trial judge, Denise Cote, who adopted the joint Bank Melli-Justice Department position in toto and ruled in March 2006 against the funds being awarded to the victims. The latter appealed to the Second Circuit Court, but it too sided with the Justice Department, dismissing the suit in April 2007.
Its funds then in the clear, Bank Melli immediately removed them all from BoNY and transferred them beyond U.S. jurisdiction.
The story does not end there. On October 25, the State Department announced that Bank Melli would henceforth be cut off from the U.S. financial system because it "provides banking services to entities involved in Iran's nuclear and ballistic missile programs" by facilitating "numerous purchases of sensitive materials." Further, it found that Bank Melli "was used to send at least $100 million" to Iran's terrorist fronts, including those which had trained the Hamas members who perpetrated the 1997 Jerusalem bombing.
This incompetent outrage – Washington first helping Bank Melli, then sanctioning it – fits a larger pattern of federal agencies advocating in court on behalf of terrorists.
Justice tried to shield Tehran from victims' claims in the University of Chicago case.
It opposed the attachment of a mere $10,000 of Iranian funds to one 1997 victim family; and, when the family won in district court, it appealed the verdict.
It interceded in Ungar v. Hamas to prevent the orphaned victims' attachment of $5 million belonging to the Holy Land Foundation, a Texas organization prosecuted as a Hamas front.
In Ungar v. PLO and PA, the State Department rescued the Palestine Liberation Organization when the Ungars tried to enforce their $116 million judgment against a PLO-owned office building in Manhattan.
Is there not something deeply flawed about the U.S. government consistently siding with terrorists and, according to Strachman, "never once supporting terrorism victims to collect their judgments in court"? One hopes it will not require a new terrorist catastrophe to fix these misguided policies.
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Other items in category Terrorism
Other items in category US policy
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Gitmo Goes to Court
The judiciary has no business managing how we fight wars abroad.
BY DAVID B. RIVKIN JR. AND LEE A. CASEY
Thursday, December 6, 2007 12:01 a.m. EST
The Supreme Court heard a spirited argument yesterday on whether foreign enemies, captured and held overseas, are entitled to the protections of the United States Constitution. Since the founding of our republic, the answer to that question has always been an unequivocal "No."
If, after hearing Boumedienne v. Bush, the court makes up new rules, it will mark an unprecedented expansion of judicial power into areas--the conduct of foreign affairs and war making--the Constitution reserves to the president and Congress, the elected representatives of the American people. The Boumedienne case is as much about the Supreme Court's willingness to constrain its own power as it is about detainee rights.
This latest challenge to the Bush administration's war policies was brought by enemy combatants held at the Guantanamo Bay Naval Station, who claim the right to a habeas corpus hearing--to determine the legality of their detention--before the federal courts. Congress attempted to foreclose such claims in 2005, when it passed the Detainee Treatment Act (DTA), creating an elaborate administrative process through which detainees can contest their classification as "enemy combatants," with an appeal to the U.S. Court of Appeals in Washington, D.C., and the Supreme Court. All other federal court jurisdiction was withdrawn at that time.
Nevertheless, because the Supreme Court wanted to clarify that the new system applied to pending, as well as future, cases, the court permitted these challenges to go forward in its 2006 decision in Hamdan v. Rumsfeld. Congress responded immediately, passing the Military Commissions Act (MCA) and overruling Hamdan.
The MCA established a system of military tribunals to try the Guantanamo detainees, again with appeals to the U.S. Court of Appeals in Washington, D.C., and the Supreme Court. The law also stated with remarkable clarity that these procedures excluded all other judicial review for detainee claims, past, present and future. As one judge wrote in dismissing Mr. Boumedienne's case after the MCA was enacted--"it is almost as if the [congressional] proponents of these words were slamming their fists on the table shouting 'When we say 'all,' we mean all--without exception.'"
Last April, the Supreme Court appeared to agree, refusing to revive the appeals. Unfortunately, it changed its mind in June, agreeing to consider whether Congress can constitutionally refuse the Guantanamo detainees--who are not U.S. citizens or held on U.S. territory--access to habeas corpus rights. This is not a close question. When the framers adopted the Constitution to "secure the Blessings of Liberty to ourselves and our Posterity" they were not talking about enemy aliens overseas engaged in a war against the republic they founded.
That, certainly, was the Supreme Court's conclusion in Johnson v. Eisentrager (1950), which involved similar claims by Germans arrested by U.S. forces in China, and then imprisoned in occupied Germany. Their habeas claims were rightly rebuffed.
As Justice Robert Jackson wrote for the court, "Such extraterritorial application of organic law [the Constitution] would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment." Such a rule would, indeed, have been bizarre--handicapping the U.S. in its foreign relations and putting it at a permanent disadvantage compared to every other country on earth.
That was true in 1950, and it remains true today. To grant constitutional rights to the Guantanamo detainees, the Supreme Court must ignore its own settled precedent--on which the president and Congress were entitled to rely--and rewrite the Constitution itself.
The consequences would be disastrous. Such a decision would bring judges to the battlefield. As Justice Jackson warned, permitting foreign enemies to haul American officials into court "would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home."
Because the Constitution does not apply to foreigners overseas, the procedural rights accorded to the Guantanamo detainees are a matter exclusively for the political branches. Subjecting them to constitutional scrutiny would overstep the judiciary's legitimate power, making it the ultimate arbiter of U.S. foreign policy. Moreover, if the court were to grant constitutionally based habeas rights to aliens overseas, there is no principled means of avoiding extension of the entire Constitution anywhere in the world where U.S. forces (or officials) may go.
For the first time in American history, an entire panoply of the federal government's overseas actions directed at foreigners, including surveillance and even use of deadly force, would become subject to constitutional strictures. This would transform the U.S. into a Gulliver, bound by its own judicial strings, on the international stage.
The Constitution grants the Supreme Court a limited original jurisdiction, and leaves Congress free to define its appellate authority and the judicial power of the lower federal courts. Here, Congress has determined that detainees will have certain administrative means of challenging their detention, and a review by the D.C. Circuit and Supreme Court. That is all Congress deemed appropriate here--and, needless to say, this is more than other captured enemy combatants have received in the past.
Even if habeas corpus applied--and there is no precedent for its application (either in British or American practice) to foreigners held overseas--the processes established by Congress in the DTA and MCA would constitute an adequate substitute. The Supreme Court has long recognized that, even with respect to Americans held in the U.S., habeas review is limited in scope. If focuses on questions of law rather than a detailed analysis of the factual record. Many different procedures are sufficient to meet any constitutional habeas requirement.
In these cases, the factual inquiry detainees are accorded under the Pentagon's "combatant status review tribunals" are an adequate substitute for habeas. They are modeled on the review legitimate prisoners of war would receive under the Geneva Conventions in accordance with the Supreme Court's 2004 decision in Hamdi v. Rumsfeld, and linked with the right of appeal to the D.C. Circuit and Supreme Court on procedural and constitutional standards. This fact alone is more than sufficient for the court to uphold the MCA, without ever reaching the underlying constitutional issues involved. Justice Anthony Kennedy--a potential decisive vote in this case--seemed sympathetic to this argument.
After years of public debate, with many of the key issues playing a prominent role in the presidential and congressional elections, Congress and the president have created a system that allows enemy combatants to challenge their detention, and to achieve a limited judicial review in U.S. courts. This is sufficient. The Supreme Court should not reject the law merely because it might disagree with the policy results adopted by the elected branches of government.
The court has already meddled more in this area in the last several years than in all of prior history. It has no right to demand more.
Messrs. Rivkin and Casey served in the U.S. Justice Department under Presidents Ronald Reagan and George H.W. Bush.
WSJ
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Terrorist Tort Travesty
By JOHN YOO
January 19, 2008; Page A13
War is a continuation of politics by other means, the German strategist Carl von Clausewitz famously observed in his 19th-century treatise, "On War." Clausewitz surely could never have imagined that politics, pursued through our own courts, would be the continuation of war.
Last week, I (a former Bush administration official) was sued by José Padilla -- a 37-year-old al Qaeda operative convicted last summer of setting up a terrorist cell in Miami. Padilla wants a declaration that his detention by the U.S. government was unconstitutional, $1 in damages, and all of the fees charged by his own attorneys.
José Padilla
The lawsuit by Padilla and his Yale Law School lawyers is an effort to open another front against U.S. anti-terrorism policies. If he succeeds, it won't be long before opponents of the war on terror use the courtroom to reverse the wartime measures needed to defeat those responsible for killing 3,000 Americans on 9/11.
On Thursday, a federal judge moved closer to sentencing Padilla to life in prison. After being recruited by al Qaeda agents in the late 1990s, Padilla left for Egypt in 1998 and reached terrorist training camps in Afghanistan in 2000. American officials stopped him at Chicago O'Hare airport in 2002, based on intelligence gained from captured al Qaeda leaders that he was plotting a dirty bomb attack.
President Bush declared Padilla an enemy combatant and ordered him sent to a naval brig in South Carolina. After a federal appeals court rejected Padilla's plea for release, the government transferred him to Miami for trial for al Qaeda conspiracies unrelated to the dirty bomb plot. Federal prosecutors described Padilla as "a trained al-Qaeda killer," and a jury convicted him of conspiring to commit murder, kidnapping and maiming, and of providing material support to terrorists.
Now Padilla and his lawyers are trying to use our own courts to attack the government officials who stopped him. They claim that the government cannot detain Padilla as an enemy combatant, but instead can only hold and try him as a criminal. Padilla alleges that he was abused in military custody -- based primarily on his claim that he was held in isolation and not allowed to meet with lawyers.
But enemy prisoners in wartime never before received the right to counsel or a civilian trial because, as the Supreme Court observed in 2004, the purpose of detention is not to punish, but to prevent the enemy from returning to the fight.
Under Padilla's theory, the U.S. is not at war, so any citizen killed or captured by the CIA or the military can sue. In November 2002, according to press reports, a Predator drone killed two al Qaeda leaders driving in the Yemen desert. One was an American, Kamal Derwish, who was suspected of leading a terrorist cell near Buffalo. If Padilla's lawsuit were to prevail, Derwish's survivors could sue everyone up the chain of command -- from the agent who pressed the button, personally -- for damages.
Padilla's complaints mirror the left's campaign against the war. To them, the 9/11 attacks did not start a war, but instead were simply a catastrophe, like a crime or even a natural disaster. They would limit the U.S. response only to criminal law enforcement managed by courts, not the military. Every terrorist captured away from the Afghanistan battlefield would have the right to counsel, Miranda warnings, and a criminal trial that could force the government to reveal its vital intelligence secrets.
America used this approach in the 1990s with al Qaeda. It did not work. Both the executive and legislative branches rejected this failed strategy. In the first week after 9/11, Congress passed a law authorizing the use of military force against any person, group or nation connected to the attacks, and recognized the President's constitutional authority "to deter and prevent acts of international terrorism against the United States."
In the spring of 2002, I was a Justice Department lawyer asked about the legality of Padilla's detention. There is ample constitutional precedent to support the detention of a suspected al Qaeda agent, even an American citizen, who plans to carry out terrorist attacks on our soil. During World War II, eight Nazi saboteurs secretly landed in New York to attack factories and plants. Two of them were American citizens.
After their capture, FDR sent them to military detention, where they were tried and most of them executed. In Ex Parte Quirin, the Supreme Court upheld the detention and trial by military authorities of American citizens who "associate" with "the military arm of the enemy" and "enter this country bent on hostile acts." If FDR were president today, Padilla might have fared far worse than he has.
None of that matters to the anti-war left. They failed to beat President Bush in the 2004 elections. Their efforts in Congress to repeal the administration's policies have gone nowhere. They lost their court challenges to Padilla's detention. The American public did not buy their argument that the struggle against al Qaeda is not really a war.
So instead they have turned to the tort system to harass those who served their government in wartime. I am not the only target. The war's critics have sued personally Donald Rumsfeld, John Ashcroft, Robert Gates, Paul Wolfowitz and other top government officials for their decisions in the war on terrorism. Other lawsuits have resorted to the courts to attack the telecommunications companies that helped the government intercept suspected terrorist calls.
It is easy to understand why CIA agents, who are working on the front lines to protect the nation from attack, are so concerned about their legal liability that they have taken out insurance against lawsuits.
Worrying about personal liability will distort the thinking of federal officials, who should be focusing on the costs and benefits of their decisions to the nation as a whole, not to their own pockets. Even in the wake of Watergate, the Supreme Court recognized that government decisions should not be governed by the tort bar.
In a case about warrantless national security wiretaps ordered by Nixon's attorney general, John Mitchell, the court declared that executive branch officials should benefit from qualified immunity. Officials cannot be sued personally unless they had intentionally violated someone's clearly established constitutional rights.
The Padilla case shows that qualified immunity is not enough. Even though Supreme Court precedent clearly permitted Padilla's detention, he and his academic supporters can still file harassing lawsuits that promise high attorneys' fees. The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box.
The prospect of having to waste large sums of money on lawyers will deter talented people from entering public service, leading to more mediocrity in our bureaucracies. It will also lead to a risk-averse government that doesn't innovate or think creatively. Government by lawsuit is no way to run, or win, a war.
Mr. Yoo is a professor of law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. He is the author of "War By Other Means" (Grove/Atlantic 2006).
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If the dems win the white house and end the war against the global jihad, my only hope is that the blue states bear the brunt of the CONUS attacks. I'm sure in the aftermath, it'll all be Bush's fault somehow. Maybe after they have to sweep up body parts in the bay area, they'll find a new support for the military and law enforcement. No, probably not....
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Listening to the Enemy
By ROGER PILON
January 28, 2008; Page A15
Today the Senate takes up a bipartisan surveillance authorization measure that's already passed the Intelligence Committee. The clock is ticking. This Friday a temporary law called the Protect America Act will expire. If Congress does not act before then, the president's statutory power to prevent terrorist attacks will be seriously compromised.
This dangerous situation should never have arisen. From the beginning, presidents have exercised their Article II executive power to gather foreign intelligence -- in war and peace alike, without congressional or judicial intrusion. As our principal agent in foreign affairs, the president is constitutionally bound to protect the nation. For that, intelligence is essential.
Intelligence is essential on the domestic side as well, where law enforcement is the president's main function. Yet not until 1967 did the Supreme Court require warrants for electronic surveillance. Congress codified that a year later. But both the court and Congress expressly exempted foreign-intelligence gathering from the warrant requirement.
Unfortunately, the exception was not to last. Following the Vietnam War, Congress increasingly inserted itself into foreign affairs, as with the 1973 War Powers Act. With the Foreign Intelligence Surveillance Act, passed in 1978, Congress began micromanaging foreign intelligence gathering. That produced the "wall" between foreign and domestic intelligence gathering -- with foreign-intelligence agents focused on security, and domestic agents on prosecution and hence on obtaining "admissible" evidence. Neither side talked to the other. Many believe the resulting communications failures played a role in 9/11.
In the aftermath of 9/11, believing FISA to be hopelessly inadequate, President Bush instituted his terrorist surveillance program (TSP) -- but not before advising key members of Congress. Nevertheless, a firestorm ensued when the New York Times made the program public in December 2005. The controversy continued until January 2007, when the White House announced that henceforth it would gather intelligence under FISA's antiquated restrictions.
Cooler heads in Congress grew concerned after Director of National Intelligence Michael McConnell testified in July that "we're actually missing a significant portion of [the intelligence] we should be getting." That led to last August's six-month fix, which expires this week.
Obviously, this is no way to conduct the serious business of foreign intelligence. The ever-changing rules -- criminalizing transgressions -- leave officials playing it safe in a world of risks.
The Senate bill would be an improvement, not least because it provides retroactive liability protection for telecom companies that allegedly assisted the government after 9/11. But the deeper problem is the very idea of congressional micromanagement.
The Senate bill would require showing probable cause before targeting even U.S. persons abroad, dramatically increasing the role of the FISA court. As Judge Richard Posner wrote on this page two years ago, FISA may be valuable for monitoring communications of known terrorists, "but it is hopeless as a framework for detecting terrorists. It requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist."
The technical impediments to legislating are even greater. We're long past alligator clips on copper wires. Today, electronic communication is broken into discrete packets that travel along independent routes before being reassembled. As K.A. Taipale, executive director of the Center for Advanced Studies in Science and Technology Policy, has written, "even targeting a specific message from a known sender requires intercepting (i.e., scanning and filtering) the entire communication flow." Yet the Senate bill requires that intelligence analysts count the people in the U.S. whose communications were "reviewed," an all but impossible distraction for analysts already stretched.
Privacy concerns are not trivial. The Constitution protects against "unreasonable" searches. But even with law enforcement, where the main function is ex post prosecution, not ex ante protection, there are numerous exceptions to the Fourth Amendment's warrant requirement. Yet Congress insists still on micromanaging the president -- and he, by failing to assert his authority early on, is now reduced to bargaining with Congress over minutia that will soon be as obsolete and dangerous as the underlying act is today.
John Locke, no sometime civil libertarian, put it well when he observed that the foreign affairs power "is much less capable to be directed by antecedent, standing, positive Laws, than [by] the Executive." The Federalist's authors, James Madison, Alexander Hamilton and John Jay, all agreed. The remedy for executive incompetence or recklessness in foreign affairs is political -- not legislative, much less legal. Congress, to say nothing of the courts, can no more manage such affairs than it can the economy. What better evidence than these surveillance fits and starts?
Mr. Pilon holds the Cato Institute's B. Kenneth Simon Chair in Constitutional Studies.
WSJ
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KSM, the Victim
February 16, 2008; Page A10
WSJ
On Monday, some six years after 9/11, military prosecutors filed charges against Khalid Sheikh Mohammed, al Qaeda's foreign-operations chief, along with five of his conspirators. They will stand before a military tribunal, and if convicted they could face execution. And as if to prove that the U.S. has lost its seriousness and every sense of proportion, now we are told not that KSM is a killer, but a victim.
The victim, supposedly, of President Bush. Opponents of military commissions (including Barack Obama) want KSM & Co. turned over to the regular civilian courts, or at least to military courts-martial; anything else is said to abridge American freedoms. This attitude is either disingenuous or naïve, or both, because it is tenable only by discounting the nature of the attacks and the enemies who carried them out.
* * *
KSM himself has made plain the extent and ambition of his world war. "I was responsible for the 9/11 operation, from A to Z," he admitted during a hearing in March last year. He planned the 1993 World Trade Center attack, the 2002 bombings of the Bali nightclubs and the Kenya hotel, among 31 actual attacks. KSM was an architect of the Bojinka plot in 1995; by his own confession he drew up plans for strikes in South Korea, Thailand, Indonesia, the Philippines, Panama, Israel, Brussels and London, plus a "new wave" of post-9/11 attacks on L.A., Seattle, Chicago and New York.
These are not ordinary crimes. "For sure, I'm American enemies," said KSM in his broken English. "When we made any war against America we are jackals fighting in the nights. . . . the language of the war are killing." The proper venue to address his mass crimes against humanity is not some civilian jurisdiction. Terror cases committed as acts of war, by their very nature, require a separate judicial process.
The U.S. effort to bring it about was long delayed by legal challenges. Yet with the Constitutional guidance of the Supreme Court's Hamdan decision, Congress and the President established a deliberate framework for prosecuting "unlawful enemy combatants" in the 2006 Military Commissions Act.
Yet now anti-antiterror activists are attempting to make the process a referendum on the Bush Presidency or "torture" or whatever. Purportedly the tribunals are illegitimate because they do not afford every last Miranda right or due-process safeguard of the civilian courts. The key and appropriate distinction is that foreign terrorists are not entitled to the protections of the U.S. Constitution. They also violated the laws of war -- for example, by deliberately targeting civilians. International law has always held that such people deserve fewer legal protections, much less those of civilian defendants.
HOT TOPIC
• Torture a Likely Focus at TrialStill, it's no exaggeration to say these war tribunals will be the most due-process-minded war tribunals in history. The procedures are nearly identical to those of a court-martial, with small differences for rules on secrecy and evidence. To avoid compromising intelligence sources and methods, and given the national-security interests, some tradeoffs were necessary. What's notable is how fine those distinctions are. Even liberal darlings like the International Criminal Tribunal for Yugoslavia are more severe, allowing prosecutors to pack the pretrial factual record or to have ex parte contact with judges.
By contrast, terror detainees have rights approximating habeas corpus and can challenge their incarceration, including judicial review by the D.C. Circuit Court of Appeals and Supreme Court. Critics yowl about the admissibility of "hearsay," but civilian jurisprudence is loaded with exemptions for second-hand material -- as any first-year law student will attest. The relevant point is that in terror cases it may be necessary to shield sources and tactics, or allow for evidence gathered under battlefield conditions.
Another point of controversy is that defendants may be barred from seeing all the evidence against them. But their government-appointed defense lawyers, with security clearances, can; and in any case, the detainees will be given access to declassified summaries of such evidence.
The most preposterous canard is that the tribunals are tainted because some terrorists were subjected to coercive interrogation techniques while in CIA custody. But a total of three -- KSM being the only one yet charged -- were waterboarded. It was conducted not to extract a confession but in the immediate aftermath of 9/11 when further attacks seemed likely and intelligence about al Qaeda's operations was limited. CIA Director Michael Hayden recently testified that these interrogations saved American lives.
Though allegedly coerced testimony might potentially be admitted under the Military Commissions Act, the Pentagon took the extra step of using "clean teams" to rebuild the cases. Not that it matters: Like KSM, most of the 9/11 conspirators happily boast of their atrocities.
* * *
Whether they intend it or not, KSM's victimologists are dupes in his campaign to undermine the antiterror enterprise. They also risk tearing down the firewall between national security and the civilian courts, where Constitutional principles could easily bend after some future attack to the gravity of national self-defense.
The proceedings are likely to be transparent, with only a limited portion closed to observers. It is true that this could become a forum for claims of childhood trauma, or a platform for grievances against the U.S., as with Zacarias Moussaoui; they also could degenerate into a media carnival. But that has more or less already happened. One virtue of public proceedings is to show that the U.S. is not conducting the Star Chambers of liberal caricature. Another is to reveal the ideology that irrigates al Qaeda's violence.
The ultimate purpose of the tribunals is to administer justice. It is a strange worldview that considers such tribunals and the death penalty inappropriate for the murders of 2,972 people in New York, Virginia and Pennsylvania, and hundreds more world-wide. A society that would not tender justice to a human butcher like KSM is not serious about defending itself.
See all of today's editorials and op-eds, plus video commentary, on Opinion Journal.
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Islamic Charities Draw More Scrutiny
By GLENN R. SIMPSON
February 23, 2008; Page A4
Counterterrorism officials in the U.S. and the Middle East, who in recent years have shut down several Islamic charities accused of financing terrorist organizations, now are pursuing what they describe as a second constellation of such groups.
Key figures who avoided the initial legal dragnet in 2001 and 2002 have continued to raise funds that help Islamic militants in the Palestinian territories, Iraq and other conflict areas, counterterrorism officials in Washington and the Middle East said in recent interviews. The officials said Islamic fund-raisers have taken donor files and moved from one group to another a step ahead of the authorities, officials said.
• The News: Counterterrorism officials who shut down Islamic charities that they accused of funding terrorist organizations are targeting a second group of charities.
• The Background: Officials say Islamic fund-raisers have taken donor files and moved from one group to another, remaining a step ahead of authorities.
• The Controversy: Over the last six years, little evidence has emerged directly connecting charities to individual acts of terrorism."Government can come in and close down the charity, but the donor list still exists," said prosecutor Pat Roane, the Justice Department's point man on terrorism financing. "The donor list is gold."
Islamic charities became a major focus after the Sept. 11, 2001, terrorist attacks, when U.S. officials concluded the charities played a large role in sustaining the infrastructure of radical Islamic groups. Using a set of new laws, the U.S. Treasury froze the assets of numerous groups in the U.S. and overseas.
But over the last six years little evidence has emerged directly connecting charities to individual acts of terrorism, and Muslim leaders and civil libertarians have charged that the government is over-reaching in pursuing the charities.
Questions about the government's approach arose particularly after prosecutors failed in some high-profile trials to prove that charities were connected to terrorists or terrorist organizations. The charities' leaders and their supporters say they send money from American Muslims to legitimate social and aid organizations in the Middle East.
One scholar, Ibrahim Warde of the Fletcher School of Law and Diplomacy, argues in a 2007 book, "The Price of Fear," that the connection between charities and terrorism is largely a myth.
Government officials, while acknowledging that charities' role in individual attacks seems to be slight, say evidence from several of the criminal cases have demonstrated direct ties between charities and terrorist groups, including al Qaeda and its affiliates.
Kenneth Wainstein, the Justice Department national-security chief, said in an interview that intelligence reports continue to find that charities are being used by terrorist groups to provide both funds and logistics help, such as with visas and work permits in conflict zones. Mr. Wainstein and other officials say many of an estimated six million Muslims in the U.S. follow the tenets of their faith and give generously to charities that promote Islam and provide welfare to needy Muslims in places like Afghanistan and Iraq, but the funds often are diverted to other purposes in these war zones to underwrite items such as communications, logistics and medicine for groups fighting the U.S. military or U.S. allies.
In the years after Sept. 11, the Justice Department now alleges, fund-raising efforts in the U.S. shifted to at least two existing groups that were missed in the initial sweep: a charity in Boston called Care International, and another in Columbia, Mo., called the Islamic American Relief Agency. Care International's officers were recently convicted of tax fraud in Boston federal court, while backers of the Missouri group are under indictment for similar offenses. In the Care International case, prosecutors presented evidence that the group was an extension of Osama bin Laden's original outpost in the U.S., a Brooklyn-based Islamic organization. But Mr. Warde criticized prosecutors for not charging any of the defendants with terrorism support. The Care International officers are expected to appeal.
A month after the government shut down many top charities in December 2001, Islamic fund-raisers set up a new group in Toledo, Ohio, called Kindhearts, which the Treasury in 2006 shut down and identified in a public statement as "the progeny of Holy Land Foundation and Global Relief Foundation," two defunct charities that the U.S. designated as supporters of terrorism. Two other charities, Kinder USA and Life for Relief and Development, remain under investigation but have denied any ties to terrorism.
Terrorism investigators say Islamic charity fund-raisers are more sophisticated than they originally realized. Khalil Jassemm, the founder of one group under investigation, self-published a 494-page guide to running such groups -- "Islamic Perspective on Charity, a Comprehensive Guide for Running a Muslim Nonprofit In the U.S." -- that walks charity officials through the numerous laws governing such groups. The book was made available by The Investigative Project, a Washington nonprofit that researches terrorism issues.
Mr. Jassemm founded Life for Relief and Development. Terrorism investigators say some of its personnel are supporters of the Islamic Party of Iraq and in 2006 was raided by the FBI in Michigan and by the U.S. military in Iraq. A spokesman for the charity said Mr. Jassemm has left the group and now lives in Jordan. He didn't respond to an email request for a meeting. The group says it isn't affiliated with any political groups in Iraq.
Officials say the moves against the organizations have aroused anger and opposition among many American Muslims and some civil-liberties advocates -- creating what counterterrorism officials acknowledge is a public-relations problem.
For one thing, critics have chided the government for keeping much of its evidence of terrorist connections secret and resorting to nonterrorism charges, such as tax and money-laundering violations, to put the leaders of some charities out of business.
Prosecutors say, though, that they won't abandon tactics that have brought results. "We incapacitate the bad guys," said Justice's Mr. Wainstein. "It might not be the sexiest way of doing it, and if we get criticized, so be it."
One big problem, some front-line prosecutors said, is that intelligence can show signs of terrorism support, but it is difficult to obtain the kind of unambiguous evidence that will stand up in court to prove money ended up with terrorists overseas. "Once it hits a foreign bank, it is gone to us," said one federal prosecutor who asked not to be named.
Write to Glenn R. Simpson at glenn.simpson@wsj.com
wsj
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NSA's Domestic Spying Grows
As Agency Sweeps Up Data
Terror Fight Blurs
Line Over Domain;
Tracking Email
By SIOBHAN GORMAN
March 10, 2008; Page A1
WASHINGTON, D.C. -- Five years ago, Congress killed an experimental Pentagon antiterrorism program meant to vacuum up electronic data about people in the U.S. to search for suspicious patterns. Opponents called it too broad an intrusion on Americans' privacy, even after the Sept. 11 terrorist attacks.
But the data-sifting effort didn't disappear. The National Security Agency, once confined to foreign surveillance, has been building essentially the same system.
The central role the NSA has come to occupy in domestic intelligence gathering has never been publicly disclosed. But an inquiry reveals that its efforts have evolved to reach more broadly into data about people's communications, travel and finances in the U.S. than the domestic surveillance programs brought to light since the 2001 terrorist attacks.
Congress now is hotly debating domestic spying powers under the main law governing U.S. surveillance aimed at foreign threats. An expansion of those powers expired last month and awaits renewal, which could be voted on in the House of Representatives this week. The biggest point of contention over the law, the Foreign Intelligence Surveillance Act, is whether telecommunications and other companies should be made immune from liability for assisting government surveillance.
Largely missing from the public discussion is the role of the highly secretive NSA in analyzing that data, collected through little-known arrangements that can blur the lines between domestic and foreign intelligence gathering. Supporters say the NSA is serving as a key bulwark against foreign terrorists and that it would be reckless to constrain the agency's mission. The NSA says it is scrupulously following all applicable laws and that it keeps Congress fully informed of its activities.
According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called "transactional" data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA's own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge's approval when a link to al Qaeda is suspected.
The NSA's enterprise involves a cluster of powerful intelligence-gathering programs, all of which sparked civil-liberties complaints when they came to light. They include a Federal Bureau of Investigation program to track telecommunications data once known as Carnivore, now called the Digital Collection System, and a U.S. arrangement with the world's main international banking clearinghouse to track money movements.
The effort also ties into data from an ad-hoc collection of so-called "black programs" whose existence is undisclosed, the current and former officials say. Many of the programs in various agencies began years before the 9/11 attacks but have since been given greater reach. Among them, current and former intelligence officials say, is a longstanding Treasury Department program to collect individual financial data including wire transfers and credit-card transactions.
It isn't clear how many of the different kinds of data are combined and analyzed together in one database by the NSA. An intelligence official said the agency's work links to about a dozen antiterror programs in all.
A number of NSA employees have expressed concerns that the agency may be overstepping its authority by veering into domestic surveillance. And the constitutional question of whether the government can examine such a large array of information without violating an individual's reasonable expectation of privacy "has never really been resolved," said Suzanne Spaulding, a national-security lawyer who has worked for both parties on Capitol Hill.
NSA officials say the agency's own investigations remain focused only on foreign threats, but it's increasingly difficult to distinguish between domestic and international communications in a digital era, so they need to sweep up more information.
The Fourth Amendment
In response to the Sept. 11 attacks, then NSA-chief Gen. Michael Hayden has said he used his authority to expand the NSA's capabilities under a 1981 executive order governing the agency. Another presidential order issued shortly after the attacks, the text of which is classified, opened the door for the NSA to incorporate more domestic data in its searches, one senior intelligence official said.
The NSA "strictly follows laws and regulations designed to preserve every American's privacy rights under the Fourth Amendment to the U.S. Constitution," agency spokeswoman Judith Emmel said in a statement, referring to the protection against unreasonable searches and seizures. The Office of the Director of National Intelligence, which oversees the NSA in conjunction with the Pentagon, added in a statement that intelligence agencies operate "within an extensive legal and policy framework" and inform Congress of their activities "as required by the law." It pointed out that the 9/11 Commission recommended in 2004 that intelligence agencies analyze "all relevant sources of information" and share their databases.
Two former officials familiar with the data-sifting efforts said they work by starting with some sort of lead, like a phone number or Internet address. In partnership with the FBI, the systems then can track all domestic and foreign transactions of people associated with that item -- and then the people who associated with them, and so on, casting a gradually wider net. An intelligence official described more of a rapid-response effect: If a person suspected of terrorist connections is believed to be in a U.S. city -- for instance, Detroit, a community with a high concentration of Muslim Americans -- the government's spy systems may be directed to collect and analyze all electronic communications into and out of the city.
The haul can include records of phone calls, email headers and destinations, data on financial transactions and records of Internet browsing. The system also would collect information about other people, including those in the U.S., who communicated with people in Detroit.
The information doesn't generally include the contents of conversations or emails. But it can give such transactional information as a cellphone's location, whom a person is calling, and what Web sites he or she is visiting. For an email, the data haul can include the identities of the sender and recipient and the subject line, but not the content of the message.
Intelligence agencies have used administrative subpoenas issued by the FBI -- which don't need a judge's signature -- to collect and analyze such data, current and former intelligence officials said. If that data provided "reasonable suspicion" that a person, whether foreign or from the U.S., was linked to al Qaeda, intelligence officers could eavesdrop under the NSA's Terrorist Surveillance Program.
The White House wants to give companies that assist government surveillance immunity from lawsuits alleging an invasion of privacy, but Democrats in Congress have been blocking it. The Terrorist Surveillance Program has spurred 38 lawsuits against companies. Current and former intelligence officials say telecom companies' concern comes chiefly because they are giving the government unlimited access to a copy of the flow of communications, through a network of switches at U.S. telecommunications hubs that duplicate all the data running through it. It isn't clear whether the government or telecom companies control the switches, but companies process some of the data for the NSA, the current and former officials say.
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Still think the 'Patriot Act' is about terrorism?
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When Congress passed the Patriot Act in the aftermath of the 9/11 attacks, law-enforcement agencies hailed it as a powerful tool to help track down the confederates of Osama bin Laden. No one expected it would end up helping to snag the likes of Eliot Spitzer. The odd connection between the antiterror law and Spitzer's trysts with call girls illustrates how laws enacted for one purpose often end up being used very differently once they're on the books.
The Patriot Act gave the FBI new powers to snoop on suspected terrorists. In the fine print were provisions that gave the Treasury Department authority to demand more information from banks about their customers' financial transactions. Congress wanted to help the Feds identify terrorist money launderers. But Treasury went further. It issued stringent new regulations that required banks themselves to look for unusual transactions (such as odd patterns of cash withdrawals or wire transfers) and submit SARs—Suspicious Activity Reports—to the government. Facing potentially stiff penalties if they didn't comply, banks and other financial institutions installed sophisticated software to detect anomalies among millions of daily transactions. They began ranking the risk levels of their customers—on a scale of zero to 100—based on complex formulas that included the credit rating, assets and profession of the account holder.
Another element of the formulas: whether an account holder was a "politically exposed person." At first focused on potentially crooked foreign officials, the PEP lists expanded to include many U.S. politicians and public officials who were conceivably vulnerable to corruption.
The new scrutiny resulted in an explosion of SARs, from 204,915 in 2001 to 1.23 million last year. The data, stored in an IRS computer in Detroit, are accessible by law-enforcement agencies nationwide. "Terrorism has virtually nothing to do with it," says Peter Djinis, a former top Treasury lawyer. "The vast majority of SARs filed today involve garden-variety forms of white-collar crime." Federal prosecutors around the country routinely scour the SARs for potential leads.
One of those leads led to Spitzer. Last summer New York's North Fork Bank, where Spitzer had an account, filed a SAR about unusual money transfers he had made, say law-enforcement and industry sources who asked not to be identified because of the sensitivity of the probe. One of the sources tells NEWSWEEK that Spitzer wasn't flagged because of his public position. Instead, the governor called attention to himself by asking the bank to transfer money in someone else's name. (A North Fork spokesperson says the bank does not discuss its customers.) The SAR was not itself evidence that Spitzer had committed a crime. But it made the Feds curious enough to follow the money.
http://www.newsweek.com/id/123489
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Justice for Iraq
By DAVID B. RIVKIN JR. and LEE A. CASEY
March 29, 2008; Page A8
This week, the Supreme Court heard arguments concerning whether U.S. officials in Iraq can turn over American nationals, held in that country by Coalition Forces, to the Iraqi government for trial and punishment.
The men involved, Shawqi Ahmad Omar (a dual U.S./Iraqi national) and Mohammad Munaf (a dual U.S./Jordanian national), traveled voluntarily to Iraq and are accused of criminal offenses there – kidnapping for ransom (Mr. Munaf) and assisting Iraqi insurgents, also in connection with a kidnapping for ransom scheme (Mr. Omar). Both men have demanded intervention by the U.S. federal courts – through habeas corpus petitions – and seek judicial orders forbidding their transfer to Iraqi officials and other forms of cooperation between the U.S. and Iraqi authorities. This judicial relief would manifest disdain for Iraqi sovereignty and violate settled law.
Every country has the legal right to punish criminal offenses that occur on its territory. This is a fundamental attribute of sovereignty, and is fully recognized by the U.N. Charter. When Americans go overseas, they are subject to this rule – as are foreign nationals who visit the U.S. Diplomats enjoy internationally recognized immunities from local jurisdiction, and military personnel are generally covered by status-of-forces agreements which regulate application the host country's laws.
These exceptions to the general rule are, in fact, broader under Iraqi law – exempting both non-Iraqi military personnel and certain civilian security professionals.
But neither Mr. Omar nor Mr. Munaf enjoy any of these immunities. They are private citizens who claim U.S. government protection, and access to the federal courts, based upon their detention in Coalition facilities maintained, in part at least, by American officials. The Supreme Court has made clear that Americans overseas – even when held formally in U.S. custody – can lawfully be transferred to local authorities for criminal trial. The leading case is Wilson v. Girard (1957), in which the Supreme Court rejected an American soldier's efforts to avoid transfer to Japanese officials to face criminal charges for recklessly causing the death of a Japanese woman.
A great deal is at stake here. Iraqis are proud and, despite all of the American blood and treasure spent in Iraq, many resent the legal immunity that has been accorded to U.S. personnel and contractors. They resent even more when this immunity is broadened to include individuals who arrive as private travelers and then engage in criminal conduct on Iraqi soil.
Add in such episodes as a December 2006 escape from the Green Zone by the former Iraqi Electricity Minister Ayham al Samarrai (who was awaiting sentencing on corruption charges and is now rumored to be living in the U.S.), and the repeated snubbing of Iraqi government delegations at various international gatherings, and Iraqis see a concerted campaign to diminish their sovereignty.
The government has sought to convince the Court that it does not have jurisdiction even to consider the habeas petitions filed by Messrs. Omar and Munaf, arguing that they are held under the Coalition's, and not American, authority. A number of Justices posed questions this week evincing skepticism about this distinction. But they also appeared skeptical of the petitioners' claims that they would be entitled to more than simple release from custody – the normal relief granted in a successful habeas corpus action – and that the U.S. should be required to protect them from Iraqi government officials.
Messrs. Omar and Munaf argue that the Iraqi judicial system is fundamentally flawed and that they are likely to be tortured if recaptured by local officials. But the only alternative to release would require the U.S. to grant them "asylum" from Iraqi justice on Iraqi soil or to spirit them out of the country. Both courses of action would clearly violate Iraq's sovereignty and would risk a confrontation between the U.S. and the Iraqi government.
In addition, such orders would exceed the proper, constitutional bounds of judicial authority by directing the president how to manage American-Iraqi relations at a time and place where the U.S. military operates alongside the Iraqi forces in an ongoing armed conflict.
The choice before the Court is clear. It should respect international law and recognize Iraq's sovereign right to try and punish criminal defendants within its own territory. The U.S. has chosen not to seek (as a diplomatic matter) special treatment for these individuals because of their American citizenship, a decision properly within the executive branch's discretion. Even if the Court concludes that it has jurisdiction to consider the habeas petitions, it should reject them and let Messrs. Munaf and Omar have their day in the Iraqi courts.
Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.
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The War on Terror Is Not a Crime
By DAVID B. RIVKIN JR. and LEE A. CASEY
April 25, 2008
Lynching lawyers, as Shakespeare once suggested, has never appealed much to the legal profession itself – literally or figuratively. But an exception apparently will be made for a group of attorneys who advised President Bush and his national security staff in the aftermath of 9/11. They've been subject to an increasingly determined campaign of public obloquy by law professors, activist lawyers and pundits.
Their legal competence and ethics have been questioned. Suggestions have even been made that they can and should be held criminally responsible for "war crimes," because their legal advice supposedly led to detainee abuses at Abu Ghraib and elsewhere.
The targets of this witch hunt include some of the country's finest legal minds – such as law Prof. John Yoo of the University of California at Berkeley, Judge Jay Bybee of the Ninth Circuit Court of Appeals, and William J. (Jim) Haynes II, former Pentagon general counsel. Others frequently mentioned include former White House Counsel Harriet Miers, former Attorney General Alberto Gonzales, and former Undersecretary of Defense Douglas Feith.
Many positions taken by these attorneys, laying the fundamental legal architecture of the war on terror, outrage international activists and legal specialists. Nevertheless, in a series of cases beginning with Hamdi v. Rumsfeld (2004), the U.S. Supreme Court has upheld many of their key positions: that the country is engaged in an armed conflict; that captured enemy combatants can be detained without criminal trial during these hostilities; and that (when the time comes) they may be punished through the military, rather than the civilian, justice system.
The Court has also required that detainees be given an administrative hearing to challenge their enemy-combatant classification, ruled that Congress (not the president alone) must establish any military commission system, and made clear that it will in the future exercise some level of judicial scrutiny over the treatment of detainees held at Guantanamo Bay – although the extent of this role is still being litigated. Overall, the administration has won the critical points necessary to continue the war against al Qaeda.
Most controversial, of course, was the Bush administration's insistence that the Geneva Conventions have limited, if any, application to al Qaeda and its allies (who themselves reject the "Western" concepts behind those treaties); and the administration's authorization of aggressive interrogation methods, including, in at least three cases, waterboarding or simulated drowning.
Several legal memoranda, particularly 2002 and 2003 opinions written by Mr. Yoo as deputy assistant attorney general for the Office of Legal Counsel, considered whether such methods can lawfully be used. These memoranda, some of which remain classified, explore the limits imposed on the United States by statute, treaties, and customary international law. The goal clearly was to find a legal means to give U.S. interrogators the maximum flexibility, while defining the point at which lawful interrogation ended and unlawful torture began.
Behind this inquiry is a stark fact. In this war on terror, the U.S. must not only attack and defeat enemy forces. It must also anticipate and prevent their deliberate attacks on its civilian population – al Qaeda's preferred target. International law gives the civilian population an indisputable right to that protection.
Lawyers can and do disagree over the administration's conclusions. However, it's now being claimed that the administration's legal advisers can be held responsible for detainee abuses.
This is madness. The lawyers were not in any chain of command, and had no theoretical or practical authority to direct the actions of anyone who engaged in abusive conduct. Those who mouth this argument are engaged in a kind of free association which, if applied across the board, would make legal counsel infinitely culpable.
In truth, the critics' fundamental complaint is that the Bush administration's lawyers measured international law against the U.S. Constitution and domestic statutes. They interpreted the Geneva Conventions, the U.N. Convention forbidding torture, and customary international law, in ways that were often at odds with the prevailing view of international law professors and various activist groups. In doing so, however, they did no more than assert the right of this nation – as is the right of any sovereign nation – to interpret its own international obligations.
But that right is exactly what is denied by many international lawyers inside and outside the academy.
To the extent that international law can be made, it is made through actual state practice – whether in the form of custom, or in the manner states implement treaty obligations. In the areas relevant to the war on terror, there is precious little state practice against the U.S. position, but a very great deal of academic orthodoxy.
For more than 40 years, as part of the post World War II decolonization process, a legal orthodoxy has arisen that supports limiting the ability of nations to use robust armed force against irregular or guerilla fighters. It has also attempted to privilege such guerillas with the rights traditionally reserved to sovereign states. The U.S. has always been skeptical of these notions, and at critical points has flatly refused to be bound by these new rules. Most especially, it refused to join the 1977 Protocol I Additional to the Geneva Conventions, involving the treatment of guerillas, from which many of the "norms" the U.S. has supposedly violated, are drawn.
The Bush administration acted on this skepticism – insisting on the right of a sovereign nation to determine for itself what international law means. This is at bottom the sin for which its legal advisers will never be forgiven. To the extent they can be punished – or at least harassed – perhaps their successors in government office will be deterred from again challenging the prevailing view, even at the cost of the national interest.
That is why these administration attorneys have become the particular subjects of attack.
Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush, and were members of the United Nations Subcommission on the Promotion and Protection of Human Rights from 2004-2007.
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From Detainee to Detonatee
By JAMES TARANTO
May 5, 2008
"A Kuwaiti man released from the U.S. prison in Guantanamo Bay in 2005 has carried out a suicide bombing in Iraq, his cousin told Al Arabiya television on Thursday," Reuters reports from Dubai:
A friend of Abdullah Saleh al-Ajmi in Iraq informed his family that Abdullah carried out the attack in Mosul, his cousin Salem told the Dubai-based television channel.
"We were shocked by the painful news we received this afternoon . . . through a call from one of the friend's of martyr Abdullah in Iraq," said Salem al-Ajmi in a telephone interview aired by Arabiya.
He did not say when the suicide bombing happened.
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'Captive 220'
May 9, 2008; Page A16
It's a fair bet that no high-powered American law firm will lend a caring hand to the relatives of the seven Iraqis murdered last month by a suicide bomber named Abdullah Salih Al Ajmi and two accomplices. That's too bad, seeing as how Ajmi was himself a beneficiary of some of that high-powered legal help.
Ajmi is a Kuwaiti who was 29 when he blew himself up in the northern city of Mosul in April. But before that he had spent more than three years as an enemy combatant at Guantanamo, where he was known as "Captive 220." He was taken prisoner at Tora Bora, Afghanistan, after the fall of the Taliban, in whose service he had reportedly spent eight months. While in detention, he told interrogators that his intention was "to kill as many Americans" as he possibly could.
In April 2002, a group of Kuwaiti families retained the law firm of Shearman & Sterling to represent the Kuwaitis held at Guantanamo, including Ajmi. (An attorney at Shearman tells us the firm donated its fees to charity.) Ajmi was one of 12 Kuwaiti petitioners in whose favor the U.S. Supreme Court ruled in 2004 in Rasul v. Bush, which held that the detainees were entitled to a habeas corpus hearing.
At the time, we wrote that Rasul had "opened the door to a flood of litigation. . . . This pretty much guarantees that the 600 or so Guantanamo detainees will bring 600 or so habeas corpus cases – perhaps in 600 or so different courtrooms, with 600 or so different judges demanding 600 or so different standards of what evidence constitutes a threat to the United States."
The Pentagon seems to have understood this point only too well, because in November 2005 it released Ajmi into Kuwaiti custody before he could have his hearing. A Kuwaiti court later acquitted Ajmi of terrorism charges, and last month the Kuwaiti government issued Ajmi and his accomplices with passports, which they used to travel to Mosul via Syria.
Ajmi's story is hardly unique. Some 500 detainees have been released from Guantanamo over the years, mostly into foreign custody. Another 65 of the remaining 270 detainees are also slated to go. Yet of all the prisoners released, the Pentagon is confident that only 38 pose no security threat. So much for the notion that the Gitmo detainees consist mostly of wrong-time, wrong-place innocents caught up in an American maw.
The Defense Intelligence Agency reported on May 1 that at least 36 former Guantanamo inmates have "returned to the fight." They include Maulavi Abdul Ghaffar, who was released after eight months in Gitmo and later became the Taliban's regional commander in Uruzgan and Helmand provinces. He was killed by Afghan security forces in September 2004.
Another former detainee, Abdullah Mahsud, was released from Guantanamo in March 2004. He later kidnapped two Chinese engineers in Pakistan (one of whom was shot during a rescue operation). In July 2007 he blew himself up as Pakistani police sought to apprehend him.
Ajmi's case now brings the DIA number to 37. It's worth noting that these are only the known cases. It is worth noting, too, that people like Ajmi were among those the Defense Department thought it would be relatively safe to free, or at least not worth the hassle and expense of the litigation brought about by cases like Rasul.
All this should give some pause to those – John McCain, Barack Obama and Hillary Clinton among them – calling for closing Guantanamo. The prison is helping to save lives by keeping dangerous men from returning to the fight against our soldiers.
Stranger still are those who argue that people like Ajmi were somehow a creation of Guantanamo. They might want to have a chat with a detainee named Mohammed Ismail, who told the press after his release from Gitmo that his American captors "were very nice to me, giving me English lessons." Ismail was recaptured four months later while attacking an American military position in Kandahar.
Our liberal friends argue that the detention facilities at Guantanamo Bay have hurt America's image in the world, and that's true. Then again, Ajmi and others show that there are also lethal consequences to the legal war that liberals are waging on the war on terror. Liberals claim they are only fighting for "due process," but they are doing so for foreign enemies who want to kill innocents and don't deserve such protections. Mosul is one result.
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Until the left starts seeing their own friends and families die at the hands of these savages, they'll continue to wage their war to undercut the war against the global jihad. Of course, after suffering terrorism firsthand, i'm sure they'll try to sue the USG, and law enforcement for failing to protect them. :roll:
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The Lawyers War
May 20, 2008; Page A22
The war on terror is easily the most litigated war in history, and on the evidence so far the lawyers are winning. They may yet succeed in killing military commissions, despite their long U.S. history and a law duly passed by Congress and signed by the President.
The latest legal battle concerns the Pentagon's attempt to try the perpetrators of 9/11. You'd think this would be easy compared, say, to trying the eight Nazis who secretly landed on Long Island and Florida in June 1942. Those Nazis didn't kill any Americans. Yet they were captured within days and convicted by military commissions established by FDR; most were sentenced to hang within two months. The Supreme Court validated the action in Quirin. But today, nearly seven years after 9/11, the U.S. still hasn't tried the conspirators who planned the deaths of 3,000 Americans.
Khalid Sheikh Mohammed and five others have been referred for trial at Guantanamo Bay under the 2006 Military Commissions Act. Yet a guerrilla campaign by military attorneys and human-rights lawyers is throwing up obstacles at every turn. The latest is an attempt to discredit Brigadier General Thomas Hartmann, the legal adviser to the commissions who has been given the thankless task of getting the trials underway.
General Hartmann was disqualified this month from advising in the case of one terror defendant on the preposterous grounds that he had exerted "undue influence." How so? It seems he had told military prosecutors that they should get better training, and that the cases to try first should be the "sexy" ones that might "capture the imagination of the American people." Such as those involving the deaths of 3,000 Americans.
In his bizarre decision, Military Judge Keith Allred conceded this wouldn't disqualify the legal adviser in a normal military court-martial. But it was enough in this case because Congress wanted the military commissions to avoid even the "appearance of unlawful command influence." Congress didn't define such unlawful influence, however, so Judge Allred defined it himself. And his elastic definition included the fact that the antiwar Harper's magazine had published a screed against military commissions and General Hartmann. Seriously.
Keep in mind that the trial judge in each case, not General Hartmann, still makes the decision about admitting evidence and other trial conduct. All General Hartmann has been doing is providing some legal direction to the prosecutors trying the case, rather like a district attorney or U.S. Attorney. The logic of Judge Allred's ruling is that General Hartmann must defer more to prosecutors in al Qaeda cases than he would in courts-martial against American soldiers.
Meanwhile, the press has distorted another recent Guantanamo decision. Susan Crawford, the former civilian judge who is supervising the military tribunals, dismissed the capital charges last week against one of the six al Qaeda 9/11 conspirators. Mohammed al-Qahtani was allegedly going to be the 20th hijacker on 9/11 had he been admitted to the U.S. He was captured in late 2001.
Echoing defense attorneys, the press is calling Judge Crawford's decision a setback for the tribunals and is reporting the now-routine claim he was tortured under interrogation. But those attorneys haven't seen Judge Crawford's ruling, which is under seal. We're told the judge separated al-Qahtani on grounds that he was less central to the conspiracy than were the likes of KSM, and that being tried with the five others might have prejudiced the death-penalty case against him. In other words, her ruling shows how independent Judge Crawford and the tribunals are from Pentagon pressure.
The larger game here, among many lawyers and most of the press, is to give the impression that military commissions are unworkable. The critics want to delay the trials long enough to push them into the next Administration, which they hope will then abandon commissions. Their ultimate goal is to get terrorists tried like any other defendant in civilian courts or regular courts-martial – fully aware of how daunting the chance of convictions would be.
The critics are especially worried that KSM and friends might go on trial before the November election, because their testimony is likely to celebrate their murders and remind the world how much they want to kill Americans. They deserve to be tried as "enemy combatants" under military tribunals precisely because they have violated the rules of war. The case against them also involves classified intelligence that can't be heard in open court.
Congress and the executive branch have decided that military commissions are necessary to defend the country, and the Supreme Court decided in Hamdan in 2006 that they are legal when properly established by both branches. The obligation of military lawyers is to get on with the trials, and see that justice is done to those who killed innocent Americans.
See all of today's editorials and op-eds, plus video commentary, on Opinion Journal.
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A friend who was involved with this case sent me the following:
================
Member of Afghan Taliban Convicted in
U.S. Court on Narco-Terrorism and Drug Charges
MAY 20 -- WASHINGTON – A member of an Afghan Taliban cell was convicted today by a jury in U.S. District Court for the District of Columbia on charges of narcotics distribution and narco-terrorism, Assistant Attorney General for the Criminal Division Alice S. Fisher announced. The conviction represents the first time a defendant has been convicted in U.S. federal court of narco-terrorism since the statute was enacted in March 2006.
Khan Mohammed, from the Nangarhar Province of Afghanistan, was investigated by the Drug Enforcement Administration (DEA) for weapons and narcotics offenses. The investigation revealed that Mohammed was part of a Taliban plan to obtain rockets to attack U.S. military and Afghan civilian personnel at Jalalabad Airfield in Jalalabad, Afghanistan. A cooperating witness working with the DEA met with Mohammed on several occasions to plan the rocket attack. Evidence presented at trial established that Mohammed had previously engaged in similar rocket attacks against other Afghan targets. During the investigation, Mohammed also sold opium and heroin that he knew was intended for importation into the United States.
“The Department of Justice will continue to use every available legal tool to bring to justice those who help fund terrorist activities by trafficking in illegal drugs,” said Assistant Attorney General Alice S. Fisher. “I would like to thank the DEA, our law enforcement partners in Afghanistan and the federal prosecutors for their hard work on this case.”
“As an enemy of the United States, Khan Mohammed intended to ship heroin to the United States and use profits from that trade to assist the Taliban,” said DEA Acting Administrator Michele M. Leonhart. “ A dangerous double threat, Kahn Mohammed purchased rockets to attack American and coalition soldiers who were risking their lives to stabilize Afghanistan. The conviction of Kahn Mohammed puts an end to this source of poison and violence.”
A grand jury first returned an indictment against Mohammed on Dec. 13, 2006, charging him with distributing opium and heroin, knowing that it would be imported into the United States. A superseding indictment returned on Jan. 23, 2008, also charged Mohammed with engaging in drug trafficking knowing or intending to provide something of pecuniary value to a terrorist or terrorist organization. Mohammed was brought to the United States on Nov. 5, 2007. Mohammed faces a mandatory minimum sentence of 20 years and a maximum of life in prison.
A sentencing hearing is scheduled before the Honorable Colleen Kollar-Kotelly on Oct. 10, 2008. The case was prosecuted by Deputy Chief of Litigation Julius Rothstein, Trial Attorney Matthew Stiglitz and paralegal Arianne Tice of the Criminal Division’s Narcotic and Dangerous Drug Section. The investigation was led by the DEA’s Kabul Country Office and DEA’s FAST team in Afghanistan with support from DEA’s Special Operations Division in the United States and in close cooperation with Afghan law enforcement.
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I don't understand how the US legal system has obtained jurisdiction over battlefield matters in Iraq:
http://www.blackfive.net/
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This is the end result of "lawfare". Wonderful. :x
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http://weeklystandard.com/Content/Public/Articles/000/000/015/154vgolw.asp
Are We Serious?
They're at war, we're catching crooks.
by Thomas Joscelyn
06/09/2008, Volume 013, Issue 37
Willful Blindness
A Memoir of the Jihad
by Andrew C. McCarthy
Encounter, 250 pp., $25.95
In the wake of the September 11, 2001, attacks, America has tried to understand how she could have been so blind. Countless books, articles, documentaries--in addition to the 9/11 Commission's high-profile investigation during a hotly contested presidential election year--have all attempted to answer one central question: How could a small band of al Qaeda terrorists execute the greatest attack on American soil since Pearl Harbor?
For Andrew McCarthy, a former federal prosecutor, the answer begins with a series of fateful events in the early 1990s. And in his exceptional new book, he documents a series of missteps that led America to consistently misjudge both the scale and the nature of the terrorist threat. McCarthy exposes a fundamental flaw in the government's counterterrorism strategy prior to September 11. While our enemies were waging a war, we were prosecuting them as mere criminals. Much of the burden of dealing with an imminent national security threat was, therefore, placed on the criminal justice system. But as McCarthy demonstrates in meticulous fashion, the courts are a poor substitute for the real battlefield, so much so that our terrorist enemies were consistently able to outflank us.
McCarthy's story is centered on the trial of Sheikh Omar Abdel Rahman ("The Blind Sheikh") and 11 of his followers. McCarthy led the prosecution of this dirty dozen in 1995. In landmark convictions, Rahman and his cohort were found guilty of participating in a broad conspiracy to attack Americans, including the 1993 World Trade Center bombing and a follow-on plot to destroy landmarks in the New York area just months later.
It is no exaggeration to say that the convictions stand out as a singular achievement in counterterrorism history. At the time, the law was so ill-equipped to handle such a case that McCarthy and his team had to charge the sheikh with violating a Civil War-era statute prohibiting seditious conspiracy! The sheikh slyly avoided discussing precise tactics, preferring instead to lend his voice to theological justifications for violence. His blessing was crucial for the terrorists to move forward, but America's laws were not written with someone like Rahman, or his type of violence, in mind.
In McCarthy's words, "The legal system circa 1993 was woefully unprepared for radical Islam." Therefore, pinning these events on Rahman--who clearly, at the very least, inspired them--was no small feat.
McCarthy, however, does not rest on his laurels. In fact, one senses that if it were up to him, the trial of Rahman and his cohort would never have happened. The terror network centered on Rahman should have been years earlier--or, better yet, never allowed to develop on American soil in the first place. And in the aftermath of the events of 1993, the criminal justice system should not have been our frontline defense.
As McCarthy writes, "In the eight years between the World Trade Center's bombing and its destruction, the high-profile court cases that constituted the Clinton administration's counter-terrorism strategy resulted in the convictions of exactly twenty-nine terrorists." By way of contrast, consider that the former National Security Council official Richard Clarke has stated that "perhaps over 10,000 terrorists" were trained "at the camps in Afghanistan" alone. Clearly, America was not on a war footing.
From McCarthy's perspective, the missteps began in 1989 when the FBI prematurely abandoned its investigation into a group of jihadists conducting firearm drills in Calverton, Long Island. One of those jihadists, El Sayyid Nosair, went on to murder an extremist Jewish leader named Rabbi Meir Kahane on November 5, 1990. Despite overwhelming evidence of his guilt, Nosair was acquitted of Kahane's murder and convicted of only lesser charges.
This miscarriage of justice, McCarthy explains, was further compounded by an incompetent investigation. Nosair left behind a treasure trove of information, including handwritten notes, connecting him to a broader terror network then operating in New York and New Jersey. But authorities failed to analyze much of it. Instead, Nosair was branded a "lone gunman" and the 40-plus boxes of evidence seized with Nosair were ignored, thereby allowing his fellow conspirators to initially escape scrutiny.
Nosair was no lone wolf, as McCarthy makes clear, but one of Sheikh Rahman's gaggle of followers. And together they had more grandiose designs. For example, in one of his initially overlooked notebooks, Nosair expressed his desire to destroy America's "high world buildings which they are proud of and their statues which they endear and the buildings in which gather their heads [their leaders]."
On February 26, 1993, more than two years after Kahane's murder, a powerful truck bomb was detonated underneath the World Trade Center. Seven people were killed, including an unborn child, but the damage could have been much worse: The terrorists responsible, some of whom had consulted Nosair in prison and attended the firearm drills in Long Island, wanted to kill thousands.
Nor did Rahman's jihadists stop there. They soon began plotting yet another, more devastating, attack. This time they wanted to simultaneously destroy several landmarks in the New York area, including the United Nations building and the Holland and Lincoln tunnels. That plot never got off the ground because of a well-placed FBI informant named Emad Salem. Rahman's followers thought the Egyptian Salem was a committed jihadist who could provide them with invaluable explosives expertise. Instead, Salem led them down a path of misdirection: The plotters mixed the chemicals for a bomb in a Queens warehouse under Salem's (and the FBI's) watchful eye. Once a critical mass of evidence was collected, Rahman and his minions were rounded up, thereby short-circuiting their bomb making, and convicted as a result of McCarthy's relentless prosecution.
But as McCarthy reveals, even this success has a troublesome back story. The FBI first recruited Salem to serve as a mole prior to the World Trade Center bombing. Skittish agents, who mishandled Salem from the first, alternated between fears that they could not corroborate his testimony and that Salem's fellow plotters would be successful despite Salem's meddling. In the latter case, the FBI would have known about a plot that it failed to stop--a surefire recipe for public scorn. The bureau, therefore, decided to end Salem's employment several months before the World Trade Center bomb was detonated.
The failure to properly vet Nosair's documents, or to continue using Salem's services in the months leading up to the World Trade Center bombing, is bad enough. What's worse is that Sheikh Rahman was allowed to freely operate and inspire these terrorist acts from American soil in the early 1990s. At that point, for more than a decade, Rahman had provided the religious justification for numerous terrorist plots in Egypt, including the assassination of Anwar Sadat. He was the spiritual head of Egypt's two main terrorist groups, both of which were instrumental in aiding al Qaeda's rise. And he was a player in the jihad against the Soviet Union in Afghanistan, where he made numerous allies, including Osama bin Laden himself.
Yet, despite his dark past, Rahman was repeatedly granted U.S. visas. It is ironic, then, that while the sheikh could not safely preach in Cairo, he could preach in mosques in Brooklyn and Jersey City.
Had McCarthy stopped at telling the story of the many tactical failures that allowed Rahman's terrorists to menace America in the early 1990s, Willful Blindness would have been an invaluable addition to the literature of 9/11. But he takes his argument a step further, showing how these tactical failures were merely symptoms of a larger strategic failure to comprehend the nature of our terrorist enemies. In the process, McCarthy has given us one of the most important books on jihadist terrorism.
The strategic failure McCarthy exposes is ongoing, and extends even to something as basic as naming the enemy. Just as Willful Blindness was released, the State Department and other agencies published an edict banning the use of the word "jihadist" (as well as similar terms) from the government's lexicon. The thinking is that the terrorists like to call themselves "jihadists," thereby appropriating an Islamic term which can have far more benevolent meanings, such as the struggle for spiritual betterment or simply to do good.
It is true that, in some Islamic traditions, "jihad" has been endowed with such inoffensive meanings. But as McCarthy rightly argues, "jihad" has far more frequently been used to connote violent campaigns against infidels since the earliest days of Islam. When Sheikh Rahman called on his followers to wage "jihad," they knew that their master did not mean for them to become absorbed in prayer.
Moreover, Washington is apparently too obtuse to notice that Saddam Hussein, al Qaeda's terrorists, Tehran's mullahs, and Saudi Arabia's Wahhabi clerics have called for a militant brand of jihad persistently over the past several decades. All of these parties know how their words will be interpreted by the Muslim masses, and no fiat from the Washington bureaucracy will undo this widely accepted meaning.
Not only does Washington have a hard time properly naming our jihadist enemies, it still fails to understand that terrorist-sponsoring regimes have long backed them. Here, McCarthy has been at the forefront of explaining how jihadist terrorism is frequently, but not exclusively, a tool of hostile regimes: Writing in these pages in 1998 ("The Sudan Connection"), he explored the many ties between the 1993 plotters and the Sudanese regime then led by an Islamic radical named Hassan al-Turabi. Indeed, Turabi and Rahman were longtime friends and allies. McCarthy returns to this aspect of the story in Willful Blindness to show how Sudan's U.N. delegation provided material support to Rahman's terrorists as they plotted to blow up New York's landmarks. (The Clinton administration even expelled two Sudanese delegates because of their involvement.)
Sudan's sponsorship went far beyond Rahman's goons. In the early 1990s Turabi forged a broad terrorist coalition that included Osama bin Laden's core group of followers, all of al Qaeda's affiliates, and a number of other organizations. Turabi envisioned bringing all of these parties together in one grand anti-American terrorist coalition. And he received the support of the two leading state sponsors of terrorism: Saddam Hussein's Iraq and the mullahs' Iran. Out of this witch's brew of state and nonstate actors grew the network that we commonly call "al Qaeda."
It is beyond my scope here to summarize all of the evidence that supports this thesis, but suffice it to say that McCarthy is exactly right when he asserts,
It is not difficult to find some current or former intelligence official ready and willing to opine that Sunnis [such as Rahman and bin Laden] would never cooperate with secularists or Shiites--overlooking abundant evidence of the Ba'athist Saddam Hussein coddling Sunni jihadists and a years-long history of collaboration between al Qaeda and Shiite Hezbollah.
McCarthy argues that, more than a decade after the Blind Sheikh was convicted of inspiring terrorism on American soil, America remains largely blind. Even the September 11 attacks did not fully awaken our nation, or its leaders, from their slumber. An implacable hate drives our enemies to never-ending violence. For them, we are the "other," infidels who deserve to be slaughtered as victims of a religious jihad, and there are many who are willing to support their war on us.
Thomas Joscelyn is a terrorism researcher, writer, and economist living in New York. He is the author, most recently, of Iran's Proxy War Against America (Claremont Institute).
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http://hotair.com/archives/2008/06/12/breaking-supreme-court-says-gitmo-detainees-must-have-access-to-us-courts/
Lawfare triumphant.
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I notice a lot of people in the Hotair response posts expressing anger at the SCOTUS. SCOTUS didn't write/vote for/pass the flawed legislation. Why don't we pass the blame on the administration/congress for blowing it in the first place?
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A couple more thoughts on the decision (from Slate.com):
The Court held 5-4, in an opinion by Justice Kennedy, that the petitioners at Gitmo have a constitutional right to petition for habeas corpus and that the DTA/MCA process of D.C. Circuit review from CSRT decisions is not an adequate alternative to habeas. Thus, the petitioners will be able to have habeas petitions considered in district court.
That's very, very big news. But as far as I can tell just yet, the court did not reach the two even more important questions:
1. Whether the Constitution applies to detainees held outside Gitmo; and
2. What the substantive standard for detention is: "It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined."
At first glance, it would appear that although the decision is momentous, there are other important things that it does not do:
It does not speak to whether Gitmo should be closed (although it basically undermines the administration's principal reason for using Gitmo in the first place, which was to keep the courts from reviewing the legality of the executive's conduct).
Nor does it affect, in any dramatic sense, possible military commission trials—with the important exception that it invites the defendants in those trials to raise constitutional defenses, such as under the Ex Post Facto Clause.
Also:
There’s much fulminating in the dissents about the court usurping the judgment of the political branches, accompanied with the contention (particularly forcefully asserted in Scalia's dissent) that the court’s recognition of habeas rights creates a grave security threat to the nation. But it’s worth recalling one basic fact about this whole litigation: The government of the United States (neither the president nor the Congress) has never argued that the writ of habeas corpus should actually be suspended, something the Constitution permits so long as the constitutional standard for doing so is met. As the Constitution says, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
Instead, the government has argued only that habeas does not apply to these detainees because of who and where they are and that, even if habeas does apply, the current statutes provide an adequate substitute for it. The court, of course, has now rejected both of those arguments. But if, in the view of the political branches, the public safety really precludes the modest increment of additional process that constitutional habeas now requires in the eyes of the court, nothing prevents the political branches from arguing that the writ should actually be suspended and then passing legislation to suspend it.
I find this line interesting: That the political branches have not to this point seen fit to do so—and that there is not and has not yet been the political support in Congress for such a suspension (putting aside the separate question whether the court would conclude that such a statutory suspension meets the constitutional requirements for suspension)—goes some distance in my view in undermining the contention that the court has somehow usurped the power of the political branches to protect the public safety.
All we now know is that the political branches have consistently avoided claiming a power to suspend, concluding instead, wrongly, that habeas did not apply to these detainees and that the newly constructed process for reviewing their detentions would be enough to satsify the constitutional guarantee of habeas.
And:
While there's much, much more to be said on the Supreme Court's blockbuster decision today in Boumediene, the not-quite-companion case involving U.S. citizens held by the Americans in Iraq also came down today - and the news there is hardly pro-detainee.
In a unanimous decision, the Court ruled that while the U.S. federal courts have jurisdiction to hear the habeas petitions of Munaf and Omar (the U.S.-citizen detainees), Munaf and Omar would lose on the merits of their habeas claims - and there's therefore no justification for blocking their transfer to the Iraqi authorities for criminal prosecution.
The detainees' key claim was that they were likely to face torture if transferred to the Iraqis for prosecution. The Court concludes that this claim is "of concern," but that it is primarily up to Congress and the Executive to determine how to handle it. Since the State Department has determined here that the Iraqi detention facilities are good enough, the Court decides it is in no position to challenge that determination.
Souter, Ginsburg and Breyer concur separately in an attempt to limit the scope of the decision - emphasizing that the Court is reserving judgment on whether the outcome would be the same in the "extreme case in which the Executive has determined that a detainee [in U.S. custody] is likely to be tortured but decides to transfer him anyway." But given the briefing the Court had before it in this case, including this amicus brief detailing all the reasons why torture was likely in this case, it's a little hard to imagine just what kind of exceptional circumstances they have in mind. Among other things, the same State Department had said in its most recent country report that Iraqi jails have "significant human rights problems," including "torture and other cruel, inhuman, or degrading punishment" and "[a]busive interrogation practices" including "rape, torture and abuse, sometimes leading to death."
I'm not sure which is more remarkable about the decision - the fact that it was unanimous or the fact that the Court decided to reach the merits of the habeas claims that the men were being held in violation of their rights under U.S. law. I'll say it was the decision to reach out and decide the merits - of a piece, one might note, with Justice Kennedy's paean to the role of the federal courts in such matters in Boumediene itself: "Because our Nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury." Read: We've been holding back. We're no longer so inclined.
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Glad to see some serious posts on this.
Here the WSJ weighs in:
Adiós, Guantánamo
By JAMES TARANTO
June 12, 2008
"The Nation will live to regret what the Court had done today," Justice Antonin Scalia writes at the end of his dissent in Boumediene v. Bush, the case in which a bare majority of the Supreme Court, for the first time ever, extended rights under the U.S. constitution to enemy combatants who have never set foot on U.S. soil.
It's worth noting that the nation has lived to regret things the court has done in earlier wars. In Schenck v. U.S. (1919), the court upheld the conviction of a Socialist Party leader for distributing an anticonscription flier during World War I--material that would unquestionably be protected by the First Amendment under Brandenburg v. Ohio (1969). In Korematsu v. U.S. (1944), the court held that the government had the authority to ban Japanese-Americans from certain areas of California, simply on the ground that their ethnic heritage rendered their loyalty suspect. Korematsu has never been overturned, but there is no doubt that it would be in the vanishingly unlikely event that the question ever came up again.
This war was different. Almost immediately after the 9/11 attacks, we began hearing dire warnings about threats to civil liberties. Five members of the high court seem to have internalized these warnings. As Justice Anthony Kennedy put it in his majority opinion today, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Kennedy and his colleagues seemed determined to err on the side of an expansive interpretation of constitutional rights.
And err they did. As Justice Scalia writes:
[Today's decision] will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today.
In establishing the detention facility at Guantanamo Bay, President Bush relied on a Supreme Court precedent of more than a half century's standing, Johnson v. Eisentrager (1950), which held that nonresident alien enemy combatants had no right to habeas corpus. As Scalia explains:
Had the law been otherwise, the military surely would not have transported prisoners [to Guantanamo], but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.
This points to a key limitation in today's ruling. The majority distinguished Guantanamo from the facility at issue in Eisentrager--a U.S.-administered prison in occupied Germany--on the ground that although the Guantanamo Bay Naval Base is technically on Cuban territory, America exercises "complete jurisdiction and control" over it. Thus, detainees have constitutional rights pursuant to today's ruling only if they are held at Guantanamo.
What does Boumediene mean in practice? Almost all Guantanamo detainees already have lawyers and have petitioned for habeas corpus. Those cases will go forward in the Washington, D.C., federal trial court. The judges there will have to settle on a standard of proof, and to rule on such tricky questions as how much classified material the government is obliged to provide to terrorists and their lawyers. Since the military's existing procedures are already overly lenient--Scalia lists several cases of released detainees showing up on the battlefield--it seems unlikely that many detainees will end up winning release.
Both Barack Obama and John McCain have said they want to close down Guantanamo, and this ruling makes that outcome more likely. There is little advantage to the U.S. in sending enemy combatants to a facility where they will immediately be able to lawyer up, and indeed, Guantanamo has admitted few new detainees in the past several years. A notable exception occurred in 2006, when President Bush transferred Khalid Sheikh Mohammad and a dozen or so other "high value" detainees there--a dramatic action that helped galvanize Congress to pass the Detainee Treatment Act This turns out to have been a mistake. KSM & Co. now have "constitutional rights." Had they been kept where they were, wherever that was, this would not be the case.
It's possible that Scalia is wrong when he predicts more Americans will die as a result of this ruling. It may be that al Qaeda is a weak enough enemy that America can vanquish it even with the Supreme Court tying one hand behind our back. Anyway, keeping future detainees away from Guantanamo should prevent them from coming within the reach of the justices' pettifogging.
Perhaps decades from now we will learn that detainees ended up being abused in some far-off place because the government closed Guantanamo in response to judicial meddling. Even those who support what the court did today may live to regret it.
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Endless judicial overreach. Trying to litigate al qaeda into submission during the Clinton administration didn't work so well, but I guess it'll work out now. :roll:
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Woof,
This means that in the future our military, will have every incentive not to take prisoners. Sounds good to me. :evil:
P.C.
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http://counterterrorismblog.org/2008/06/how_the_jihadi_propaganda_mach.php
JUNE 12, 2008
How the Jihadi Propaganda Machine Will Win the Guantanamo Trials
By Walid Phares
Jihadism in the 21st century has plans for all types of situations, including Mujahada (Jihadi activity) in a courtroom when needed.
This is now what the world will witness during the trials of the al Qaeda detainees in Guantanamo, Cuba. Both the inmates on the inside and the Jihadi-mates on the outside were waiting for this moment to strike, politically and psychologically, using the media as their weapon. To the well-trained and -indoctrinated five standing trial, the objective is not to gain as many rights and freedoms as possible under current U.S. and international law; rather it is to resume what they began before 9/11 which they deeply wish to fulfill - as they said in their own words - using the trial as a global media opportunity.
This attitude has been anticipated by most experts who have followed the Guantanamo "ideological" battle, particularly the al Qaeda-Jihadist treatment of the issue. It was fully predicted that at least Khalid Sheikh Mohammed (KSM) and Ramzi bin al Sheeba will take the lead in counter-prosecuting the United States and all its allies. Unlike in other comparable cases, analysts know how important it is for al Qaeda and their supporters around the world to bash the United States - and any other democracy that prosecutes Salafi terrorists - when the trials are ongoing. At that juncture, three elements will converge into one powerful force, all determined to score points against America.
First, there is the Bin Laden organization which thrives on fiery declarations issued by its members on trial. Their goal is, of course, to maximize the propaganda dividends. Every word in the statements made by KSM and al Sheeb, and the others as well, will become gold for the as Sahab machine, the maker of the video and audio material. To al Qaeda, the fate of the men in Guantanamo is not the issue, for in their Jihad they don't count. Rather, it is the amount of Jihadi propaganda material they can get out of this "battlefield" that really matters to them.
Second, and more importantly, there are the other Jihadists worldwide. These are the Jihadists who still have their freedom and will be able to carry out virulent attacks against the trials and the United States. In doing this, a political price will be paid by America, even for trying the most obvious terrorists - the planners and backers of the 9/11 operation. Organizations, movements, parties, ideologues, militants and a vast constellation of Salafists - and also Khomeinists - are and will continue to attack Guantanamo itself while ignoring the defendants.
The goal of these other free Jihadists is to deter Washington - and other Western countries - from trying the incarcerated Jihadists. Their thinking is that if the U.S. gets condemned in the global media for prosecuting and trying and eventually sentencing the worst of the worst, America will be intimidated when it tries to prosecute non-al Qaeda Jihadists. In addition, other "hidden forces" sympathetic to the goals, but not the methods, of Bin Laden will support the campaign against the trial by enlisting their resources in the media to serve the "anti-trial" campaign (even though this is not a pro-al Qaeda trend).
Third, the conglomeration of all anti-American political forces, including many radical circles within the United States, will unleash its attacks against Guantanamo and what it represents, meaning the existence of the "War on Terror". A significant ideological segment of the political establishment in America has been pushing the slogan of an "orchestrated war" which must be ended. To them, the trial of the terrorists in Guantanamo is an opportunity to bleed U.S. efforts in the confrontation, thereby enhancing their own domestic political fortunes and agendas.
These three elements are converging into (what is to them) the Battle of Guantanamo. Here is how it will take place.
First, the "team" on the inside of the courtroom will unleash any and all statements needed to create the environment for a martyrdom case: istishaad. They will claim the tribunal is not legitimate, the Guantanamo process is not legal, the procedure is not acceptable and that they want to receive the death penalty so they may become shuhada, or martyrs.
Then, the "production" will be picked up by al Qaeda and other Jihadi-Salafist entities around the world and will reappear in videos, audio and texts, as well as circulate around the world of militant networks.
The in-court "drama" will also be used by the Wahhabi and Muslim Brotherhood networks, that is the long term Jihadists, not praising the defendants but rather promoting some of the arguments made by the al Qaeda detainees. This stealth use of the "production" will serve to produce more incitements and solidify the Jihadi agenda.
For example, the campaign will target American credibility and the concept of a war on terror. Some of the statements by the defendants will be stressed, such as "we do not recognize your laws, but only Sharia." In short, a control room is already in place to feed off the Guantanamo trials and turn it into a victory in the War of ideas. The al Qaeda detainees will make their statements and will be sentenced, but the international Jihadists will thrive on these words.
Meanwhile in America, we have two indicators that we aren't really winning yet on this front. One indication is that elements within our government bureaucracy are now using the absolute wrong words (the so-called "lexicon") to fight this battle. The second indication is the stunningly paltry coverage of what should be known as the trials of the century, in favor of hyped coverage of trials much less significant.
Until these indications change, we are not contenders.
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Dr. Walid Phares is the Director of the Future Terrorism Project at the Foundation for the Defense of Democracies and the author of "The Confrontation: Winning the War against Future Jihad."
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President Kennedy
June 13, 2008; Page A14
Supreme Court Justice Anthony Kennedy isn't known for his judicial modesty. But for sheer willfulness, yesterday's 5-4 majority opinion in Boumediene v. Bush may earn him a historic place among the likes of Harry Blackmun. In a stroke, he and four other unelected Justices have declared their war-making supremacy over both Congress and the White House.
Boumediene concerns habeas corpus – the right of Americans to challenge detention by the government. Justice Kennedy has now extended that right to non-American enemy combatants captured abroad trying to kill Americans in the war on terror. We can say with confident horror that more Americans are likely to die as a result.
An Algerian native, Lakhdar Boumediene was detained by U.S. troops in Bosnia in January 2002 and is currently held at Guantanamo Bay. The U.S. military heard the case for Boumediene's detention in 2004, and in the years since he has never appealed the finding that he is an enemy combatant, although he could under federal law. Instead, his lawyers asserted his "right" – as an alien held outside the United States – to a habeas hearing before a U.S. federal judge.
Justice Kennedy's opinion is remarkable in its sweeping disregard for the decisions of both political branches. In a pair of 2006 laws – the Detainee Treatment Act and the Military Commissions Act – Congress and the President had worked out painstaking and good-faith rules for handling enemy combatants during wartime. These rules came in response to previous Supreme Court decisions demanding such procedural care, and they are the most extensive ever granted to prisoners of war.
Yet as Justice Antonin Scalia notes in dissent, "Turns out" the same Justices "were just kidding." Mr. Kennedy now deems those efforts inadequate, based on only the most cursory analysis. As Chief Justice John Roberts makes clear in his dissent, the majority seems to dislike these procedures merely because a judge did not sanctify them. In their place, Justice Kennedy decrees that district court judges should derive their own ad hoc standards for judging habeas petitions. Make it up as you go!
Justice Kennedy declines even to consider what those standards should be, or how they would protect national security over classified information or the sources and methods that led to the detentions. Eventually, as the lower courts work their will amid endless litigation, perhaps President Kennedy will vouchsafe more details in some future case. In the meantime, the likelihood grows that our soldiers will prematurely release combatants who will kill more Americans.
To reach yesterday's decision, Justice Kennedy also had to dissemble about Justice Robert Jackson's famous 1950 decision in Johnson v. Eisentrager. In that case, German nationals had been tried and convicted by military commissions for providing aid to the Japanese after Germany's surrender in World War II. Justice Jackson ruled that non-Americans held in a prison in the American occupation zone in Germany did not warrant habeas corpus. But rather than overrule Eisentrager, Mr. Kennedy misinterprets it to pretend that it was based on mere "procedural" concerns. This is plainly dishonest.
By the logic of Boumediene, members of al Qaeda will now be able to challenge their status in court in a way that uniformed military officers of a legitimate army cannot. And Justice Scalia points out that this was not a right afforded even to the 400,000 prisoners of war detained on American soil during World War II. It is difficult to understand why any terrorist held anywhere in the world – whether at Camp Cropper in Iraq or Bagram Air Base in Afghanistan – won't now have the same right to have their appeals heard in an American court.
Article I, Section 9 of the Constitution contains the so-called Suspension Clause, which says: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Justice Kennedy makes much of the fact that we are not currently under "invasion or rebellion." But he ignores that these exceptions don't include war abroad because the Framers never contemplated that a non-citizen, captured overseas and held outside the U.S., could claim the same right.
Justice Kennedy's opinion is full of self-applause about his defense of the "great Writ," and no doubt it will be widely praised as a triumph for civil liberties. But we hope it is not a tragedy for civil liberties in the long run. If there is another attack on U.S. soil – perhaps one enabled by a terrorist released under the Kennedy rules – the public demand for security will trample the Constitutional delicacies of Boumediene. Just last month, a former Gitmo detainee killed a group of Iraqi soldiers when he blew himself up in Mosul. And he was someone the military thought it was safe to release.
Justice Jackson once famously observed that the Constitution is "not a suicide pact." About Anthony Kennedy's Constitution, we're not so sure.
See all of today's editorials and op-eds, plus video commentary, on Opinion Journal.
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**It struck me like a lightening bolt this a.m. as I was going off duty. As the SCOTUS has determined that the GITMO illegal combatants enjoy constitutional protections, then they enjoy ALL constitutional protections. It's like being a little bit pregnant, either you is or you ain't. **
"We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us,
Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting) (“ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ”). This Court may not impose a de facto suspension by abstaining from these controversies.
See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not appropriate in cases . . . in which the legal challenge ‘turn on the status of the persons as to whom the military
asserted its power’ ” (quoting Schlesinger v. Councilman, 420 U. S. 738, 759 (1975))). The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention."
**Ok, as the detainees' due process rights have clearly been violated, not only must they be released, they can file 1983 actions against the USG and the US DOJ better start investigating/indicting every member of the US military for excessive force/illegal search and seizure and other constitutional rights violations. No use of force by the military complies with Tenn. V. Garner or Graham V. Connor or other caselaw. No detainee was arrested with a valid arrest or search warrant or interrogated in compliance with Miranda.**
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TITLE 42 > CHAPTER 21 > SUBCHAPTER I > § 1983
§ 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
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June 16, 2008, 6:00 a.m.
A Quick Way Forward After Boumediene
Either Congress reasserts itself, or terror-friendly bedlam ensues.
By Andrew C. McCarthy
It is difficult to single out the most outrageous aspect of Justice Anthony Kennedy’s majority opinion in the Supreme Court’s cataclysmic Boumediene ruling last Thursday: The reckless vesting of constitutional rights in aliens whose only connection with our body politic is their bloody jihad against Americans; the roughshod ride over binding precedent to accomplish that feat; or the smug arrogance perfectly captured by dissenting Chief Justice John Roberts’s description of a “constitutional bait and switch” — a Court that first beseeches the political branches to enact a statutory procedure for handling combatant detentions, and then, once a thoughtful law is compliantly passed, invalidates the effort for its failure to satisfy the eccentric predilections of five lawyers.
What is done, however, is done.
HANDWRITING ON THE WALL
It should never have come to this. Ever since the Bush administration quite rightly called for a new enforcement paradigm after the 9/11 attacks — the criminal-justice system having proved itself grossly inadequate to protect national security during the Nineties — it has been apparent that shifting to a pure military system was problematic.
The war on terror is not like other wars. No war has a determinate end, but this one does not have a foreseeable ending scenario. With radical Islam, there will be no treaty, no terms of surrender, no conquering enemy territory. Instead, there is only vigilance until the enemy’s capacity to project power is quelled. Because of that, strict application of the laws of war — which permit indefinite detention until war’s end — strikes our influential legal elites as unduly onerous.
Our enemies, moreover, are terrorists who operate in the shadows, in civilian garb not military insignia. In a just world, that would inure to their detriment. In the world we inhabit, it perversely benefits them by sowing doubt about their status. It makes plausible the possibility that we have scooped up at least some people in error.
The public anger over 9/11 has faded. With a relentless campaign, fired by sympathetic media coverage, our legal elites have succeeded in raising popular concerns about the specter of innocents being held in perpetuity at the whim of the executive, without an opportunity to challenge their detention before an independent judge.
This was more of a political challenge than a legal one. Long ago, Congress and the administration should have joined forces to forge a comprehensive system that would answer those concerns. To their credit, the political branches did at least try to shore up the military detention system by providing, for the first time in history, enemy access to a civilian court — the D.C. Circuit federal appeals court — so jihadists could challenge the completed military proceedings. It is beyond arrogance that five Supreme Court justices did not allow that system to work; that, to bask in international huzzahs, they scrapped it before the D.C. Circuit could wrestle with a single case on a concrete record — before the tribunals could prove they were not kangaroo courts after all.
But let’s face it: The handwriting for what happened last Thursday has been on the wall since 2004. That’s when the Court, in a fit of imperious recklessness nearly the equal of Boumediene, decided in Rasul v. Bush that the jihadists had statutory habeas corpus rights. The handwriting was brought into starker relief in 2006 when, in Hamdan v. Rumsfeld, the Court selectively mined and tortured the language of the Geneva Conventions to vest the jihadists with trial rights under Geneva’s Common Article 3.
This has been coming at us like a runaway freight train. Congress and the administration should have seen it and stopped it. They failed to act, so the cure will be harder now — though we must, for the sake of our security, press ahead with a legislative cure.
THE FOLLY OF PUTTING COURTS IN CHARGE
Why harder? Well, until last Thursday, alien enemy combatants had no American constitutional rights. Their rights were limited to whatever the political branches, chiefly Congress, chose to grant them. If Congress, with the administration’s help, had undertaken to devise a comprehensive system of rules and procedures for terrorist detention and trial — what I have several times since 2004 proposed as a “national-security court” (see, e.g., here, here and here — NR subscription required for the last one) — it is very likely that the Supreme Court would have stayed its hand. Indeed, the justices originally declined to hear the Boumediene case before changing their minds at the end of the 2007 term, as public criticism of the military system mounted.
But the political branches ignored the neon signs. Now the Court has decided that the combatants have constitutional habeas rights. If you can follow this, the bloc of liberal justices reasons that the framers designed our fundamental law to empower enemies of the American people to use the American people’s courts as a weapon to compel the American people’s commander-in-chief to justify his actions during a war overwhelmingly authorized by the American people’s elected representatives . . . even as those enemies continue killing Americans.
The upshot of the ruling is that the judiciary, not Congress, could now become the master of deciding what rights our enemies have in wartime. When rights are based on the Constitution, rather than on statutes, Congress may not reduce them. Courts assert the power to define their ultimate parameters.
In the context of war powers — powers that are political, not legal — that would be a disaster. Courts are not responsible for our national security. Their task is to ensure that parties litigating legal cases before them are afforded due process. Moreover, the judicial tendency, when the United States is a party, is to bend over backwards to eliminate not just the reality but the mere perception of unfairness to the adversary — even if that adversary happens to be a ruthless, incorrigible enemy of the United States who would, given his druthers, torch the Constitution and install freedom-hating sharia law.
Worse, while waging war is a society’s ultimate political act, and thus suited for management only by the society’s politically accountable officials, judges are insulated from the political process. They needn’t fear being removed or voted out of office if they impose a regime that is overly solicitous of terrorist rights and heedless of national security. They can do what Leftist politicians would do if they weren’t so worried about the ballot box.
This perfect storm of institutional responsibility, natural proclivity, and political immunity hardwires judges to ratchet up due process demands over time. In the warfare context, the price will be paid in American lives.
The most reprehensible aspect of the Boumediene ruling is thus Justice Kennedy’s diktat that all “questions regarding the legality of the detention [of combatants] are to be resolved in the first instance by the District Court” — as if Congress, the law writing branch of our government, had nothing to say about them.
Congress must ignore that brazen overstatement. Boumediene is a terrible decision, but all it means for the moment is that the jihadists held at Guantanamo Bay have been given the opportunity to press their cases — i.e., to seek their release from custody — in the federal district courts. The combatants have not been ordered released, and the narrow majority did not presume to prescribe a procedure for how the district courts should handle those cases.
THE WAY FORWARD
That is the job of Congress, and it must act now. Bear in mind, even in the civilian-justice system, where the judicial competence is generally undeniable, it is Congress that enacts rules of procedure and evidence. We do not leave judges free to make it up as they go along. How much less should we do so with respect to combatant detention — a war power as to which judges have no institutional competence?
There may not be time now for ambitious, comprehensive projects like sculpting a national-security court. Boumediene has produced a crisis that demands an immediate fix. But Congress could very quickly accomplish the more modest task of enacting rules and procedures for combatant habeas proceedings. In fact, there is already a model of sorts.
Long ago, our lawmakers enacted a statutory scheme to control pretrial detention in federal criminal cases. It is codified at Section 3142 of Title 18, United States Code. In cases involving the most serious charges and defendants with the most vicious criminal histories, Congress has directed courts to grant the government a presumption in favor of detention. In detention hearings, furthermore, the law permits the parties to proceed by offering hearsay and attorney proffers of evidence; the presentation of witnesses is rare, and needn’t be allowed at all. In addition, a court considering detention is entitled to rely on any information developed in other proceedings — including on the fact that a grand jury has found probable cause that the defendant committed the alleged crime.
Mind you, that is in civilian criminal proceedings where the defendant is presumed innocent. We have long permitted lengthy periods of incarceration without trial, much less conviction, and this system has repeatedly been upheld in the face of all manner of constitutional challenge.
Obviously, being held as an alien enemy combatant in a terrorist war against the United States is a far more serious matter than even the drug and violent crimes (to say nothing of flight risks posed by foreign defendants) that routinely result in civilian pretrial detention. Thus, Congress could quickly enact a statute requiring the district courts in combatant habeas cases to afford the commander-in-chief a presumption mandating detention. That is, if the government established a rational basis for believing the detainee was an enemy combatant, he would be ordered detained unless the detainee proved beyond a reasonable doubt that he was not an enemy combatant.
Congress could provide for the presentation of evidence by hearsay, proffer, and affidavit — with a directive that the court may not compel the government (particularly, the military and intelligence community) to produce witnesses for testimony in court. It could provide for classified intelligence to be presented to the judge ex parte, with only a non-classified summary provided to the combatant. It could require the court to give deference during wartime to the conclusion of combatant status review tribunals already conducted by the military (allowing judges to disregard those conclusions only upon a showing that the conclusion was irrational — the same standard that compels federal appeals courts, in every single civilian criminal case, to refrain from disturbing a trial court’s findings of fact).
To promote efficiency, since the issues in these cases are likely to be repetitive, Congress could also direct that all petitions be filed in the District of Columbia, with all appeals to the D.C. Circuit and, ultimately, the Supreme Court. Though I would prefer to see the cases directed to a specialized court, it is not practical to expect one could be designed in the short-term. We need a solution that can be implemented tomorrow.
If Congress were to enact such a law, patterned on the pretrial detention statute but properly imposing greater burdens on petitioners who are alleged to be wartime enemies rather than mere criminals, the result would be that only the most egregious miscarriage of justice would result in a finding that a detainee was not an enemy combatant. That is as it should be — especially given that (a) alien enemy combatants have never before been afforded such rights and (b) only four years ago, in Hamdi v. Rumsfeld, the Supreme Court itself said judicial deference to the commander-in-chief was due even if an alleged combatant was an American citizen.
We must, naturally, anticipate that the federal courts will find the occasional, egregious miscarriage of justice. Thus Congress should also provide for what would happen to such a combatant. In short, he should be detained until he can be either repatriated to his native country or sent to a country of our choosing which is willing to receive him; under no circumstances should he be released into the United States.
On that score, we must be mindful of an oft-overlooked fact: Unlike American citizens who file habeas-corpus claims challenging their detention after conviction in civilian cases, the alien enemy combatants making war on us are not relying solely — or even principally — on legal proceedings. To the contrary, they have governments aggressively pursuing their release by diplomatic means. That is why the detainee population at Gitmo is down to about 270 when once it was over 800.
Naturally, Sen. Barack Obama and other hard-Left Democrats are thrilled with Boumediene. They are enthused by the prospect that federal judges, if left to their own devices, could turn these proceedings into full-blown trials, with all the constitutional protections they would gladly give our enemies if they thought voters would let them get away with it.
We shouldn’t let them get away with it.
Unduly empowered by the bedlam of unguided judicial proceedings, many jihadists will be freed. If that happens, Americans will be killed. It is that stark, and it should be that intolerable. It is the solemn responsibility of our lawmakers to prevent that outcome. With an election looming, with nearly 200,000 young Americans putting their lives on the line, and with an enemy working energetically to reprise 9/11, every member of Congress should be challenged to tell us where he or she stands on Boumediene and its aftermath.
— Andrew C. McCarthy is author of Willful Blindness: Memoir of the Jihad and director of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.
National Review Online - http://article.nationalreview.com/?q=ZGEwMTY5YTU3NGRiOWUyMzkxZTU3MDE1ZWUwMDYxOTM=
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http://online.wsj.com/public/article_print/SB121366596327979497.html
The Supreme Court Goes to War
By JOHN YOO
June 17, 2008; Page A23
Last week's Supreme Court decision in Boumediene v. Bush has been painted as a stinging rebuke of the administration's antiterrorism policies. From the celebrations on most U.S. editorial pages, one might think that the court had stopped a dictator from trampling civil liberties. Boumediene did anything but. The 5-4 ruling is judicial imperialism of the highest order.
Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court. Academics used to complain about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school. Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer -- saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.
1
First out the window went precedent. Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge. Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention.
In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S. In the months after the 9/11 attacks, we in the Justice Department relied on the Supreme Court's word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists.
The Boumediene five also ignored the Constitution's structure, which grants all war decisions to the president and Congress. In 2004 and 2006, the Court tried to extend its reach to al Qaeda terrorists held at Guantanamo Bay. It was overruled twice by Congress, which has the power to define the jurisdiction of the federal courts. Congress established its own procedures for the appeal of detentions.
Incredibly, these five Justices have now defied the considered judgment of the president and Congress for a third time, all to grant captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.
Judicial modesty, respect for the executive and legislative branches, and pure common sense weren't concerns here either. The Court refused to wait and see how Congress's 2006 procedures for the review of enemy combatant cases work. Congress gave Guantanamo Bay prisoners more rights than any prisoners of war, in any war, ever. The justices violated the classic rule of self-restraint by deciding an issue not yet before them.
Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge's view on how much "proof" is needed to find that a "suspect" is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.
So our fighting men and women now must add C.S.I. duties to that of capturing or killing the enemy. Nor will this be the end of it. Under Boumediene's claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.
President Bush has declared, rightly, that the government will abide by the decision. No American lives are yet imperiled, as the courts will have to wrestle with the cases for months, if not years. But the upshot of Boumediene is that courts will release detainees from Guantanamo Bay, or the Defense Department will do so voluntarily, in the near future.
Just as there is always the chance of a mistaken detention, there is also the probability that we will release the wrong man. As Justice Antonin Scalia's dissenting opinion notes, at least 30 detainees released from Guantanamo Bay -- with the military, not the courts, making the call -- have returned to Afghanistan and Iraq battlefields.
The Boumediene majority has two hopes for getting away with its brazen power grab. It assumes that we have accepted judicial control over virtually every important policy in our society, from abortion and affirmative action to religion. Boumediene simply adds war to the list. The justices act like we are no longer really at war. Our homeland has not suffered another 9/11 attack for seven years, and our military and intelligence agencies have killed or captured much of al Qaeda's original leadership. What's left is on the run, due to the very terrorism policies under judicial attack.
Justice Kennedy and his majority assume that terrorism is some long-term social problem, like crime, so the standard methods of law enforcement can be used to deal with al Qaeda. Boumediene reflects a judicial desire to return to the comfortable, business-as-usual attitude that characterized U.S. antiterrorism policy up to Sept. 10, 2001.
The only real hope of returning the Supreme Court to its normal wartime role rests in the November elections. Sometimes it is difficult to tell Sens. Barack Obama and John McCain apart on issues like campaign finance or global warming. But they have real differences on Supreme Court appointments. Mr. Obama had nothing but praise for Boumediene, while Mr. McCain attacked it and promised to choose judges like Chief Justice Roberts and Justice Samuel Alito, both dissenters.
Because of the advancing age of several justices (Justice Stevens is 88, and several others are above 70), the next president will be in a position to appoint a new Court that can reverse the damage done to the nation's security.
Mr. Yoo is a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute. He was an official in the Justice Department from 2001-03.
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June 17, 2008, 9:30 a.m.
Obama’s America Is September 10th America
His latest remarks betray an alarming ignorance.
By Andrew C. McCarthy
This is June 2008. That means it marks the ten-year anniversary of Osama bin Laden’s indictment.
He was first charged by my old office, the U.S. Attorney’s Office for the Southern District of New York, in June 1998. That was before the bombings of the U.S. embassies in Kenya and Tanzania (hundreds killed), before the bombing of the U.S.S. Cole (17 U.S. members of the U.S. Navy killed), and before 9/11 (nearly 3000 Americans killed). So it’s fair to ask: How is that strategy of prosecuting him in the criminal-justice system working out?
That’s a question Sen. John McCain ought to be putting to Sen. Barack Obama every day.
Sen. Obama, the Democrat’s presumptive nominee, made some astounding statements yesterday which provided his views on confronting the most urgent challenge facing the American people — that of radical Islam.
Taking aim at the Bush approach of regarding our terrorist enemies as, well, enemies, rather than criminal defendants clothed in all the rights and privileges of those American citizens whom these enemies pledge to kill, Obama asserted:
What we know is that, in previous terrorist attacks — for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.
And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, “Look, this is how the United States treats Muslims.”
So that, I think, is an example of something that was unnecessary. We could have done the exact same thing, but done it in a way that was consistent with our laws.
This is a remarkably ignorant account of the American experience with jihadism. In point of fact, while the government managed to prosecute many people responsible for the 1993 WTC bombing, many also escaped prosecution because of the limits on civilian criminal prosecution. Some who contributed to the attack, like Khalid Sheikh Mohammed, continued to operate freely because they were beyond the system’s capacity to apprehend. Abdul Rahman Yasin was released prematurely because there was not sufficient evidence to hold him — he fled to Iraq, where he was harbored for a decade (and has never been apprehended).
But let’s assume incorrectly, for argument’s sake, that everyone was brought to justice in that case. What about Khobar Towers, Sen. Obama? After Iran and Hezbollah, perhaps with al-Qaeda’s assistance, killed 19 members of the United States Air Force, the Clinton administration responded with … a criminal investigation. The result? No arrests — in fact, no indictment was even filed until 2001.
After the embassy bombings, the aforementioned bin Laden was indicted along with his top henchman Ayman al-Zawahiri and nearly two dozen others. Exactly six of those men have been prosecuted as a result. And of those, the top-ranking al-Qaeda figure, Mamdouh Mahmud Salim, has never been tried for the embassy bombings. When we gave him all the glorious privileges of the American Constitution, he used his access to free legal help as an opportunity to attempt a kidnapping escape from custody — in the course of which he maimed a prison guard by stabbing him in the eye before being subdued.
Then, of course, there was the October 2000 attack on the Cole in Aden harbor. No arrests, no indictment until well after the 9/11 attacks. The indictment has now been on the books for years as our Yemeni “allies” have pretended to pursue the al-Qaeda perpetrators — who, of course, have been permitted to escape from confinement. There is no prospect of an American prosecution because of the justice system’s painfully obvious limitations. Those terrorists are free to plot more American deaths, unless, of course, our military or intelligence operatives get them first.
And that’s the point isn’t it? Khalid Sheikh Mohammed has been under indictment by the Justice Department even longer than bin Laden. He was first charged in 1996, in connection with the so-called “Bojinka” plot to blow up American airliners as they flew over the Pacific (one Japanese tourist killed during a dry run). The plot was also found to include plans to assassinate President Clinton and Pope John Paul II.
So what happened? Because criminal prosecution is incapable of dealing with the likes of KSM — a highly insulated foreign jihadist operating from terror safe havens sprinkled across the globe — he remained free to plot murder and mayhem for years, finally masterminding 9/11.
KSM was apprehended only after the Bush administration changed strategy and started regarding terrorists as what they are: wartime enemies, rather than in possession of Obama’s suggested “criminal defendants” status.
The fact is that we used the criminal justice system as our principal enforcement approach, the approach Obama intends to reinstate, for eight years — from the bombing of the World Trade Center until the shocking destruction of that complex on 9/11. During that timeframe, while the enemy was growing stronger and attacking more audaciously, we managed to prosecute successfully less than three dozen terrorists (29 to be precise). And with a handful of exceptions, they were the lowest ranking of players.
When an elitist lawyer like Obama claims the criminal-justice system works against terrorists, he means it satisfies his top concern: due process. And on that score, he’s quite right: We’ve shown we can conduct trials that are fair to the terrorists. After all, we give them lawyers paid for by the taxpayers whom they are trying to kill, mounds of our intelligence in discovery, and years upon years of pretrial proceedings, trials, appeals, and habeas corpus.
As a national-security strategy, however, and as a means of carrying our government’s first responsibility to protect the American people, heavy reliance on criminal justice is an abysmal failure.
A successful counterterrorism strategy makes criminal prosecution a subordinate part of a much broader governmental response. Most of what is needed never happens in a courtroom. It happens in military operations against terrorist strongholds; intelligence operations in which jihadists get assassinated — without trial; intelligence collections in which we cozy up to despicable informants since only they can tell us what we need to know; and aggressive treasury actions to trace terror funds.
That is how you stop the homeland from being attacked, which is what we have done for the last seven years. And it is that from which Obama wants to move away.
Obama would bring us back to September 10th America. And September 10th is sure to be followed by September 11th .
— Andrew C. McCarthy is author of Willful Blindness: Memoir of the Jihad and director of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.
National Review Online - http://article.nationalreview.com/?q=NTFhZTdmZWZlMGExNDRjOWRlZWUxYzEwNjg0MWEzZDc=
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Muslim extremist Abu Qatada to receive £8,000 incapacity benefits a year - for his bad back
By Tom Kelly
Last updated at 9:20 AM on 23rd June 2008
Abu Qatada is to receive almost £8,000 a year in benefits because he has a bad back. The fanatical cleric, said to be Osama Bin Laden’s ambassador in Europe, will get £150 a week of taxpayer’s cash after being released from jail last week. He was granted the incapacity benefit because his condition makes him unfit to work – even though a curfew allows him out of his home for only two hours a day, meaning it would be almost impossible for him to get a job.
Qatada left Long Lartin prison in Worcestershire after the Appeal Court blocked his deportation to Jordan. He is now living in an £800,000 four-bedroom Edwardian semi in a tree-lined street in West London. His incapacity allowance will push the family’s total annual handouts to more than £50,000. His wife has been claiming £45,000 a year in child benefit, income support, housing benefit and council tax credit for the past four years.
Steve Pound, Labour MP for Ealing North, which borders Qatada’s West London home, said: ‘This is adding insult to injury. He abuses us and bleeds us dry at the same time.
‘The sooner he gets back to Jordan the better. I for one would put him in the boot of my car and drive him there myself.’
Taxpayers are also footing an estimated £500,000 a year bill to provide round-the-clock surveillance on Qatada, who has been described by a judges as a ‘truly dangerous individual’. He arrived in Britain 14 years ago on a forged passport and was granted asylum the following year. He was convicted in his absence in Jordan of involvement with terror attacks in 1998, and of plotting to plant bombs during the Millennium-celebrations. Last week a judge freed the cleric on bail after ruling he would face an unfair trial if deported to Jordan.
But the Special Immigration Appeals Commission imposed un-precedented conditions on his release, including a 22-hour curfew and wearing an electronic tag.
* Nearly a third of those claiming ‘sicknote’ benefits - some 800,000 people - have been doing so for more than a decade, figures revealed. In total 2.64million Britons live on incapacity benefit or related handouts.
Details of how hundreds of thousands appear to have backed away from returning to work throws light on the way incapacity benefit has replaced unemployment benefit as the real measure of worklessness. Those who say they are unemployed and claim the Jobseekers’ Allowance get less money than those on sickness benefits - and come under pressure to find work. The cost of incapacity benefit to the taxpayer is now calculated to run at £16billion a year. The figure includes the cost of housing benefit and council tax benefit that can be claimed by anyone receiving the incapacity payments. Checks on the handout to be introduced this autumn will only affect new claimants
http://www.dailymail.co.uk/news/arti...-bad-back.html
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Tortured Evidence
July 1, 2008
Democrats on Capitol Hill are continuing their "torture" hearings, with selective leaks suggesting that government officials delighted in cruel and inhuman punishment. Allow us to tell you the story they aren't telling friendly reporters.
Consider the case against former Pentagon General Counsel William Haynes, who in 2002 recommended the use of some "enhanced" interrogation techniques, such as light deprivation, stress positions and removal of clothing. Then-Secretary of Defense Donald Rumsfeld signed off on that recommendation. Michigan's Carl Levin, the main Monday morning Senator, has been portraying this as illegal and disdainful of other Pentagon lawyers.
But Mr. Haynes was offering advice consistent with Justice Department legal briefs. And a document produced by Mr. Levin's own investigation shows that Mr. Haynes was willing to listen to internal critics. Among Mr. Levin's star witnesses was former Navy General Counsel Alberto Mora. That's the same Mr. Mora who in 2004 wrote a long statement about his role in the interrogation debate, and his interaction with Mr. Haynes.
According to that document, Mr. Mora arranged a meeting with Mr. Haynes in late 2002 to object to certain Guantanamo interrogation techniques. Mr. Haynes explained that he believed the techniques were legal and weren't torture. Mr. Mora agreed torture was not the "intent," but worried the interrogations could get out of hand. "Mr. Haynes listened attentively throughout. He promised to consider carefully what I had said," Mr. Mora wrote.
Several weeks later, concerned the policy hadn't changed, Mr. Mora again met with Mr. Haynes, who said that some U.S. officials felt the techniques were necessary to elicit information from men believed to have participated in 9/11 with knowledge of other terror plots. "I acknowledged the ethical issues were difficult. I was not sure what my position would be in the classic 'ticking bomb' scenario . . . ," Mr. Mora wrote.
Mr. Haynes said he'd get back to him, and he did by initiating two meetings – including one between Mr. Mora and the legal adviser to the Chairman of the Joint Chiefs of Staff – so Mr. Mora could register his concerns. "I regarded Mr. Haynes's initiative to schedule the above two meetings as a positive development and a sign that he not only took my arguments seriously, but that he possibly agreed with some or many of them."
About five days later, Mr. Rumsfeld suspended the techniques, and set up a working group to develop new recommendations. It was Mr. Haynes who oversaw an effort to find consensus among that group. Mr. Mora was also pleased by a letter Mr. Haynes sent to Senator Patrick Leahy, which Mr. Mora wrote was "the perfect expression of the legal obligations binding DOD and the happy culmination of the long debates in the Pentagon as to what the DOD detainee treatment policy should be. I wrote an email to Mr. Haynes expressing my pleasure on his letter and stating that I was proud to be on his team." Keep in mind this was written by one of the most vocal internal Pentagon critics of aggressive interrogation.
We report all this because it shows that, even as Senator Levin tries to portray a Bush Administration conspiracy to ram through "illegal" interrogation methods, what we really had in the period following 9/11 was a legitimate difference of opinion. President Bush ordered political appointees to prevent another attack, in part by breaking al Qaeda detainees, and they argued over how best to do this. Mr. Levin is now using those internal disagreements to play "gotcha," when he should be congratulating Administration officials for their willingness to listen and their moral conscience.
What isn't in doubt is that these public servants acted in good faith, and their efforts are one reason the country hasn't been attacked again. As political smears go, this tortured exercise is low even by Carl Levin's degraded standards of fairness.
WSJ
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After Guantanamo
By DAVID B. RIVKIN JR. and LEE A. CASEY
July 2, 2008; Page A13
The Guantanamo Bay detention facility's days are clearly numbered. John McCain and Barack Obama have said it should be closed, and even President George W. Bush would like to see it abandoned.
Whatever legal benefit Guantanamo offered for being offshore has been largely eliminated by the Supreme Court's decision in Boumediene v. Bush, which extended American constitutional protections to the foreign fighters held there. That decision has created new and vexing legal and practical problems for the U.S. military. Here are some of the issues:
AP
Fort Leavenworth: Is Kansas ready for KSM?
- Habeas games: The Supreme Court has now taken a central role in deciding who may be captured and detained as an enemy combatant , ruling that detainees, akin to criminal defendants, are constitutionally entitled to challenge their confinement through "habeas corpus" proceedings in federal district courts. The court's reasoning extends far beyond how "unlawful enemy combatants" like the Guantanamo detainees are treated. Legitimate prisoners of war in a future conventional conflict – who now receive less legal process than the detainees at Guantanamo – also can demand habeas proceedings. Thus, American forces, if they wish to be sufficiently certain of holding enemy prisoners anywhere in the world, must set about securing CSI-style evidence to satisfy the judges that their captives are indeed what they seem to be – enemies in arms against the United States.
Collecting this evidence on the battlefield will cost lives and impair combat effectiveness. Moreover, the need to litigate habeas proceedings, particularly when applied to a large body of prisoners, will impose great additional burdens on the U.S. military, which is already stretched thin by the demands of global operations. One example: Operations in Guantanamo had to be fundamentally recast to accommodate hundreds of detainee lawyers and their support personnel.
It is deplorable that American forces can no longer detain captured enemy combatants without a burdensome judicial process. But Congress cannot fix the problem by legislating new limits on detainee due-process "rights." Until the Supreme Court's balance changes and Boumediene is overruled, the armed forces will be driven to a tragic "catch and release" policy. The most senior enemy operatives, assuming enough evidence can be collected, will be tried for war crimes before military commissions. Others will be taken into custody, interrogated, and then transferred to the custody of allied governments – or even set free in the theater of action after they have been disarmed.
- Processing Guantanamo detainees: With respect to the 270 or so Guantanamo detainees, some are being, or will be, tried by military commissions for war crimes. The Court's Boumediene decision should not prevent those trials from going forward. Indeed, they should be accelerated, and all enemy combatants in U.S. custody, against whom sufficient evidence of war crimes exists, should be brought expeditiously to trial. But for many of those not slated for these trials, habeas proceedings may well result in a release order if the government does not have sufficient evidence to satisfy a civilian judge as to their enemy combatant status.
This is the only area where Congress can and should promptly act. It may be that a handful of detainees deserve "parole" into the United States on humanitarian grounds, but none of them have a right to enter, even if a federal court does order their release. Where such parole is inappropriate, Congress should establish a category of detention that permits aliens not otherwise lawfully admitted to this country to be held until a suitable foreign government can be found to accept them, however long that may be.
Under current law, aliens in the U.S. without a lawful basis for being here, and for whom no receiving country can be found, can only be held up to six months. The Constitution grants Congress plenary authority over questions of immigration and nationality and the Supreme Court has – so far – respected that authority.
- Prison for Guantanamo detainees: That leaves the problem of what to do with those Guantanamo detainees who cannot be repatriated but who a habeas court determines can be properly detained. For all of the real diplomatic costs incurred over Guantanamo, that base was admirably suited to house captured enemy combatants. It is under complete U.S. control, far from any active battlefield, and it is isolated from nearby civilian populations – largely thanks to the surrounding "workers paradise" run by the Castro brothers. In short, the base is easily secured and presents no "host nation" or "not in my backyard" issues. It is those issues that make Guantanamo's prompt closure a bigger problem than almost anyone imagines.
Although many members of Congress (mostly Democrats hostile to Mr. Bush) have decried the detainees' fate at Gitmo, few have offered their states or districts as a suitable alternative, and chances are none will. Last July, a Senate resolution opposing transfer of Gitmo detainees "stateside into facilities in American neighborhoods" passed 94-3 (with Sen. Obama abstaining). The detainees' lawyers may claim that they are mostly innocent aid workers, supposedly sold to U.S. forces by unscrupulous Afghan or Pakistani bounty hunters, but our representatives in Congress know better. Transferring the Guantanamo detainees to the U.S. would create a security problem of unrivaled character. The new location would immediately become a particular target for al Qaeda and other jihadist groups.
The logical place to hold them, of course, would be the Military Disciplinary Barracks at Fort Leavenworth, Kan. But, unlike Guantanamo Bay, Fort Leavenworth is not isolated from the surrounding civilian population. It is very much a part of the communities of eastern Kansas and western Missouri. Other alternatives, such as the old federal prison on Alcatraz Island, are also surrounded by population centers.
For that very reason it is Congress that must make the decision where to put the detainees. If that is to be Fort Leavenworth , then the Kansas and Missouri delegations must have the opportunity to speak on the subject in the House of Representatives and the Senate. Neither President Bush nor his successor, Democrat or Republican, should act without a full and complete congressional debate on the subject, and legislation establishing the new locus for detainee operations.
Mr. Bush has taken much on his own shoulders in keeping the U.S. safe since 9/11. He has often been criticized for not consulting Congress or obtaining legislation, and has been equally vilified when consultation and legislation have been secured. This is one issue where both law and reason suggest the president should bring Congress into the decision-making process early, so that it can bear its full and fair share of responsibility for the consequences.
Messrs. Rivkin and Casey , Washington attorneys , served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush.
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The Enemy Detainee Mess
July 3, 2008; Page A10
Supreme Court Justice Anthony Kennedy has departed for summer vacation, but what a mess he's left behind, especially for the U.S. military. His 5-4 decision requiring habeas corpus review for foreign terrorists is already creating confusion and problems about how to handle these dangerous enemies.
The Bush Administration is currently debating how to respond to Mr. Kennedy's war-fighting ukase in Boumediene v. Bush, with President Bush set to make a decision soon. Some in the Administration want Mr. Bush to abolish not merely Guantanamo but even military commissions, the special tribunals set up to try Khalid Sheikh Mohammed and others for their war crimes. This would compound the mistake of Boumediene, and do away with what has long been a useful tool of military justice.
It is already clear to nearly everyone in the Administration that it will be impossible for the U.S. to hold most detainees from now on. That's true not merely at Gitmo, but even in Afghanistan, Iraq and other foreign battlefields. Earlier this month, lawyers filed a lawsuit on behalf of a detainee held at the U.S. military prison at Bagram air base near Kabul. It's only a matter of time before suits are filed demanding habeas writs for anyone captured and held by GIs for any length of time anywhere in the world.
Regrettably, the Administration will now have to let most enemy fighters go. The burden of gathering enough evidence to meet the habeas standards of U.S. federal courts is simply too great under battlefield conditions – and in any case is far too dangerous. This week a panel of the D.C. Circuit Court of Appeals rejected the enemy combatant status of a Gitmo detainee captured after training in al Qaeda camps in Afghanistan. The press has reported this as if the Bush Administration had invented a case against an innocent shepherd. But the truth is that in the fog of battle it is impossible to gather evidence the way a Manhattan cop can. There's no "CSI: Kandahar."
While GIs gathered shell casings or interviewed witnesses to meet a U.S. judge's habeas standard, they would leave themselves open to counterattack or sniper fire. No commander – and no Commander in Chief – can ask his troops to put themselves in danger to satisfy Justice Kennedy's legal afflatus. This is what Justice Antonin Scalia meant when he wrote that Americans will die as a result of Boumediene.
Justice Kennedy won't want to hear this, but this means that some enemy combatants will be shot on the battlefield rather than captured. Most who are captured will be interrogated for a brief time and released. Some will be set free entirely, while others will be handed over to the tender mercies of our allies on the ground in Iraq or Afghanistan.
The U.S. will still require some kind of detention for the worst combatants – such as KSM, and others we will want to put on trial. But if Gitmo is no longer a prison, some U.S. domestic prison will have to house these men while they await a habeas hearing and trial. If a habeas court finds the evidence against them unpersuasive, they can then be held only for six months under immigration law before they are deported. If no country will accept them, the possibility exists that they will be released here. It will be fascinating to watch the Congressfolk who cheered Boumediene now saying "not in my backyard." What does Pat Leahy think about a Vermont destination?
That still leaves the issue of trials for those who are found to be enemy combatants. The State Department is arguing that Mr. Bush should now cashier the entire post-9/11 system, including Gitmo and military commissions. The argument is that the U.S. will get no diplomatic benefit from refusing to hold future detainees as long as the commissions continue. In any case, State's legal sages say, the Supreme Court will eventually declare military commissions unconstitutional too.
But we doubt even Justice Kennedy would disallow commissions, which have existed throughout American history. After the Civil War, they were even used against the KKK's attempts to defeat Reconstruction of the South. After six long years, about 20 enemy combatants (including KSM) are now set for the tribunals, and multiple trials are under way. If Mr. Bush shuts down the commissions at this late date, the military justice process would have to start over.
It would insult the 9/11 families if justice for KSM and the others who planned those attacks is delayed once again. Assuming they are convicted, they will have the right of appeal. But would five Supreme Court Justices really set free the men who plotted the murders of 3,000 Americans? As for diplomacy, those who dislike America won't bother to distinguish between military commissions and courts martial. They'll find any military trials unfair.
The killers of 9/11 need to be put on trial, and soon. Americans need to hear them revel in their jihad, boasting that they would kill again if they get the chance. Justice Kennedy needs to hear it too.
See all of today's editorials and op-eds, plus video commentary,
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Mr. Mukasey's Modest Proposal
July 22, 2008; Page A18
We had not known previously that among Attorney General Michael Mukasey's skills was the satirical bite of Jonathan Swift. Only a Swiftian wit could have come up with Mr. Mukasey's proposal in a speech yesterday that the Solons of Congress solve the legal riddles of the Supreme Court's recent Boumediene decision on the rights of Guantanamo detainees. Absent "guidance from Congress," the AG said, "different judges even on the same court will disagree about how the difficult questions left open by Boumediene will be answered."
We can hear the shrieks from the Judiciary Committee chairs, Senator Patrick Leahy and Representative John Conyers: Guidance from Congress?! Us??!!!
Among the reasons given by Mr. Mukasey for "guidance" from Congress is the risk of "inconsistent rulings and considerable uncertainty." Inconsistency and uncertainty of outcomes is of course the goal of most modern-day Congressional enactments.
Satire aside, the Attorney General was right in stepping forward to say that someone has to take responsibility for the consequences of the Supreme Court's 5-4 ruling last month that Gitmo prisoners can petition for habeas corpus in the federal court system. With some understatement, he noted that the ruling had left "many significant questions open" on how these proceedings should be conducted.
As the former chief judge of the Southern District of New York, where he presided over terrorist trials, Mr. Mukasey is well aware of the dangers that multiple such legal proceedings could pose. Chief among them is the risk of letting terrorists at large hear how the U.S. gathered intelligence about their captured comrades-in-bombs. To enhance consistency with the some 200 pending cases, the AG suggested that Congress give one court jurisdiction over the cases.
None of this will happen. Once into the federal courts, the process most likely will bog down into a Babel of conflicting procedural and legal rulings. The Supreme Court itself may have to revisit its decision. But as to the Attorney General's assertion that this job falls "within the historic role and competence of Congress," that could indeed be called a modest proposal.
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Actually Mukasey's proposal reads to me like a rather clever shift of responsibility to Congress in order to make it face up to just how horrendous the B. decision is. If the Bush White House were to try to come up with a solution, whatever they did would be sliced and diced over in Congress and in the media.
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http://www.govtrack.us/congress/billtext.xpd?bill=h110-6615
HR 6615 IH
110th CONGRESS
2d Session
H. R. 6615
To provide for the transport of the enemy combatants detained in Guantanamo Bay, Cuba to Washington, DC, where the United States Supreme Court will be able to more effectively micromanage the detainees by holding them on the Supreme Court grounds, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
July 24, 2008
Mr. GOHMERT introduced the following bill; which was referred to the Committee on Armed Services, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To provide for the transport of the enemy combatants detained in Guantanamo Bay, Cuba to Washington, DC, where the United States Supreme Court will be able to more effectively micromanage the detainees by holding them on the Supreme Court grounds, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Giving Inmate Terrorists More Opportunities (GITMO) Act of 2008’.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The United States Supreme Court issued an opinion styled Boumediene v. Bush on June 12, 2008.
(2) Justice Anthony Kennedy, in the court’s majority opinion, held that foreign terrorism suspects held at the Guantanamo Bay naval base in Cuba have constitutional rights to challenge their detention in United States courts.
(3) This is an obvious effort on the part of the Supreme Court to micromanage the detainment and disposition of detainees in the War on Terror who are dedicated to destroying innocent people and the American way of life.
(4) The United States Supreme Court clearly needs increased opportunity to oversee the handling of the enemy combatants, as it has seen fit to take a greater role in managing the Global War on Terror, which is a duty previously exercised by the Executive Branch.
(5) There can be no better way for the United States Supreme Court to exercise its new self-appointed war powers than to house the prisoners whom it has taken a greater role in overseeing.
SEC. 3. TRANSPORTATION AND DETAINMENT OF ENEMY COMBATANTS.
(a) Transportation- The Secretary of Defense shall immediately transport all enemy combatants detained in Guantanamo Bay, Cuba to Washington, DC, where the United States Supreme Court shall hold the prisoners on the Court grounds, confined by adequate fencing.
(b) Shelter on Supreme Court Building Grounds- The Secretary of Defense, in conjunction with Justice Anthony Kennedy, the author of the majority opinion in Boumediene v. Bush, is directed to provide shelter for the detainees outside the United States Supreme Court building, but on the building grounds. The Secretary of Defense shall provide guards to watch over the prisoners and shall implement a system to ensure that the prisoners receive the appropriate amount of food and water. Should the detainees need the use of restroom facilities, they shall use the facilities inside the United States Supreme Court building. The Chief Justice, if the Chief Justice so chooses, may perform the duties of Justice Anthony Kennedy under this subsection.
(c) Guard Duty- If any of the nine Supreme Court justices desire at any time to stand guard over the prisoners, or to provide the prisoners with their meals or water, or both, then the justices shall be permitted to perform these functions whenever they want.
SEC. 4. ENFORCEMENT.
If either the Secretary of Defense or any justice of the Supreme Court refuses to carry out their duties under this Act, then their respective department or court shall receive funding for the next fiscal year at half the level of funding appropriated for the current fiscal year, or until such time as the Supreme Court no longer desires to micromanage the prisoners who have sworn to destroy our way of life.
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From Gitmo to Miranda, With Love
By DEBRA BURLINGAME
July 30, 2008; Page A15
Captive Miranda, Lord knows I have not given a thought to the paperwork you sent me.
Let me tell you, Captive, that our release is not in the hands of the lawyers or the hands of America. Our release is in the hands of He who created us.
The poem, "To My Captive Lawyer, Miranda," was written by Abdullah Saleh Al-Ajmi while he was a detainee at Guantanamo Bay, Cuba. No doubt, it would have given the former detainee, who was released in 2005, immense satisfaction to know that his last earthly deed was referenced in Justice Antonin Scalia's dissenting opinion in Boumediene v. Bush. That's the recent Supreme Court decision that gave Guantanamo detainees the constitutional right to challenge, in habeas corpus proceedings, whether they were properly classified by the military as enemy combatants.
Abdullah Saleh Al-Ajmi, on the left, in a martyrdom video posted on an al Qaeda Web site.
Al-Ajmi, a 29-year-old Kuwaiti, blew himself up in one of several coordinated suicide attacks on Iraqi security forces in Mosul this year. Originally reported to have participated in an April attack that killed six Iraqi policemen, a recent martyrdom video published on a password-protected al Qaeda Web site indicates that Al-Ajmi carried out the March 23 attack on an Iraqi army compound in Mosul. In that attack, an armored truck loaded with an estimated 5,000 to 10,000 pounds of explosives rammed through a fortified gate, overturned vehicles in its path and exploded in the center of the compound. The huge blast ripped the façade off three apartment buildings being used as barracks, killing 13 soldiers from the 2nd Iraqi Army division and seriously wounding 42 others.
Using the name "Abu Juheiman al-Kuwaiti," Al-Ajmi is seen on the video brandishing an automatic rifle, singing militant songs and exhorting his fellow Muslims to pledge their allegiance to the "Commander of the Faithful" in Iraq. Later, Al-Ajmi's face is superimposed over the army compound, followed by footage of the massive explosion and still shots of several dead bodies lying next to the 25-foot crater left by the blast.
Bill Roggio / The Long War Journal
Abdullah Saleh Al-Ajmi killed 13 people in this March 23 truck bombing in Mosul, Iraq—after he was released from U.S. custody at Guantanamo Bay.
In 2006, Al-Ajmi's "Miranda" poem was included in a recitation of detainee poetry at a "Guantanamo teach-in" sponsored by Seton Hall Law School. The all-day event was Webcast live to 400 colleges and law schools across the country and abroad. Some of the lead attorneys pushing for detainee rights participated in the event, which began with organizers boasting about the diversity of the event's participating schools as exemplified by the American University of Paris, the American University in Cairo, the U.N. University for Peace in Costa Rica, Princeton Theological Seminary, and Parsons School of Design in New York City. One of Al-Ajmi's lawyers gave a presentation about detainee treatment entitled, "Insults to Religion."
Marc Falkoff, a former Covington & Burling attorney-turned-law-professor who represents several detainees, read the poems and later published a selection of them in a book ("Poems from Guantanamo: The Detainees Speak," Iowa University Press, 2007.) In his introductory remarks to the students, Mr. Falkoff described Al-Ajmi and the other detainee poets as "gentle, thoughtful young men" who, though frustrated and disillusioned, expressed an abiding hope in the future. "One thing you won't hear is hatred," he said, "and the reason you won't hear it is not because I edited it out, it's because it's not there in the poetry." Then how to explain the fact that -- on the advice of Al-Ajmi's attorneys -- "To My Captive Lawyer, Miranda," was excluded from the published collection last year? Mr. Falkoff, who also has a Ph.D. in literature, refused to explain further, though he insists on describing Al-Ajmi's verse as a "love poem to his lawyer."
Miranda, antelope, I am madly in love with captive Roman gazelles.
I pledge that if I ever see you outside this jail, I shall capture you and take you in a starry night.
In light of Al-Ajmi's deadly suicide attack, his poem seems less, as Mr. Falkoff insisted in a recent interview, "a trope about being a prisoner of love," and more about taunting his lawyers and mocking the American legal system. As any devotee of the successful "Law & Order" television franchise knows, "Miranda" is more than a fanciful female name. It is also the name of another infamous prisoner -- Ernesto Miranda, the career criminal and itinerant sex offender whose 1966 landmark legal case resulted in the "Miranda rule," requiring law enforcement officers to inform criminal suspects in custody of their right to remain silent and their right to an attorney during questioning.
It is easy to imagine the detainees' attorneys, upon first arriving at Guantanamo in 2004, earnestly explaining to their incredulous clients how the Miranda warning works. Incredulous, because detainees would certainly grasp that extending the full array of Fifth and Sixth Amendment rights to unlawful enemy combatants would have a devastating effect on vital intelligence-gathering efforts. Indeed, lawyers have already become part of the al Qaeda tool kit. When Khalid Sheikh Mohammed was apprehended in Pakistan in 2003 and handed over to the U.S., he reportedly told his initial interrogators, "I'll talk to you guys when you take me to New York and I can see my lawyer."
After the Boumediene decision, that is no longer an empty threat. While Justice Anthony Kennedy stated in his 5-4 majority opinion that detainees are entitled to habeas review in the federal courts, he failed to expressly outline what legal standards the government would have to meet for detainee cases to pass constitutional muster. Many legal experts contend that if the habeas lawyers succeed in attaining for detainees the same degree of procedural rights as those extended to ordinary criminal defendants in domestic cases, "lawyering up" would mean the end of terrorist questioning, not the beginning.
If this is what "Miranda" represents, no wonder an Islamist suicide bomber would love her.
Miranda, what can I say? The heart is incarcerated in prisons of injustice, tortured and deprived, targeted with sharp, poisoned arrows by the hands of oppressors who have no mercy. Tell the mothers about their sons, the prisoners, brothers in bondage . . . they shall walk home.
But many in the detainees' home countries aren't welcoming them with open arms. The bombings carried out by Al-Ajmi and two other Kuwaiti nationals have stirred a public outcry from their fellow citizens. Al-Ajmi's own father has reportedly threatened to sue the government of Kuwait for issuing his son a passport and failing to live up to the terms set forth in the transfer agreement with U.S. State Department as a condition of his release. Kuwait's negligence and the State Department's failure to follow up have resulted in calls from the public for the detainees to stay right where they are and for Guantanamo to stay in operation.
"I believe the U.S. State Department knows the prisoners well, their way of thinking, and their plans after being released from prison," wrote Ali Ahmad Al-Baghli, Kuwait's former Minister of Oil, in the Arab Times after news of Al-Ajmi's suicide attack broke. He specifically criticized the outspoken leader of the Kuwaiti detainee families committee, Khalid Al-Odah, (interestingly, he is one of the "translators" Mr. Falkoff acknowledges in his poetry book), whose son remains at Guantanamo. Al-Odah hired a Washington, D.C., public-relations firm to "humanize" the detainees with sympathetic press.
"We cannot romanticize them into fallen heroes of Western neo-imperialism," wrote Shamael Al-Sharikh, a columnist for the Kuwaiti Times, in an article advocating that Guantanamo stay open, "because we are as much potential victims of terrorist attacks as [Americans] are."
As an example of where we might be headed after Boumediene, consider the situation in Britain. In June, Abu Qatada, a radical imam wanted in connection with bombing conspiracies in several countries, was released from jail after seven years of fighting his deportation. Qatada, whose recorded sermons were found in the Hamburg apartment of the 9/11 hijackers, was described by an immigration appeals commission as a "truly dangerous individual" who was "heavily involved, indeed at the center of terrorist activities associated with al-Qa'eda."
But judges in Britain will not extradite him to Jordan, where he was convicted in absentia, because his lawyers allege that the evidence against him might have been obtained by torture. Sending him packing under these circumstances, the court ruled, would violate the European Convention on Human Rights.
The result is a perverse situation in which, to protect the human rights of the man who issued a fatwa to kill the wives and children of Egyptian police and army officers, the British public pays a yearly tab of $1.1 million to cover Qatada's round-the-clock police surveillance, housing and welfare assistance for him, his wife and five children.
For those who scoff at the idea that U.S. judges would release a dangerous terrorist here, think again. As Attorney General Michael Mukasey pointed out in a speech earlier this month at the American Enterprise Institute, the Boumediene decision was vague on every detail but one. The ruling said that for habeas review to mean anything, the court must have the power to release. What do we do with a graduate of al Qaeda training camps who hasn't yet committed an act of violence? What do we do if no country will take him? If Congress doesn't intervene, the most difficult detainee cases may end up being administered by federal judges who are dismissive of concerns about enemy combatants returning to the battlefield.
"Courts guarantee an independent process, not an outcome," wrote John Coughenour, the federal judge who presided over the trial of "millennium bomber" Ahmad Ressam in a Washington Post op-ed just this Sunday. Yes, and that is precisely why Congress has an obligation to formulate the substance and parameters of that process. Judges do not make law or policy. The scope of their review is limited to the immediate case before them.
Unless Congress weighs in, judges -- unaccountable to the body politic -- will decide what standards of proof and rules of evidence will apply to these detainees, resulting in an ad hoc, case-by-case body of law which focuses on the rights of the detainees, not on the consequences for our war fighters who risk their lives to capture them. Since when do we leave it to judges to decide when and to what degree our troops are required to engage in police duties in the heat of battle?
Further, judges only rule on the applications made by the lawyers who come before them. Despite their rhetoric about "rule of law," attorneys are not charged with acting in furtherance of the national security interests of the public. Their obligation is to their clients alone, the detainees. Hence, we have witnessed the six-year campaign by Gitmo lawyers to pressure the U.S. government into releasing dangerous men before their cases come before a military tribunal or are heard in the federal courts.
David Cynamon, a senior attorney at Pillsbury Winthrop Putnam Shaw, is one of the lead lawyers negotiating the repatriation of the Kuwaiti detainees. In an email last fall to Pentagon officials, Mr. Cynamon expressed frustration with what he perceived as foot-dragging in the release of the last four Kuwaitis still held at Gitmo. He attached an exhibit which compared the unclassified information on all original 12 Kuwaiti detainees who were captured in Afghanistan. "I find it impossible to deduce from this chart," he wrote, "that the four who remain are any more (or less) [sic] dangerous than the ones who were returned." After Al-Ajmi's devastating suicide attack in Mosul, one hopes the Pentagon is giving his chart a second look.
Meanwhile, the habeas attorneys' effort to smear the United States and paint their clients as innocent victims continues. "Poems from Guantanamo" was taught this spring in an undergraduate course called "Writers in Exile" at City University of New York in Queens, a short distance from Ground Zero. The book's introduction states that the detainee poets "follow in the footsteps of prisoners who wrote in the Gulag, the Nazi concentration camps, and, closer to home, Japanese-American internment camps." One of the students, posting on the class blog, wrote of the detainees' plight, "Wow, I had no idea. For the first time in my life, I am ashamed to be seen as an American."
Your whole being and your heart will be captivated by this night, who drove the Romans to madness. You will forget everything about Rome and will live the life of faith in Islam.
Abdullah Salem Al-Ajmi, the detainee who wrote of turning the tables on his lawyer, Miranda, should haunt the dreams of every member of Congress.
Ms. Burlingame, a former attorney and a director of the National September 11 Memorial Foundation, is the sister of Charles F. "Chic" Burlingame III, the pilot of American Airlines flight 77, which was crashed into the Pentagon on Sept. 11, 2001.
See all of today's editorials and op-eds, plus video commentary, on Opinion Journal.
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Justice at Gitmo
By DAVID B. RIVKIN JR. and LEE A. CASEY
WSJ
August 1, 2008; Page A13
After years of litigation, the first military commission trial of the war on terror -- United States v. Hamdan -- is underway in Guantanamo Bay, Cuba. Don't believe the critics who say justice isn't being done.
Salim Ahmed Hamdan was captured by American and allied forces in Afghanistan. The government maintains -- and Hamdan has confirmed -- that he was Osama bin Laden's driver and bodyguard. Hamdan is charged with conspiracy to commit war crimes and providing material support for terrorism.
Some of the complaints about the trial are trivial, such as that the proceedings are not televised (neither, of course, are the Supreme Court's). Other complaints are irrelevant, such as the claim that reporters cannot move about the Guantanamo base without an escort (try wandering unescorted into the Oval Office if you are on the White House beat).
Then there are the suggestions that the trial atmosphere feels wrong (all those uniforms in the "jury" box), and that the trial is going too fast compared with civilian cases. Since these are trials by military commission, the uniforms should have been anticipated. A quicker pace is also typical of military proceeding. Unlike civilian trial judges, military judges don't need to juggle civil litigation in addition to criminal cases on their dockets.
The real question, of course, is whether Hamdan is getting due process, and whether his trial is fair. The answer is yes. Hamdan has an able team of defense lawyers determined to squeeze from the system every drop of procedural advantage. They have, for example, made an unsuccessful attempt to have his trial postponed until after he has had a hearing in the civilian courts. Although the Supreme Court ruled in June that Guantanamo detainees can seek "habeas corpus" review, Judge James Robertson -- appointed by President Bill Clinton to the federal district court in Washington, D.C. -- ruled that the military commission trial can go forward.
Second, the defense has argued that the evidence against Hamdan should be excluded because it was obtained through "coercion." This claim mostly involves rough treatment after his capture in Afghanistan (he was held by both Afghan and American forces) and his being questioned during his long detention at Guantanamo.
The trial judge -- a military officer as provided by law -- excluded Hamdan's statements from Afghanistan (where questioning was, at times, by armed interrogators) but very properly rejected the defense claim that merely being held without trial as an enemy combatant, subject to Guantanamo's rules and discipline, was impermissible coercion. Captured enemy combatants can be so held, noted the judge. He consequently gave "little weight to the coercive effect" supposedly inherent in being detained for long periods without access to friends and advisers. Thus was the "best interest of justice" admissibility standard approved by Congress in the 2006 Military Commissions Act applied, proving that uniformed judges will say no to both the prosecution and defense.
Pretrial motions resolved, the prosecution has presented a compelling case. By his own admissions, Hamdan was part of Osama bin Laden's inner circle, even if not in a very senior position. Witnesses state that Hamdan has admitted responsibility for preparing bin Laden's transportation for rapid movement in case of American attacks, and was also aware of the Sept. 11 attacks in advance.
Hamdan has also offered information on other al Qaeda operations and its field logistics -- including bin Laden's manner of travel and security escort. The evidence so far has also confirmed an interesting tidbit about bin Laden's thinking. Because of a lack of a vigorous U.S. military response to the 1998 U.S. Embassy bombings and the 2000 Cole bombing, bin Laden evidently came to believe that the U.S. would never actually come after him in Taliban-controlled Afghanistan.
Under the standards applied in previous wars, these facts -- unless disproved or rebutted by the defense -- would fully justify Hamdan's conviction as an unlawful enemy combatant and a person who has rendered material support to a terrorist organization. He may have been a driver, but one who was trained as a terrorist and provided essential security and logistics support for al Qaeda's commander in chief. He was no more a civilian, entitled to trial in civilian courts, than were Hitler's SS bodyguards.
Hamdan's trial is an important test for the system as a whole. It will be followed in short order by that of Omar Khadr, a Canadian citizen also captured in Afghanistan -- at the age of 15 -- and accused of killing an American military medic. After that, the trials of far more senior al Qaeda members will follow. That includes Khalid Sheik Mohammed, the mastermind of Sept. 11.
In short, based upon the military commission rules and actual practice of the Hamdan trial we've seen so far, the U.S. is according the unlawful enemy combatants at Guantanamo the fairest war-crimes trials in history. That's right, more due process at Gitmo than during the post-World War II Nuremberg tribunal and at least as much as in the more recent Hague tribunal proceedings -- both of which are routinely extolled by the critics of military commissions. But none of this seems to matter to the critics, who continue stubbornly to insist that only the civilian justice system is acceptable for the Guantanamo detainees.
The U.S. must continue the military commission system. Only military courts that provide a fair hearing and sufficient protection for national security information can ultimately provide justice to both the detainees and the American people.
Messrs. Rivkin and Casey, Washington attorneys, served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush.
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While I and many others question the true "Threat of Islam" to American shores; I mean they are not Japan or Germany
in WWII, they are not Russia with sufficient nuclear warheads during the Cold War, or even China, a growing superpower;
my real concern is the frightening erosion of our basic Civil Rights. The list in endless, but Hamdan's trial is but one example.
Innocent of conspiracy (no evidence) he was "convicted" and may be required to serve a life sentence for being
Bin Laden's chauffeur and driver. A truly terrible crime? Yet he already has served years in jail and suffered inhumane
treatment.
A trial??? Few of his basic rights that we take for granted were given to him. The interrogation itself was
admittedly fraught with improprieties and coercion. Witnesses were not produced. Basic rights were ignored.
One can go on and on....
However, perhaps more damning, military authorities made it clear that even if Hamdon had been acquitted of all charges
he would not have gained his freedom!!! "As an enemy combatant he can be incarcerated until the end of the so-called
War on Terror." And that will be when??? Truly unbelievable and sad.
Imagine if your son was involved. Imagine if your son was interrogated without basic rights and possibly tortured. And yet was
still found innocent, however you were told, "Sorry, he still can't go home until the "War on Terror" is over". Another words,
he may not be going home in this lifetime, yet he is innocent. What respect do you have for his jurors? For the system? For ????
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Imagine if your son was involved.
I'm going to hope that my son doesn't become chauffeur to a religious psychopath bent on the destruction of the western world...
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Tough job to quit I would think! :-D
And, let's say your son was found innocent of doing any wrong?
Should he still be kept as a prisoner???
That would be the case here...
Or if it was your son, wouldn't you want a FAIR trial for him?
Aren't we innocent until proven guilty?
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And, let's say your son was found innocent of doing any wrong?
Should he still be kept as a prisoner???
That would be the case here...
Or if it was your son, wouldn't you want a FAIR trial for him?
Aren't we innocent until proven guilty?
Earth's population: 6.684 billion
Guantanamo inmates: 270
Terrorist convictions: Somewhere around 15-20 (?)
If you've read my posts, you know I am a fairly liberal guy. But even I can handle rounding up 300-500 guys who have been involved in extremely questionable circumstances and putting them away for a while. We haven't seen a large scale internment of Muslims or a complete collapse of our judicial system/civil rights as we know it, so I'm not sweating it.
Fair trial? Who wouldn't want one? But as I say to my wife on a regular basis, the best way to keep out of jail/away from a courtroom/not on the news/beaten badly/made an example of is to NOT ACT LIKE AN IDIOT. Behave yourself and chances are the words "fair trail" won't have to enter your vocabulary...unless it's in an internet forum.
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Confederate soldiers captured by Union forces were held without habeas corpus rights, despite being US citizens captured on US soil.
Was this right or wrong?
Do you think the Clinton administration's attempts to indict al qaeda into submission was a successful policy?
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JDN:
Your criteria simply do not apply to a foreign battlefield.
BTW, this driver had a few missiles in the trunk of his car.
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GM; I can't answer for the Civil War or the American Indian wars either; hopefully we have evolved since then. And am not sure if Clinton was or could have been successful, but I do know Bush is a failure. My vote this year is anybody but...
Crafty; so then why doesn't the Geneva Convention then apply??? Etc. Etc. Etc. I think America is trying to have their cake and eat it too.
What the heck is an "enemy combatant"? I understand the term POW, that's fine, but an "enemy combatant"? "Enemy Combatant" seems like a POW with no rights. That is not how America does things...Or it shouldn't... but then we are back to Bush.
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JDN,
You might want to actually read the Geneva conventions before you cite them. Until now, the US has never applied the US constitution to prisoners of war, even legitimate enemy soldiers in compliance with the laws of war.
The first attack on the WTC was in 1993. Clinton was across the river in New Jersey when it happened and couldn't be bothered to visit NYC to review the damage done. Al Qaeda metastasized into the global threat we face today under Clinton's two terms, the DOJ not indicting bin Laden until late 1998. Look at the strings of attacks during Clinton's terms in office, leading up to 9/11. I'm not sure how you think returning to that would result in anything but the same results.
Last time I checked, Bush wasn't running again, so you couldn't vote for him if you wanted to anyway.
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JDN,
You might want to actually read the Geneva conventions before you cite them. Until now, the US has never applied the US constitution to prisoners of war, even legitimate enemy soldiers in compliance with the laws of war.
The first attack on the WTC was in 1993. Clinton was across the river in New Jersey when it happened and couldn't be bothered to visit NYC to review the damage done. Al Qaeda metastasized into the global threat we face today under Clinton's two terms, the DOJ not indicting bin Laden until late 1998. Look at the strings of attacks during Clinton's terms in office, leading up to 9/11. I'm not sure how you think returning to that would result in anything but the same results.
Last time I checked, Bush wasn't running again, so you couldn't vote for him if you wanted to anyway.
Yes, thank God Bush is not running. Frankly, he should be impeached, but it is more bother than it is worth.
Ahhhh and as for the Geneva Convention; didn't America sign this??? Isn't America the land of "justice"? Don't we demand that our enemies adhere to these high standards? Don't we act indignant if they don't? Aren't we supposedly "better than them?"
The Geneva Convention; frankly, I am not sure you have read it and definitely Bush has not read it. Interrogation techniques - pure torture, a travesty of justice. So many provisions of the Geneva Convention have been broken it is hard to count. Again, thank God our U.S. Supreme Court read it and has also read our constitution and has therefore ruled Bush's definition of "Enemy Combatant" to be a bad joke. Germany has termed our treatment of prisoners as "torture". Guantanamo has been called the "gulag of our times.". British Judges have called it, "a monstrous failure of justice." Numerous Medical Journals have demanded that our treatment of prisoners stop; terming it "torture". And on and on... When will we stop??? Soon, but only thanks to the world's indignation at our inhumane treatment.
Fairness??? The military acts as interrogators (often illegal), prosecutors, and defense counsel, judge, jury and executioner. NONE of this guarantees a fair trial. America - where has our justice and sense of right and wrong gone? I bet less than 5% of those held at Guantanamo will even be finally charged with a crime, much less found guilty. The other 95% are innocent by definition; they are just being tortured and held illegally for years and years away from their family and friends and they have done nothing wrong except be in the wrong place and the wrong time. I find it all rather sad.
We have forgotten the difference between right and wrong.
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JDN,
You might want to actually read the Geneva conventions before you cite them. Until now, the US has never applied the US constitution to prisoners of war, even legitimate enemy soldiers in compliance with the laws of war.
The first attack on the WTC was in 1993. Clinton was across the river in New Jersey when it happened and couldn't be bothered to visit NYC to review the damage done. Al Qaeda metastasized into the global threat we face today under Clinton's two terms, the DOJ not indicting bin Laden until late 1998. Look at the strings of attacks during Clinton's terms in office, leading up to 9/11. I'm not sure how you think returning to that would result in anything but the same results.
Last time I checked, Bush wasn't running again, so you couldn't vote for him if you wanted to anyway.
Yes, thank God Bush is not running. Frankly, he should be impeached, but it is more bother than it is worth.
Ahhhh and as for the Geneva Convention; didn't America sign this??? Isn't America the land of "justice"? Don't we demand that our enemies adhere to these high standards? Don't we act indignant if they don't? Aren't we supposedly "better than them?"
http://www.icrc.org/ihl.nsf/WebART/375-590007?OpenDocument
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Article [Display Introduction] [Display Full text] [Display articles] [Display commentaries]
Part I : General provisions
ARTICLE 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, incuding those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
B. The following shall likewise be treated as prisoners of war under the present Convention:
(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.
C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.
**Please explain how al qaeda would be covered by the definitions listed above.**
The Geneva Convention; frankly, I am not sure you have read it and definitely Bush has not read it. Interrogation techniques - pure torture, a travesty of justice. So many provisions of the Geneva Convention have been broken it is hard to count.
**Please cite a few, using the source documents.**
Again, thank God our U.S. Supreme Court read it and has also read our constitution and has therefore ruled Bush's definition of "Enemy Combatant" to be a bad joke. Germany has termed our treatment of prisoners as "torture". Guantanamo has been called the "gulag of our times.". British Judges have called it, "a monstrous failure of justice." Numerous Medical Journals have demanded that our treatment of prisoners stop; terming it "torture". And on and on... When will we stop??? Soon, but only thanks to the world's indignation at our inhumane treatment.
Fairness??? The military acts as interrogators (often illegal), prosecutors, and defense counsel, judge, jury and executioner. NONE of this guarantees a fair trial. America - where has our justice and sense of right and wrong gone? I bet less than 5% of those held at Guantanamo will even be finally charged with a crime, much less found guilty. The other 95% are innocent by definition; they are just being tortured and held illegally for years and years away from their family and friends and they have done nothing wrong except be in the wrong place and the wrong time. I find it all rather sad.
We have forgotten the difference between right and wrong.
**When and where in history has a war been fought that fits your vision of "fair and just"?**
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So why does nearly every industrialized CIVILIZED nation (these are our allies and friends) on this earth think our behavior is reprehensible, wrong, terribly wrong? Even our own U.S. Supreme Court said enough is enough! Our actions, our behavior is unconscionable.
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JDN,
Rather than trying to deflect, why don't you address my questions? You waived the Geneva Conventions flag, now back up your assertions or admit you can't.
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http://dictionary.reference.com/browse/unlawful%20combatant
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Webster's New Millennium™ Dictionary of English - Cite This Source - Share This
Main Entry: unlawful combatant
Part of Speech: n
Definition: an individual who violates the law by engaging in combat; an individual who is involved in but not authorized to take part in hostilities; also called illegal combatant, unprivileged combatant
Example: An unlawful combatant is someone who commits belligerent acts, but does not qualify under the Geneva Convention as a prisoner of war.
Webster's New Millennium™ Dictionary of English, Preview Edition (v 0.9.7)
Copyright © 2003-2008 Lexico Publishing Group, LLC
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http://writ.news.findlaw.com/dorf/20020123.html
WHAT IS AN "UNLAWFUL COMBATANT," AND WHY IT MATTERS:
The Status Of Detained Al Qaeda And Taliban Fighters
By MICHAEL C. DORF
Wednesday, Jan. 23, 2002
According to Defense Secretary Rumsfeld, the Taliban and al Qaeda fighters currently being held captive at the United States Naval Base at Guantanamo Bay, Cuba, are not prisoners of war, but "unlawful combatants." What's the difference?
The short answer is that a prisoner of war is entitled to the protections set forth in the 1949 Geneva Convention. In contrast, an unlawful combatant is a fighter who does not play by the accepted rules of war, and therefore does not qualify for the Convention's protections.
Buried within that short answer, however, are a host of complexities and troubling implications.
Are al Qaeda Fighters Prisoners of War?
First, what does it take to qualify as a prisoner of war? Article IV of the Geneva Convention states that members of irregular militias like al Qaeda qualify for prisoner-of-war status if their military organization satisfies four criteria.
The criteria are: "(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war."
Al Qaeda does not satisfy these conditions. Perhaps Osama bin Laden could be considered "a person responsible for his subordinates," although the cell structure of al Qaeda belies the notion of a chain of command. But in any event, al Qaeda members openly flout the remaining three conditions.
Al Qaeda members deliberately attempt to blend into the civilian population - violating the requirement of having a "fixed distinctive sign" and "carrying arms openly." Moreover, they target civilians, which violates the "laws and customs of war."
Thus, al Qaeda members need not be treated as prisoners of war.
Are Taliban Fighters Prisoners of War?
The question whether detained Taliban members qualify as prisoners of war under the Geneva Convention's test is more difficult - as one might instinctively think, given that the Taliban fighters resemble a traditional army to a greater extent than do the al Qaeda fighters, who come from a variety of different nations and principally attack civilians.
The Taliban was never recognized as the legitimate government of Afghanistan by the United Nations or the United States, and only a handful of countries ever established formal diplomatic relations with the Taliban. Nevertheless, despite its lack of formal recognition, the Taliban would still be entitled to the protections of the Geneva Convention if it satisfied the four criteria listed above.
Did it? To begin, the Taliban has, or at least formerly had, a tighter command structure than al Qaeda, suggesting it might satisfy the first criterion of "being commanded by a person responsible for his subordinates." However, Taliban members did not appear to satisfy the second and third criteria, for they did not wear uniforms that bore a "fixed distinctive sign recognizable at a distance," nor did they invariably "carry arms openly."
Should these facts disqualify them from prisoner-of-war status?
Until recently the Taliban was the actual (though not recognized) government of Afghanistan, and it was attacked as such by the United States, albeit in justifiable self-defense. If Taliban members did not wear distinctive uniforms before we attacked, one might think that they should not be faulted for failing to don such uniforms immediately once the shooting started.
But in the end, this argument is unpersuasive. The requirement of a distinctive sign is no mere technicality. Its object, like many of the laws of war, is to enable the enemy to distinguish combatants from civilians, and thus to minimize civilian casualties. Yet the Taliban made clear that it was not interested in complying with the letter or spirit of the law of war.
For example, when it still controlled Kabul, the Taliban hid military equipment among the civilian population. Furthermore, as the war unfolded, it became increasingly difficult to distinguish the Taliban from al Qaeda - which, as we have seen, clearly does not qualify to have its members treated as prisoners of war.
A Consequence of POW Status: No Tribunal Trials
Even if not technically prisoners of war, al Qaeda and Taliban captives still qualify for "humane treatment" under the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, a resolution adopted by the United Nations General Assembly in 1988.
Moreover, one might wonder, what is the harm in affording the captives somewhat better treatment than they are entitled to under international law? After all, the Geneva Convention hardly requires that prisoners of war be housed in four-star hotels.
The Administration's objection to affording al Qaeda and Taliban captives prisoner-of-war status probably has less to do with the conditions in which the captives are held than with what the Administration plans to do with them in the long term.
Under President Bush's military order of November 13, al Qaeda members and those who harbored them can be tried by military tribunals. The Supreme Court approved the use of such tribunals for unlawful combatants in the 1942 case of Ex Parte Quirin.
Most of the public discussion of the President's order and the Quirin case has centered on the question of when a defendant can be subject to the jurisdiction of a military tribunal rather than a civilian court. But whatever the answer to that question, Quirin takes for granted that only unlawful combatants can be tried by the sort of irregular tribunals at issue in that case and contemplated by the President's order.
Lawful combatants - that is, prisoners of war - are entitled to substantive and procedural protections not contemplated by Bush's order. Accordingly, the question of whether al Qaeda and Taliban fighters are prisoners of war or unlawful combatants turns out to matter a great deal, at least potentially.
Does the Guantanamo Detention Moot the Issue?
To be sure, American courts might not have occasion to decide the question whether al Qaeda and Taliban captives are in fact unlawful combatants. That is because another Supreme Court decision - the 1950 ruling in Johnson v. Eisentrager - holds that enemy aliens who have not entered the United States are not entitled to access to our courts.
Accordingly, so long as the al Qaeda and Taliban fighters are held at Guantanamo Bay and thus not deemed to have entered the U.S., their only route of appeal would appear to be within the Executive Branch. Put more bluntly, they will have only the procedural recourse the Administration allows them.
However, the applicability of Eisentrager to the present circumstances is itself open to question, for two reasons. First, in that case, the Court relied on the existence of a formal declaration of war and the fact that the German petitioners were citizens of a hostile sovereign power.
In contrast, in the present conflict, whether Congress's joint resolution authorizing the use of force counts as a declaration of war, and whether al Qaeda is sufficiently state-like to count as a foreign sovereign, are open questions.
Second, while Eisentrager holds that the Constitution permits the government to deny enemy aliens outside the U.S. access to our courts, federal statutes can be construed to afford such enemy aliens greater court access than the Constitution alone requires. Under that construction, the President's military order would be invalid. (Note that the President's order also purports to eliminate judicial review even for aliens within the United States, a position clearly at odds with statutory and constitutional law, but one that is not directly relevant to the fate of the Guantanamo Bay captives.)
For these two reasons, Eisentrager's application to the present circumstances is uncertain. Accordingly, it is understandable that the Administration would be eager to classify those captives it plans to try by military commission as unlawful combatants.
If the captives are unlawful combatants, they fall within the rule of Quirin. And if so, it does not matter whether they also fall within the rule of Eisentrager: If they do not, they are entitled to habeas corpus review, but a court entertaining their habeas corpus petitions would be obliged to uphold their convictions under Quirin.
Another Consequence of POW Status: Repatriation
There is a further reason why the Administration is eager to deny prisoner-of-war status to the al Qaeda and Taliban fighters. Article 118 of the Geneva Convention requires that prisoners of war be "repatriated without delay after the cessation of active hostilities." Thus, if the captives are prisoners of war, they must eventually be returned to their home countries.
That prospect is troubling. At the end of a war between conventional foes, it is expected that repatriated fighters will resume their civilian lives. Individual veterans might continue to harbor ill will towards their former enemies, but for the most part, peace between nations tamps down such feelings.
But there is good reason to worry that Taliban and especially al Qaeda fighters will not so readily have a change of heart. Members of al Qaeda do not act out of patriotic duty to obey the commands of a military leader, but out of an ideology that instructs them to attack and kill American civilians as a means of entering the kingdom of heaven. It is doubtful that any formal cessation of hostilities would lead them to abandon what they regard as a jihad.
Moreover, unlike traditional soldiers, al Qaeda members do not need an army in order to act. As we have learned, they can act in small groups or even individually. For this reason, too, repatriation seems far more dangerous for an al Qaeda member than for a traditional soldier.
War Without End: Indefinite Detentions?
The truth is that whether we try them in civilian courts, courts martial, ad hoc military tribunals, or not at all, the al Qaeda and at least some of the Taliban captives may be too dangerous ever to be released. Assuming that many or most of them will not be subject to the death penalty, that commits the United States to detaining them indefinitely.
The Administration's response to this problem is to deem the Taliban and al Qaeda fighters unlawful combatants who are not entitled to anything better than indefinite detention.
As we have seen, the contention that these fighters are unlawful combatants is based upon a plausible reading of the Geneva Convention. Indeed, it would be difficult to come to any other conclusion when applying the Geneva Convention's four-part test to al Qaeda fighters.
Nevertheless, treating the al Qaeda and Taliban captives as prisoners of war, whether or not they are legally entitled to the status, would be less risky than it may at first appear. So long as al Qaeda and its deadly ideology exists, we cannot say that there has been, in the words of the Geneva Convention, a "cessation of active hostilities," entitling the captives to be released. In that respect, as in others, this is a different type of war indeed.
Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.
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For the record, I think the Bush team has gone places with interrogation techniques that I think both wrong and unsound. I also think that there has been a tremendous amount of dishonest and disingenuous hyperventilating by the Dems and the MSM. The cacophony generated by them leads good people such as JDN to assume that with so much smoke, there must be a lot of fire-- but if JDN is willing to reason with GM I think by the end of the conversation he may find that his thinking has changed in some respects. The Dorf piece he has posted answers quite directly many of the assertions/accusations that you raise. What say you?
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What do I say? Actually, yesterday morning after a great deal of time I had just about finished composing and was about to post an eloquent :-D and thorough response to GM's request for further support (I usually write versus cut and paste) when I pushed the wrong button (I just bought a iMac) and it disappeared. :-o
Not happy! Had to go to work and again today, but I will try to give a brief summary of my position.
I suppose we could argue the legalities of the issue, but I am not an attorney. Rather I tend to think/expect America to take the high road; I take pride that we are a moral country and try to do the right thing albeit not always "right".
While I usually don't care what other's think, there is a limit. When Germany terms our treatment at Guantanamo as "torture", when England's Parliament says "it is a monstrous failure of our times" and it has been called the "gulag of our times" I begin to wonder.
The impartial International Red Cross has stated that, "Every person in enemy hands MUST have some status under international law; he is either a POW and as such covered by the 3rd Convention.... or a civilian covered by the 4th convention..." There is NO intermediate status; NOBODY in enemy hands can fall outside the law." Doesn't this simply make common sense???
I am not defending these individuals. If they are guilty of high crimes, string them up for all I care. BUT, there should be presumption of innocence. They should be given fair treatment, not tortured. And frankly, if they are found innocent, let go in a reasonable amount of time - not when the war on terror is over. I think even you, GM, given your writings might not think this will happen in our lifetime. Yet at this time over 400 individuals are being held, yet only two or three have been tried. I am willing to bet that less than 5% of those being held will be brought to trial and convicted of a serious crime. The other 95% are wrongly and illegally being held in my opinion.
"Enemy Combatant", "Freedom Fighter", "American Revolutionary War Fighter"; I don't legally know exactly what's the difference. And one dictionary's answer is different than another. But if it walks like duck, quacks like a duck, probably it is a POW duck :-D
Even our U.S. Supreme Court said enough is enough in the recent Boumedience v. Bush case stating that Guantanamo captives were entitled to the protection of the U.S. Constitution and described the CSR Tribunals as "inadequate" (legalize for wrong) and invoked the Geneva Convention.
Back to my Duck, I mean if you have to fly prisoners halfway around the world to a little piece of land in Cuba that most people had never heard of, doesn't that force you to ask the question, "Why?" What are you hiding? I mean if it's legit, simply build a prison in CA, right? And if they committed a crime, I have confident that my fellow Californians will quickly find them guilty and sentence them appropriately. It's more honest than our military which hides evidence, acts as interrogators, prosecutors and defense counsel, judge, and jury and finally executioner. This is not a fair trial; it is a travesty.
And torture, our treatment of these individuals is simply wrong. And it's not the America I know and love.
I am passionate for our individual rights; they must be protected and applied to all. England has said, "one cannot fight violations of international law by committing further violations of international law." Because al Qaeda et al are often inhumane does that justify our losing our freedoms and becoming inhumane? I hope not.
I don't need to be a lawyer to know it's simply wrong. In my opinion they should be given fair and humane (Geneva Convention) treatment. Further, if innocent, let go. If guilty, do as you will. But be fair and just about it.
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What do I say? Actually, yesterday morning after a great deal of time I had just about finished composing and was about to post an eloquent :-D and thorough response to GM's request for further support (I usually write versus cut and paste) when I pushed the wrong button (I just bought a iMac) and it disappeared. :-o
Not happy! Had to go to work and again today, but I will try to give a brief summary of my position.
I suppose we could argue the legalities of the issue, but I am not an attorney. Rather I tend to think/expect America to take the high road; I take pride that we are a moral country and try to do the right thing albeit not always "right".
**Part of the right thing to do is to protect this nation against existential threats.**
While I usually don't care what other's think, there is a limit. When Germany terms our treatment at Guantanamo as "torture", when England's Parliament says "it is a monstrous failure of our times" and it has been called the "gulag of our times" I begin to wonder.
**Did Germany as a nation say that, or was it a German politician? Was that from the British parliament or a member of parliament? Europeans love to sneer and condemn America, often while drinking a coke, eating a cheeseburger as they wait in line to see a Hollywood blockbuster. The only time their voices get louder is when they need us to rescue them. Give the Europeans the same moral status as you do a teenage kid that complains his dad is a fascist because he make him clean his room and mow the lawn.
Also, look up the statements from politicians that condemned the US to see if they've made any statement condemning North Korea, or China or Cuba. Amazing how the left seems not to be nearly as offended by real totalitarians that do real torture. Also vet them against the list of people implicated in the "oil for food scandal" the MSM declined to do much reporting on.**
The impartial International Red Cross has stated that, "Every person in enemy hands MUST have some status under international law; he is either a POW and as such covered by the 3rd Convention.... or a civilian covered by the 4th convention..." There is NO intermediate status; NOBODY in enemy hands can fall outside the law." Doesn't this simply make common sense???
**No, it doesn't. Law should be structured in such a manner as to reward lawful behavior and to punish unlawful behavior. Treating jihadists as if they were honorable enemy soldiers or run of the mill domestic criminals demeans both soldiers and ordinary domestic criminals as well as setting us up for failure. The enemy has studied us closely and anticipates using our cultural predilection for legal process as a weapon against us. I suggest you read some of their training manuals to see this for yourself.**
I am not defending these individuals. If they are guilty of high crimes, string them up for all I care. BUT, there should be presumption of innocence.
**I think if you had any firsthand knowledge of the difficulties and expense of just putting one domestic criminal through the criminal justice system, you'd rethink your position. CSI: Fallujah isn't practical or realistic. Our troops operate under strict rules of engagement as it is, turning them in cops while operating under battlefield conditions is fantasy.**
They should be given fair treatment, not tortured.
**Define "torture".**
And frankly, if they are found innocent, let go in a reasonable amount of time - not when the war on terror is over.
**Are you aware of those that we have released that have returned to the battlefield? Does returning captured enemies to fight again make any kind of sense?**
I think even you, GM, given your writings might not think this will happen in our lifetime.
**The war we are fighting originally started in the 7th century, the current portion started in 1979. So I indeed do not think we'll be seeing the end anytime soon.**
Yet at this time over 400 individuals are being held, yet only two or three have been tried. I am willing to bet that less than 5% of those being held will be brought to trial and convicted of a serious crime. The other 95% are wrongly and illegally being held in my opinion.
**You opinion is based on what, exactly?**
"Enemy Combatant", "Freedom Fighter", "American Revolutionary War Fighter"; I don't legally know exactly what's the difference. And one dictionary's answer is different than another. But if it walks like duck, quacks like a duck, probably it is a POW duck :-D
Even our U.S. Supreme Court said enough is enough in the recent Boumedience v. Bush case stating that Guantanamo captives were entitled to the protection of the U.S. Constitution and described the CSR Tribunals as "inadequate" (legalize for wrong) and invoked the Geneva Convention.
Back to my Duck, I mean if you have to fly prisoners halfway around the world to a little piece of land in Cuba that most people had never heard of, doesn't that force you to ask the question, "Why?" What are you hiding? I mean if it's legit, simply build a prison in CA, right? And if they committed a crime, I have confident that my fellow Californians will quickly find them guilty and sentence them appropriately.
**Yeah, i'll be sure to ask OJ or Robert Blake how great California juries are.**
It's more honest than our military which hides evidence, acts as interrogators, prosecutors and defense counsel, judge, and jury and finally executioner.
**Really? What evidence has been hidden? Please cite your sources.**
This is not a fair trial; it is a travesty.
And torture, our treatment of these individuals is simply wrong. And it's not the America I know and love.
**Again, define "torture". Who are you alleging was tortured, when and where?**
I am passionate for our individual rights; they must be protected and applied to all. England has said, "one cannot fight violations of international law by committing further violations of international law." Because al Qaeda et al are often inhumane does that justify our losing our freedoms and becoming inhumane? I hope not.
I don't need to be a lawyer to know it's simply wrong. In my opinion they should be given fair and humane (Geneva Convention) treatment. Further, if innocent, let go. If guilty, do as you will. But be fair and just about it.
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Yemen Observer: http://www.yobserver.com
I’m born again, says freed Gitmo detainee
Posted in: Front Page
Written By: Nasser Arrabyee
Article Date: Oct 22, 2007 - 8:58:57 AM
Sadeq Mohammed Saeed returned home to Ibb after nearly 6 years.
“I’m still a stranger in this world, I’m a new born,” said the 23-year old Sadeq Mohammed Saeed when he arrived home after a long and torturous detainment in Guantanamo Bay detention center. Sadeq was one of four Yemeni men who were returned to their families on October 12, 2007, after spending about six years in the notorious detention camp.
Hours after arriving at his family home in Ibb city, Sadeq was in constant motion; moving about the house to welcome and hug the many visitors and relatives who came to greet him and show him respect. His visitors included ex-Guantanamo detainees, relatives of other detainees and young people who had been to Afghanistan for “Jihad”. Sadeq’s brothers made efforts to introduce him to those who he did not know or those who he no longer remembered.
As a journalist, Sadeq did not want to speak to me at first, but he eventually relented after encouragement from his brothers. With his long beard and smart Yemeni clothing, Sadeq spoke clearly and concisely, focusing on what he referred to as a “letter to the Americans and the world”. According to Sadeq since leaving their families he and his companions had been performing a holy duty, or Jihad, and he vowed that they would continue to do so for as long as they lived.
“I traveled to Pakistan and from there to Afghanistan where I joined one of the Taliban battle lines, May Allah support them to protect Islam, and then what happened, happened,” he said. He did not speak about personal physical abuse in the detention center; instead he concentrated on the religious abuses, which he claims all detainees witnessed.
“The abuses were religious abuses, reviling God, the Prophet Mohammed and his companions and the believers. Some brothers were exposed to psychological and physical torture because they are Muslims. There were a lot of abuses and I don’t remember them but it is enough to say there were religious abuses and reviling Allah, his prophet and the believers,” he said.
When asked what he plans to do now, he answered simply that he “does not know.” “I can’t say anything right now. I’m still a stranger in this land, I’m a new-born, I can’t say I can do this or that,” said Sadeq who traveled to Afghanistan for Jihad before completing secondary school. However, one of Sadeq’s brothers, a former jihadist in Afghanistan and current Islamic activist, spoke on his brother behalf, clarifying his and his bother’s message to the “Americans and the world”. The brother, Rashad Mohammed Saeed (a.k.a. Abu al-Feda) said that all young people who went for “Jihad” in Afghanistan and elsewhere would continue to fight the “injustice” and they would achieve victory at the end like the prophet Joseph who was empowered and achieved victory after a series of sufferings.
“Let the Americans know that these [jihadists] are respected and highly welcomed in their nations and they are not killers or criminals,” Abu al-Feda addressed a crowd of people who came to celebrate the return of Sadeq.
“I would say on behalf of my brother and all other brothers [detainees] that they have a message and the one who has a message has to fulfill it anywhere. The Prophet Joseph was put in prison and he was innocent, but he had a message,” said Abu al-Feda who is currently a mosque speaker in Ibb city. “Are many lords differing among themselves better, or Allah, the One supreme and irresistible,” he recited from Quran.
“They will be preachers, teaching those who do not know, giving clothes to naked, feeding the hungry, defending the underdogs, returning rights to the owners, protecting all young and old, men and women, and would keep so until victory comes,” he said in reference to the returning detainees .
Abu al-Feda, who does not hesitate to announce his support for the Taliban, Al Qaeda and its leader Osama bin Laden, advised the American people to revolt against the White House administration, which he said, “spends billions of dollars to destroy the Taliban and Al Qaeda while they are getting stronger and stronger.”
“As the Taliban and Al Qaeda were the reason behind making an international alliance to topple the regimes in Afghanistan and Iraq, the same two [Taliban and Al Qaeda] would be the main tool of disengagement from this alliance,” said Abu al-Feda who was a prominent politician with the Taliban before he returning to Yemen in 2000 where he was imprisoned for two years. He was released on the condition that he does not participate in any armed activity.
“The Taliban and Al Qaeda are not killers and bloodsuckers, they have a strategic project with long term goals,” he said. “But I’m also calling for dialogue and respect of rights and freedoms for all, and I’m against violence and coercion.”
Saqed’s family said they are currently consulting with American lawyers and human rights activists to file a law suit against the American government to demand fair compensation for the damages inflicted on their son who lost one of his eyes because of inadequate treatment.
Sadeq, who was detained in a hospital in Afghanistan after being injured in a battle after September 11th, said he did not know why the Americans arrested him and why they released him now.
“The only reason I know for being detained is that I’m Muslim, and I do not know any other thing. Now I do not know why they released me. This is at the hand of Allah.” He speculated.
Sadeq said he has not forgotten to pray for the other inmates who are still languishing in Guantanamo.
“I pray to Allah to make all my brothers in Guantanamo patient, they are always in our hearts, we will never forget them, they were arrested in the cause of Allah, and were looking for martyrdom and I pray to Allah to help them,” he said.
According to official American and Yemeni documents about a third (94) of the 330 remaining detainees in Guantanamo are from Yemen. American authorities have released a further 13 Yemeni detainees.
Three other detainees who were released on October 12th after three months in a Yemeni prison are: Fawaz Noman Hamoud Mahdi, Hani Abdu Mulah Shulan, and Ali Muhsen Saleh.
The only detainee remaining in a Yemeni prison is Ali Ahmed Nasser al-Kazmi who was released by American authorities in September 2007.
The Yemeni Minister of Human Rights, Dr. Huda Alban promised in an interview with Yemen Observer that he too would be released soon.
“I contacted the security officials about al-Kazmi and they told me they would refer him to the prosecution soon for procedures. I will follow up the case until he is released,” said Dr. Alban whose office received an appeal from the family of al-Kazmi for the release of their son on Sunday.
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Pentagon: Ex-detainees returning to fight
Story Highlights
Pentagon: Man freed from Guantanamo was suicide bomber in Iraq last month
More than 10 ex-detainees have been killed or captured in fighting, officials say
More than 500 have been released from Guantanamo; about 270 still held
From Mike Mount
CNN Pentagon Producer
WASHINGTON (CNN) -- A Kuwaiti man released from U.S. custody at the Guantanamo Bay Naval Base in 2005 blew himself up in a suicide attack in Iraq last month, Pentagon officials said Wednesday.
Abdullah Saleh al-Ajmi was one of two Kuwaitis who took part in a suicide attack in Mosul on April 26, the officials said. Records show that an attack in Mosul that day targeted an Iraqi police patrol and left six people dead, including two police officers.
An announcement on a jihadist Web site earlier this month declared that al-Ajmi was one of the "heroes" who carried out the Mosul operation. A second man from Kuwait also took part in the suicide attack, the Web site said.
Pentagon officials who had been keeping track of al-Ajmi said they were aware he had left Kuwait for Syria, a launching ground for terrorists into Iraq.
A video posted on various jihadist Web sites shows a number of images of al-Ajmi, followed by text reading, "May God have mercy on you Abdullah al-Ajmi. I send you a warm greeting O you martyr, O you hero, O you, a man in a time where only few men are left."
U.S. military records of Guantanamo detainees indicate that a man with the same name and nationality was held at the Cuban prison.
Those records said al-Ajmi, 29, was picked up in Afghanistan as he tried to enter Pakistan after the 2001 U.S. invasion. He claimed to have fought for the Taliban, the records show, and said he fought in a number of battles against the Northern Alliance. Watch a firefight in Afghanistan »
Though he was never charged with any crime, al-Ajmi was held at Guantanamo through 2005. Military documents show he later claimed that his statements about fighting for the Taliban were made after he was threatened while in U.S. custody. He asserted that he was in Afghanistan to study the Quran.
Al-Ajmi was transferred to the custody of Kuwaiti authorities in November 2005, with four other Kuwaitis, and was released after a trial there, according to Pentagon officials.
Al-Ajmi is not the first former Guantanamo detainee to reportedly return to the battlefield after being released. Pentagon officials say there are more than 10 people once held by the U.S. at Guantanamo who have been killed or captured in fighting after being released from the detention facility.
"Our reports indicate that a number of former [Guantanamo Bay] detainees have taken part in anti-coalition militant activities after leaving U.S. detention. Some have subsequently been killed in combat," said Cmdr. Jeff Gordon, a Pentagon spokesman.
Documents provided by the Pentagon show other former detainees returning to the battlefield, including Abdullah Mahsud, who was released from Guantanamo in 2004. He returned to Afghanistan, where he became a militant leader in the Mahsud tribe in southern Waziristan, the documents said.
"We have since discovered that he had been associated with the Taliban since his teen years and has been described as an al Qaeda-linked facilitator.
"In mid-October 2004, Mahsud directed the kidnapping of two Chinese engineers in Pakistan. During rescue operations by Pakistani forces, a kidnapper shot one of the hostages. Five of the kidnappers were killed. Mahsud was not among them," the documents provided by the Pentagon said.
"As these facts illustrate, there is an implied future risk to U.S. and allied interests with every detainee who is released or transferred from Guantanamo," Gordon said.
Reports of former detainees returning to the battlefield show they are dedicated to their cause and have been trained to be deceptive, the Pentagon officials said, but such factors will not prevent the release of other detainees from Guantanamo Bay.
Of the more than 500 detainees released from Guantanamo since the detention camp was opened in 2002, 38 have been stripped of their "enemy combatant" status and determined to pose no future threat to the United States. The remaining 462 were repatriated to home countries or resettled to third-party countries and still considered a threat, Pentagon records show.
Some countries have since released those detainees back into the public, according to various reports.
The United States is still holding about 65 detainees scheduled to be released to their home governments. But before that can happen, the United States has to get assurances the detainees will not be persecuted or harmed when they arrive home, Pentagon officials have said.
"We have no desire to be the world's jailer, which is why the 500 were allowed to depart," Gordon said.
There are about 270 detainees still held at the U.S. prison camp in Cuba.
All AboutGuantanamo Bay • War and Conflict • Iraq • Afghanistan
Find this article at:
http://www.cnn.com/2008/WORLD/meast/05/07/gitmo.bomber
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http://www.defenselink.mil/news/newsarticle.aspx?id=16270
Al Qaeda Manual Drives Detainee Behavior at Guantanamo Bay
By Donna Miles
American Forces Press Service
WASHINGTON, June 29, 2005 – If you're a Muslim extremist captured while fighting your holy war against "infidels," avoid revealing information at all costs, don't give your real name and claim that you were mistreated or tortured during your detention.
This instruction comes straight from the pages of an official al Qaeda training manual, and officials at the detention facility at Naval Station Guantanamo Bay, Cuba, say they see clear evidence that detainees are well-versed in its contents.
Police in Manchester, England, discovered the manual, which has come to be known as the "Manchester document," in 2000 while searching computer files found in the home of a known al Qaeda member. The contents were introduced as evidence into the 2001 trial of terrorists who bombed the U.S. embassies in Tanzania and Kenya in 1998.
The FBI translated the document into English, and it is posted on the Justice Department's Web site.
The 18-chapter manual provides a detailed window into al Qaeda's network and its procedures for waging jihad - from conducting surveillance operations to carrying out assassinations to working with forged documents.
The closing chapter teaches al Qaeda operatives how to operate in a prison or detention center. It directs detainees to "insist on proving that torture was inflicted" and to "complain of mistreatment while in prison."
Chapter 17 instructs them to "be careful not to give the enemy any vital information" during interrogations.
Another section of the manual directs commanders to teach their operatives what to say if they're captured, and to explain it "more than once to ensure that they have assimilated it." To reinforce the message, it tells commanders to have operatives "explain it back to the commander."
And at the Guantanamo Bay detention center, detainees take this instruction to heart. Many of the more than 500 detainees are "uncooperative" in providing intelligence, Army Brig. Gen. Jay Hood, commander of Joint Task Force Guantanamo, told military analysts who traveled to the facility June 24 and reiterated today during a hearing before the House Armed Services Committee.
Some detainees have never uttered a single word during more than three years of interrogation. Others give false names or refuse to offer their real names.
This can prove challenging for interrogators at the facility, because many detainees "follow the al Qaeda SOP (standard operating procedures) to the T," according to Army Col. John Hadjis, chief of staff for Joint Task Force Guantanamo.
Officials say they see evidence of the al Qaeda-directed misinformation campaign in allegations of detainee abuse and mishandling of the Koran at Guantanamo Bay.
Defense Secretary Donald H. Rumsfeld expressed frustration over this effort during a June 21 interview on the "Tony Snow Show."
"These detainees are trained to lie, they're trained to say they were tortured, and the minute we release them or the minute they get a lawyer, very frequently they'll go out and they will announce that they've been tortured," Rumsfeld said.
The media jumps on these claims, reporting them as "another example of torture," the secretary said, "when in fact, (terrorists have) been trained to do that, and their training manual says so."
During a February 2004 Pentagon news conference, a DoD official said new information provided by detainees during questioning is analyzed to determine its reliability.
"Unfortunately, many detainees are deceptive and prefer to conceal their identifies and their actions," said Paul Butler, principal deputy assistant secretary for special operations and low-intensity conflict.
Butler said the Manchester document includes "a large section which teaches al Qaeda operatives counterinterrogation techniques: how to lie, how to minimize your role."
The document, he said, has surfaced in various locations, including Afghanistan.
The manual's preface offers a chilling reminder of the mentality that drives al Qaeda disciples and the lengths they will go to for their cause.
"The confrontation that we are calling for ... does not know Socratic debates, ... Platonic ideals ... nor Aristotelian diplomacy," its opening pages read. "But it knows the dialogue of bullets, the ideals of assassination, bombing and destruction, and the diplomacy of the cannon and machine gun."
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http://www.pbs.org/wgbh/pages/frontline/shows/network/alqaeda/manual.html
Guidelines for Beating and Killing Hostages: Religious scholars have permitted beating. They use a tradition explained in Imam Mosallem's manuscript, who quotes Thabit Ibn Ans that Allah's prophet - Allah bless and keep him - sought counsel when he was informed about Abou Soufian's arrival. Abou Bakr and Omar spoke, yet he [the prophet] did not listen. Saad Ibn Ibada said, "Do you want us, O Allah's prophet, who controls my life? If you order us to subdue the camel we would do it, or beat and follow them to Al-Ghimad lakes (5-day trip beyond Mecca), we would do it, too. "The prophet - Allah bless and keep him - called on the people, who then descended on Badr. They were met by Kureish camels carrying water. Among their takers was a young black [slave] man belonging to the Al-Hajjaj clan. They took him [as hostage]. The companions of the prophet - Allah bless and keep him - started asking him about Abou Sofian and his companions. He first said, "I know nothing about Abou Soufian but I know about Abou Jahl, Atba, Sheiba, and Omaya Ibn Khalaf. "But when they beat him he said, "O yes, I will tell you. This is the news of Abou Soufian..." Meanwhile, the prophet - Allah bless and keep him -, who was praying, started to depart saying, "Strike him if he tells you the truth and release him if he lies." Then he said, "That is the death of someone [the hostage]." He said that in the presence of his companions and while moving his hand on the ground.
In this tradition, we find permission to interrogate the hostage for the purpose of obtaining information. It is permitted to strike the nonbeliever who has no covenant until he reveals the news, information, and secrets of his people.
The religious scholars have also permitted the killing of a hostage if he insists on withholding information from Moslems. They permitted his killing so that he would not inform his people of what he learned about the Muslim condition, number, and secrets. In the Honein attack, after one of the spies learned about the Muslims kindness and weakness then fled, the prophet - Allah bless and keep him - permitted [shedding] his blood and said, "Find and kill him." Salma Ibn Al-Akwaa followed, caught, and killed him.
The scholars have also permitted the exchange of hostages for money, services, and expertise, as well as secrets of the enemy 's army, plans, and numbers. After the Badr attack, the prophet - Allah bless and keep him - showed favor to some hostages, like the poet Abou Izza, by exchanging most of them for money. The rest were released for providing services and expertise to the Muslims.
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PRISONS AND DETENTION CENTERS
IF AN INDICTMENT IS ISSUED AND THE TRIAL BEGINS, THE BROTHER HAS TO PAY ATTENTION TO THE FOLLOWING:
At the beginning of the trial, once more the brothers must insist on proving that torture was inflicted on them by State Security [investigators] before the judge.
Complain [to the court] of mistreatment while in prison.
Make arrangements for the brother's defense with the attorney, whether he was retained by the brother 's family or court-appointed.
The brother has to do his best to know the names of the state security officers, who participated in his torture and mention their names to the judge. [These names may be obtained from brothers who had to deal with those officers in previous cases.]
Some brothers may tell and may be lured by the state security investigators to testify against the brothers [i.e. affirmation witness], either by not keeping them together in the same prison during the trials, or by letting them talk to the media. In this case, they have to be treated gently, and should be offered good advice, good treatment, and pray that God may guide them.
During the trial, the court has to be notified of any mistreatment of the brothers inside the prison.
It is possible to resort to a hunger strike, but it is a tactic that can either succeed or fail.
Take advantage of visits to communicate with brothers outside prison and exchange information that may be helpful to them in their work outside prison [according to what occurred during the investigations]. The importance of mastering the art of hiding messages is self evident here.
- When the brothers are transported from and to the prison [on their way to the court] they should shout Islamic slogans out loud from inside the prison cars to impress upon the people and their family the need to support Islam.
- Inside the prison, the brother should not accept any work that may belittle or demean him or his brothers, such as the cleaning of the prison bathrooms or hallways.
- The brothers should create an Islamic program for themselves inside the prison, as well as recreational and educational ones, etc.
- The brother in prison should be a role model in selflessness. Brothers should also pay attention to each others needs and should help each other and unite vis a vis the prison officers.
- The brothers must take advantage of their presence in prison for obeying and worshiping [God] and memorizing the Qora'an, etc. This is in addition to all guidelines and procedures that were contained in the lesson on interrogation and investigation. Lastly, each of us has to understand that we don't achieve victory against our enemies through these actions and security procedures. Rather, victory is achieved by obeying Almighty and Glorious God and because of their many sins. Every brother has to be careful so as not to commit sins and everyone of us has to do his best in obeying Almighty God, Who said in his Holy Book: "We will, without doubt. help Our messengers and those who believe (both) in this world's life and the one Day when the Witnesses will stand forth." May God guide us.
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http://www.jcpa.org/jl/vp508.htm
Jerusalem Viewpoints
No. 508 6 Kislev 5764 / 1 December 2003
AL-QAEDA'S INTELLECTUAL LEGACY:
NEW RADICAL ISLAMIC THINKING
JUSTIFYING THE GENOCIDE OF INFIDELS
Jonathan D. Halevi
The Islamic victory over the USSR in Afghanistan, the creation of the al-Qaeda global network, and the spread of Islam in many Western countries are seen as signs of an Islamic awakening that from the radical Islamist perspective may lead to the restoration of Islam as the world's most dominant power.
In this emerging world order, Christians and Jews are no longer protected minorities under Islam. As a result, there is a dangerous trend among militant Islamist clerical authorities, especially from Saudi Arabia, justifying not only acts of terrorism against individuals, but also mass murder against whole groups of people regarded as infidels. Their call for the complete extermination of peoples means they have moved ideologically toward the justification of genocide.
Jihad against America is the realization of "the right of self-defense" in retaliation for the terrorist war waged by the United States against the nation of Islam. Based on the Islamic principle, one al-Qaeda leader argues that Muslims have the right to kill four million Americans, while a Saudi scholar argues for killing ten million.
The citizens in democratic Western countries become full participants in governmental decision-making by voting in elections and therefore they are no longer considered "non-combatants." Democracy is a prohibited innovation that contradicts Islamic values and embodies a new heretical religion.
An official al-Qaeda publication presents a new, comprehensive concept of total extermination of Islam's enemies. Al-Qaeda's Saudi clerics are also having a growing influence on other militant groups, from Hamas to Chechen groups to the mujahideen in western Iraq: their legal rulings appear on the websites of these organizations in Arabic.
There has only been a partial moderation of these trends as a byproduct of Saudi Arabia's internal struggle with al-Qaeda since May 12, 2003; some clerics have called for discontinuing the practice of takfir - branding Muslims as infidels worthy of destruction. But they have not altered their harsh doctrine against Christians and Jews.
Seeing the West as "God's Enemy"
Global terrorism sprouted and thrived in the strongholds of radical Islam. Islamic scholar Bernard Lewis, in "The Roots of Muslim Rage,"1 explains the rise of Islamic radicalism and the increasing hatred of the West as a response to Western superiority and to the undermining of Islam's authority by Western culture. The Islamic hatred is, according to Lewis, an outcome of the collision between the Western and Islamic civilizations and "an Islamic historical response to secularism and the Jewish-Christian heritage." Lewis' approach provides an essential interpretation of the roots of the current clash of civilizations, but it lacks a reference to the implications of the accumulating hatred for the West, which is viewed by many Muslims as "God's enemy."
The present-day radical Islamic outburst against Western civilization's hegemony emanates from a perception of achievement: the Islamic victory over the USSR in Afghanistan, the establishment of Taliban rule, the creation of the al-Qaeda global network, and the spread of Islam in many Western countries. These are seen as signs of an Islamic awakening that may lead in the twenty-first century to the restoration of the glory of Islam as the world's most dominant power.
In this context, the radical Islamic struggle against "God's enemies" has brought about a significant change in traditional Islamic attitudes toward the protected religions - Christianity and Judaism. During the golden age of Islam, in most cases Islamic regimes treated Christians and Jews with tolerance for being monotheists like themselves. They were considered ahl al-dhimma, non-Muslim monotheistic believers who had the privilege to be under the protection of Islamic rule, although some humiliating laws were imposed on them (payment of a head tax; synagogues and churches had to be built lower than mosques, etc.). The destiny of infidels and polytheists (those who attribute associates to God) under Islamic rule, however, was either conversion to Islam or execution.
The End of Protected Status for Christians and Jews
In recent years, radical Islamic scholars have renounced the privileges that Christians and Jews had enjoyed under Islamic rule and denied their status as ahl al-dhimma, accusing them of crimes against Islam and deviation of faith in God by attributing associates to God. This opened the way to justifying mass killing of Christians and Jews under the flag of jihad for the sake of Allah.
The roots of radical Islam's denial of protected status for Christians may be found in the long-standing, accumulated hatred of the U.S. and other Western countries as leaders of the Christian world. The U.S. is viewed as a global infidel force menacing Islam with its ideology, social and economic values, and hostile policy, seen in terms of a modern Crusader war against Islam. Abd al-Aziz al-Jarbou', a prominent radical Saudi scholar, lashed out at the U.S. in his book The Foundations of the Legality of the Destruction That Befell America, presenting a thesis that was publicly lauded by many Saudi scholars, headed by Hamud bin Uqla al-Shuaibi and Ali al-Khudeir. Describing the U.S. as "the source of evil, moral corruption, oppression, despotism, and aggression," al-Jarbou' explained that the U.S. "spreads abomination and corruption in the world," "is the biggest source heretical movies," "has more sex channels and wine and cigarette companies than any other country," "wages war against Allah's religion...and strives to impose its heresy and values out of arrogance and a desire to dominate." "Even Satan does not behave like America does," he wrote.2
On May 6, 2002, fourteen Saudi scholars published a special announcement claiming that the escalation in tensions between Islam and the West stemmed from American and European foreign and economic policies reflected in their siding with Israel, supporting globalization, and waging war on global terrorism. They asserted that, "observing this conflict...between Islam and the Muslims who follow righteousness, on one side, and heresy and its forces, on the other side, will expose the identity of the enemy and its flag [ideology], which developed after the rise of what is called the new world order, the Madrid and Oslo conventions, other conventions held in America and Sharm Al-Sheik [Egypt], and the criminal war against Muslims called the war on terror. Thus, the genuine hatred and the nature of this conflict between the camp of Islam and the camp of ahl al-dhimma - the Jews and Christian Crusaders, and the hypocrites who follow them [Arab leaders] - becomes clear."3
The confrontation between Islam and the West is considered a zero-sum game, the outcome of which is to be the absolute and total victory of Islam in the twenty-first century. In his public message to the Muslim world on the occasion of the holiday of Eid al-Adha (February 19, 2002), Hamas leader Ahmad Yassin clearly justified the jihad against the U.S. in Muslim and Arab countries on the basis of Islamic law. Jihad against America is a positive commandment in every respect and is the realization of "the right of self-defense" against "the Crusaders' war" and the terrorist war waged by the United States against the nation of Islam in Afghanistan and against the Islamic jihad movements in the world. Yassin emphasized that jihad has a defined goal, which is to "bring Islam to a dominant global position and release it from the hegemony of America and its Zionist allies." He encouraged Muslims to perform jihad and to prepare for an extended battle against the U.S., promising that the current century, the twenty-first, is the "Islamic century, the century of liberation, victory, and the fulfillment of potential."4
The Future Conquest of Rome and All of Europe
Similarly, the prominent Muslim scholar Sheikh Yusuf al-Qaradawi, the Qatari-based spiritual authority for the worldwide Muslim Brotherhood, issued an Islamic ruling that, despite the pessimism among Muslims, Islam will definitely prevail and eventually become master of the entire world.5 One of the signs of Islamic victory will be the conquest of the Italian capital, Rome, by the Muslims. Occupying Europe and defeating Christianity will become possible, according to al- Qaradawi, with the spread of Islam inside Europe until it becomes strong enough to take over the whole continent. Al-Qaradawi asserts that "the signs of salvation are absolute, numerous, and as plain as day, indicating that the future belongs to Islam and that Allah's religion will defeat all other religions." He relies on ancient Islamic traditions quoting the Prophet Muhammad, who allegedly argued that the conquest of Constantinople (Istanbul) and then Romia (Rome) are considered signs of the victory of Islam. Al-Qaradawi wrote:
And Romia is the city we name Rome, the capital of Italy. The city of Herqel [Constantinople] was conquered in 1453 by the young Ottoman, aged 23, Muhammad Ibn Mourad, known by his nickname Muhammad the Conqueror. Nowadays, the conquest of the other city Romia [Rome] remains unfulfilled. Namely, Islam will return once more to Europe as a conqueror and as a victorious power after it was expelled twice from the continent....I assume that next time the conquest [of Europe] will not be achieved by the sword [i.e., war] but by preaching (daawa) and spreading the ideology [of Islam]....The conquest of Romia [Rome] and the expansion of Islam will reach all the areas where the sun shines and the moon appears [i.e., the entire world]....That will be the result of a planted seed and the beginning of the righteous Caliphate's return....[The Islamic Caliphate] deserves to lead the nation to the plains of victory.6
Al-Qaradawi's influence, it should be stressed, is widespread. His religious rulings not only appear on the websites of Muslim Brotherhood subsidiaries, like Hamas, but also on the websites of Saudi-inspired groups fighting the U.S. in western Iraq and on the websites of Chechen Islamists.
The State of Confrontation with the West
The state of confrontation with the West is considered by radical Muslim scholars not as something predestined from God, which Muslims have to endure until salvation, but as an opportunity to promote Islamic awareness and to release themselves from Western dominance and values. The first step to be taken from a religious perspective is to define the United States, the leader of the free world, as an "enemy" that is waging a "religious war" against Islam, and on this basis to issue Islamic rulings that the U.S. and its allies belong to dar al-harb (the realm of war). The command of jihad applies not only to Muslims on the confrontation lines in the Muslim and Arab worlds, but to all Muslims living in the areas of the enemy as well. Al-Jarbou' has ruled that the current state of relations between Islam and the West is to be expressed as one of total war against the infidels. America, according his viewpoint, is not a regime with which Islam can maintain normal relations until Islam becomes strong enough to launch a jihad against it. Nor is it a regime that deserves the tolerant and peaceful attitude from Islam accorded to Christians and Jews as protected minorities under Islamic rule (ahl al-dhimma). Criticizing other Muslim scholars who "neglected their duty" to define the state of relations with America as one of all-out war, al-Jarbou' unequivocally ruled that the definition of the U.S. as dar al-harb obliges all Muslims to prepare in practice for the war against the infidels.7
Another Saudi scholar, Salman bin Fahed al-'Auda, in his book The End of History, asserts that the solution to Islamic distress - that may bring about the fall of America and the Western world - "exists in one word which is Jihad" (emphasis in original). According to al-'Auda, the meaning of jihad is much broader than fighting with a sword (the Islamic symbol of jihad). Appealing to Muslims throughout the world, he wrote: "We should not simplify this issue and narrow its meaning to a restricted military battle in one of the Islamic regions or even to an all-out war against the West, which is possible and predicted and we assume is arriving [emphasis added]." He continues: "Life as a whole is a battlefield. The weapons are not only the rifle, the bullet, the airplane, the tank, and the cannon. Not at all! Thinking is a weapon, the economy is a weapon, money is a weapon, water is a weapon, planning is a weapon, unity is a weapon, and so there are many types of weapons."8 In The End of History, al-'Auda concluded that the West by itself was already in an advanced state of decay: "The West, and above all the United States, and Western culture, in general are undergoing a historical process that is deterministic. This process leads to its total collapse, sooner or later." His jihad was intended to accelerate that collapse. During the 1990s, he was regarded as the most influential preacher in Saudi Arabia.9
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Civilians in Infidel States Deserve to Die
Islamic law concerning the state of war between Islam and the West also requires Islamic scholars to deal with issues regarding the laws of war and the definition of "combatants" and "non-combatants." The innovation observed in Islamic religious rulings issued by radical Muslim scholars in recent years refers to a broadening of the definition of "combatants" who deserve death in jihad to all residents living in infidel states. The laws of war are considered to apply to all civilians and they are perceived in the same way as soldiers fighting on the battlefield. Such a position cancels the right of Jews and Christians to receive protection under Islam and from a religious perspective turns all Western civilians into "combatants." It relies on various religious arguments: Imitating the way of life and behavior of the Prophet Muhammad in his policy toward ahl al-dhimma, reacting on the basis of retaliation, and excluding Jews and Christians from the definition of monotheism and re-defining them as polytheists.
On June 28, 2002, 28 scholars from the Al-Azhar Institute in Egypt determined that killing large numbers of Israeli civilians in Palestinian suicide bombing attacks was the "noblest act of jihad." They justified killing Jews by arguing that Israel is a racist, military state that took Muslim land illegally by force. Muslims have, therefore, the right under Islamic law to rise up in jihad against the occupation in order to liberate their lands. The Al-Azhar scholars argued that in conducting jihad there is no need to make any distinction between soldiers and civilians. The correct distinction has to be made between peace-seekers (Muslims) and warmongers (Jews), and between the attackers (Jews) and the attacked (Muslims). Following this religious outlook, the Jews are robbers of Islamic land who contaminate the sacred sites of Islam and, therefore, they have been defined as "combatants, no matter what kind of clothes they wear."10
In April 2002, Sheikh Hamed al-Ali, a lecturer on Islamic culture in Kuwait and one of the leaders of the radical Salafi stream,11 clarified in a religious ruling the circumstances in which it is permitted to kill civilians in the cause of jihad without violating the Prophet Muhammad's command prohibiting the murder of women and children. These include:
Participation in war - For civilians "who knowingly take part in combat or advise and encourage others to do so, etc., the prohibition against killing them does not apply and it is permitted to kill them in war....It should be noted that an army involved in modern warfare also includes soldiers who are non-combatants, some of whom serve in combat support roles and without whom conducting a war would not be possible. For example there are those who operate computers which manage military activities; military personnel involved in strategic planning; reserve forces who supervise mobilization of soldiers and prepare them for battle, if only on an administrative level; intelligence personnel, etc. All are included in the fate of those who encourage war against Muslims, and it is permitted to intentionally kill them in battle." According to al-Ali, all citizens of Israel are to be considered combatants because of Israel's compulsory military service law, which includes women, in addition to the fact that its general population is party to government policy due to the taxes it pays and its participation in elections.
Collateral damage to civilians during attacks on military targets - "When Muslims are forced to launch an all-out attack on enemies or bomb them from a distance and this may cause the death of women, children, and other civilians, it is imperative to ensure that they are not killed intentionally. However, if they are killed during such attacks, killing them does not constitute a sin."12
In a similar vein, Sheikh Suliman bin Nasser al-Ulwan, a Saudi scholar, issued a ruling on May 18, 2001, which defined the suicide attacks against the "exploitive Jews" in "Palestine" and against the "aggressive Christians" in Chechnya as "acts of self-sacrifice according to the way of Allah," and are therefore legitimate means of warfare from a religious perspective." He is cited in a December 2001, al-Qaeda videotape when a visiting Saudi tells Osama bin Laden that he is bringing "a beautiful fatwa" from al-Ulwan.
Sheikh al-Ulwan argued that it is not prohibited to kill children as a consequence of suicide actions if the perpetrator of such an action had no premeditative intent to kill them. Nevertheless, al-Ulwan includes "all the Jews in Palestine" in his definition of "combatants," adding that, "If jihad fighters are not able to kill combatants [only] without [also] killing children [who are with them], there is no problem in such cases if they [the children] are killed." In this context, al-Ulwan provides religious legitimacy for blowing up buildings "on the Jews' heads" indiscriminately and permitting the murder of Jewish women, who serve in the military and take part in the "aggression" by the very fact of being part of the "plundering" of Muslim lands, and because of their "moral corruption."13 His impact has reached beyond the borders of Saudi Arabia. For example, al-Ulwan's writings have been found in schools belonging to Hamas in the Gaza Strip. Thus, one of the major al-Qaeda spiritual leaders has been influencing the development of religious and political thinking of the Palestinians as well.
A more decisive approach to ordering the indiscriminate killing of Jews is presented by the learned Saudi cleric Muhammad Saleh al-Munajjid in a fatwa issued in April 2003: "The Jews distorted the religion of Allah...murdered the prophets and denied the existence of Allah; they are intriguers, frauds, and traitors...bringing corruption to Muslim communities...set fire to the Al-Aqsa Mosque...desecrated the Quran...committed massacres; so how is it possible for Muslims not to rejoice at murdering the infidel, thieving Jews? Moreover, Allah will satisfy his believers by destroying and exterminating them all. This is our right as Muslims as was promised by our Prophet....Allah will bring us to defeat and master them according to the Islamic tradition: Fight the Jews and defeat them until the rock says: 'O Muslim, there is a Jew behind me, come and kill him!'"14
All those involved in fighting Muslims, both Christians and Jews, are regarded as "combatants" in Muslim eyes. However, a particularly negative status is reserved for Jews, who are regarded as the source of all evil not only in the context of the current Israeli-Palestinian conflict but due to their "inherent characteristics" and the "danger they embody to mankind." In a statement issued in December 2002 to "enlighten young Muslims," the Hamas movement describes Jews in wholly anti-Semitic terms in a way that divests them of any vestige of humanity. Jews are described as a nation of "despicable lowlifes," "traitors," and "liars" who are "arrogant," "corrupt," and "cursed," who include other gods in their beliefs and distort the Holy Scriptures." The Jews are accused of attempting to murder the prophet Muhammad, of seditiously creating the religious conflict that resulted in the split between the Shia and the Sunni, of the murder of Ali (founder of the Shia), and of supporting the collapse of the Ottoman Caliphate. The document ends with an appeal to Muslim youth warning that "the Jews control the centers of power in the world," "spread lechery and abomination," "are behind all current and past wars," and are responsible for "almost all corruption and perversion that occurs in the Muslim world."15
A similar description of the characteristics of the Jewish nation can be found in a sermon given by the imam of the central mosque in Mecca, Sheikh Abd al-Rahman al-Sudays, in May 2002, describing the Jews as "infidels," "calf-worshippers," "prophet-murderers," who even "tried to kill the prophet Muhammad," "distorters of prophecies," the "scum of humanity," "corrupt," 'treacherous," and "conniving." He prayed to God saying: "I wish the enemies of Islam and Muslims, the Jews, the pagans and other corrupted people, will be humiliated....Allah, exercise your power against the Jews. Allah, destroy them with sharpened tools and take them out of Al-Aqsa Mosque."16
One of al-Qaeda's leaders, identified by his nickname, Abu Ayman al-Hilali, in an article published in the periodical Al-Ansar, defined the U.S., Britain, France, Italy, Canada, Germany, and Australia as "enemies," while praising the mass-murder attacks committed by al-Qaeda operatives in the U.S., Tunisia, Yemen, Bali, Moscow, and elsewhere. He justified killing Western civilians in these attacks for the following reasons:
The citizens in democratic Western countries become full participants in governmental decision-making by voting in elections and therefore they are no longer considered "non-combatants" as in past wars.
The citizens in Western countries are full participants in the war their governments are waging against Islam. Their designation by al-Qaeda as "targets" was a reaction to the aggressive policies of their governments. Al-Hilali asserted that even those in the West who oppose their governments' policies have no immunity from al-Qaeda's jihad since they are a small minority without real influence and cannot be distinguished during the commission of attacks.17
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Democracy: The Religion of the Infidels
Abu Muhammad al-Maqdisi, leader of the Bayat al-Imam extremist group whose operatives were arrested in Jordan in 1995, takes a further step in his book Democracy is a Religion in denying the traditional protection given by Islam to Jews and Christians. They become "combatants" and infidels and lose their status of ahl al-dhimma not only because of their participation in elections, but as a result of their endorsement of democracy and its values. For al-Maqdisi, democracy is a prohibited innovation that contradicts Islamic values and embodies a new heretical religion. Its followers are "infidels" and "polytheists," even if they consider themselves as Jews or Christians by religion. Al-Maqdisi based his claim on the following arguments:
"Democracy gives legitimacy to the legislation of the masses or to the despotic regime. It is not [the expression of] the rule of Allah....Allah ordered his Prophet to execute the commands given to him and forbade him to follow the emotions of the nation, the masses, and the people."
"Democracy is the rule of the masses or the rule of paganism, which is conducted according to a constitution [written by humans] and not according Allah's laws....It [democracy] has become the mother of laws and is considered [by the masses] as a holy book. The religion of democracy has no relation to Quranic verses or the Prophet's way of life and it is not possible to legislate according to them unless they are compatible with the holy book [the constitution]."
"Democracy is an outcome of despicable secularism and its illegitimate daughter, since secularism is a heretical school striving to separate religion from state and government."
Al-Maqdisi concludes: "Democracy is a religion that is not Allah's religion....It is the rule of paganism...it is a religion which includes other gods in its belief...the people represented in the religion of democracy by its delegates in the parliament...who are actually standing idols and false gods placed in their chapels and their pagan fortresses, namely, their legislative councils. They and their followers rule according to the religion of democracy and the constitution's laws upon which the government is based, and according to the paragraphs of their legislation....Their master is their God, their big idols who approve or reject legislation. He is their emir, their king, or their president."18
Debating Islamic Retaliation: 4 Million or 10 Million American Deaths?
As noted, radical Islamic scholars rely in their rulings on the principle of retaliation while justifying indiscriminate mass murder of Christians. Suliman Abu Ghaith, a prominent al-Qaeda leader, in his famous series of public letters entitled Under the Shade of the Lances and directed at Muslim youth, listed the crimes of the U.S. against the Arab and Muslim world. He argued that the U.S. is responsible directly and indirectly, in its long-lasting war on Islam, for the death of four million Muslims, including 1.2 million Iraqis, 260,000 Palestinians (as a result of its support for Israel), 12,000 Afghans and Arab fighters, 13,000 Somalis, and millions more throughout the world. From his perspective, al-Qaeda's attacks in Washington and New York in September 2001 are not enough to balance the equation of killing. Basing his claims on the Islamic principle of retaliation, Abu Ghaith argues that Muslims have the right to kill four million Americans, including one million children, to displace eight million Americans, and to cripple hundreds of thousands more. Moreover, Abu Ghaith asserts that Muslims are religiously entitled to use chemical and biological weapons in their war against the U.S.19
Nasser bin Hamed al-Fahd, another prominent Saudi Salafi scholar, in an Islamic ruling published in May 2003, approved the use of weapons of mass destruction against America. He also based his indictment on the principle of retaliation, but argued that Muslims have the right to kill ten million Americans in response to the crimes of their government against the Muslim nation. Al-Fahd elaborated the circumstances under which it is religiously permitted to kill non-combatant Americans: During a military operation when it is hard to distinguish between soldiers and civilians and according to military needs or considerations. Ascribing great importance to the military considerations, he asserted that the military leaders who are responsible for the execution of jihad have the authority to make the decisions concerning what types of weapons to use against the infidels. If they decided to use weapons of mass destruction based on military need, it would be an obligation under Islamic law.20
Similarly, radical Muslim scholars have justified the killing of 2,750 civilians in al-Qaeda's September 2001 attacks. A senior al-Qaeda operative named Saif al-Din al-Ansari argued in his book The September 11th Attack that the killing of thousands of civilians in the suicide attacks did not go beyond the "special circumstances" in which Muslims are religiously permitted to kill infidel civilians. These attacks were justified because they were conducted according to the principle of retaliation as well as the Islamic religious principle that permits the killing of civilians when necessary in order to destroy the enemy's fortresses, when it is impossible to differentiate between military and civilians.21 Support for this position has also been expressed by Saudi Islamic scholars Hamud bin Uqla al-Shuaibi and Ali al-Khudeir.
Hamud bin Uqla al-Shuaibi referred to the September attacks in his Islamic ruling as follows: "Any decisions taken by the American infidel state, particularly those dealing with war and other critical decisions, are taken based upon public opinion surveys or representatives' voting in their infidel legislatures. These legislatures represent primarily the people's opinion....Therefore, any American citizen who voted for the war is considered a combatant or at least an accessory [to the war]."22
The Saudi Sheikh Ali al-Khudier wrote in another Islamic ruling: "We should not regret the deaths of civilians in the Twin Towers attack since the American is an infidel because of his connection to his government. He fights for it, supports it with money, opinions or advice, and this is the type of their political regime. Therefore, they deserved what they experienced, since their fighting, support, and opinions deserve punishment."23
Advocating Total Extermination of Islam's Enemies
Al-Qaeda has adopted a broader interpretation of the religious command concerning the killing of infidels. It is considered an absolute command that does not depend on political circumstances, the need or will to take revenge, or a wish to liberate Muslim lands from infidel rule. Saif al-Din al-Ansari, in an article in al-Qaeda's official periodical, presented the new, comprehensive concept of total extermination of Islam's enemies based on the Quranic verse: "And that He may purge those who believe and deprive the unbelievers of blessings" (Al-Imran, 142). According to al-Ansari, this is the way Allah deals with infidels, who are doomed throughout history to total extermination through various types of death, as was the fate of the people of Noah, Hod, Saleh, Lot, Midian, and Pharaoh. Al-Ansari asserted that the extermination of infidels is a permanent Islamic law and unchangeable fate for infidels that is as relevant today as it was in past generations. According to al-Ansari, "Just as the law of extermination was applied to the infidel forces among the nations in previous days and no one could escape it, so it will be applied to the infidel forces in our day and no one will escape it. Namely, similar to the fate of the Thamoud and 'Ad peoples [two pagan Arab peoples which, according to Islamic tradition, were exterminated due to their rejection of the words of the Prophet], so the American state, the Jewish state, and all other infidel countries will certainly be destroyed."24
Al-Ansari further developed his concept of total extermination in a subsequent article. First, he firmly criticized the Islamic movements that raise the banner of daawa (Islamic preaching) and support the gradual spread of Islam through education, social organizations, and the economy as the preferred means to bring about the victory of Islam over other religions. He asserts that Allah has the power and might to subdue the infidels and to exterminate them by his will. However, He has not done so because of His wish to designate this task to Muslims.
Al-Ansari relies on the Quranic verse: "Fight them, Allah will punish them by your hands and bring them to disgrace [meaning that Allah will kill the infidels], and assist you against them and heal the hearts of a believing people" (Al-Tawba, 14). The key word in this verse is "by your hands," which indicates the great importance Allah attributes to the physical action of the infidels' extermination. This is even more substantial than the daawa in executing the command of jihad, since the daawa, as important as it might be, could not fulfill God's commandment for extermination.
Al-Ansari wrote: "Allah is capable of exterminating his enemies with no need for intermediaries or the help of anyone. His might is infinite...therefore, when He [Allah] designates the task of extermination of infidels to his believers, He does so as a hidden expression of His power...the infidels' extermination is part of Islamic law, which is operative until the Day of Judgment. Its principal element will be fulfilled only at the hands of the believers, meaning through jihad, which is also to be operative until the Day of Judgment.25
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Notes
1. http://www.theatlantic.com/issues/90sep/rage.htm
2. Abd al-Aziz al-Jarbou', Al-Ta'asil li-Mashrou'iyah Ma Hasals Li-Amrica Min Tadmir, Nov. 2001, p. 19-22 ("The Eighth Foundation" chapter). See also Saif al-Din al-Ansari, Al-Harb Al-Mu'asirah, January 2002.
3. http://www.saaid.net/fatwa/f23.htm
4. http://www.palestine-info.info/arabic/palestoday/dailynews/2002/feb02/19_2/detail.htm#1
5. For background on Qaradawi, see Reuven Paz, "Sheikh Dr. Yousef al-Qaradawi: Dr. Jekyll and Mr. Hyde," Policywatch, Washington Institute for Near East Policy, October 18, 2001.
6. http://www.islamonline.net/fatwa/arabic/FatwaDisplay.asp?hFatwaID=2042
7. Abd al-Aziz al-Jarbou', Al-Ta'asil, p. 72-73.
8. http://66.34.76.88/SalmanAldah/NihayetTareekh1.htm
9. Mamoun Fandy, Saudi Arabia and the Politics of Dissent (New York: Palgrave, 1999).
10. http://www.alshaab.com/GIF/28-06-2002/Q.htm
11. Salafi - A follower of the Prophet Muhammad's immediate successors, the pious ancestors (al-salaf al-salihin). Salafi movements have sought to restore Islam on the basis of its seventh-century teachings - that is, Islam as it was under the Prophet Muhammad and his immediate successors. Salafis usually belong to one of several groups, most notably the Muslim Brotherhood and the Wahhabis.
12. http://www.islamonline.net/fatwa/arabic/FatwaDisplay.asp?hFatwaID=67739
13. http://www.islamonline.net/fatwa/arabic/FatwaDisplay.asp?hFatwaID=35806
14. http://www.islamonline.net/fatwaapplication/arabic/display.asp?hFatwaID=96437.
In this context, see also http://islamonline.net/fatwa/arabic/FatwaDisplay.asp?hFatwaID=31548;
http://islamonline.net/fatwa/arabic/FatwaDisplay.asp?hFatwaID=71076;
http://islamonline.net/fatwa/arabic/FatwaDisplay.asp?hFatwaID=48811;
http://www.qassam.org/hamas_fire.htm
15. http://www.kataeb-ezzeldeen.com/Taqrer02_12_02.htm
16. http://www.alshaab.com/GIF/03-05-2002/Palestine%204.htm 17. Abu Ayman al-Hilali, "Risalah Al-Imam Wa-Malamih Al-Khuttah Al-Mustaqbalia," Al-Ansar, vol. 21, Nov. 20, 2002, pp. 17-22.
18. Abu Muhammad al-Maqdisi, Al-Dimouqratia Din. http://almaqdese.com/c?c=1.1 Ali al-Khudeir defined secularism as "shirk" (polytheism). Ali bin Khudeir al-Khudeir, Al-Qawa'id Al-'Arba' Al-lati Tufariq Bayna Al-Muslimin Wa-Din Al-'ilmiyeen, al-Quaim, Saudi Arabia. http://www.saaid.net/Warathah/khudier/kh3.zip. See also Abu al-Saed al-'amili, "Al-Dimoqratia: wsilah Li-'ihtiwa Al-Tayyar Al-'islami," Al-Ansar, Vol. 23, December 19, 2002, pp. 25-30.
19. http://groups.yahoo.com/group/abubanan/message/780; http://groups.yahoo.com/group/abubanan/message/790.
20. Nasser bin Hamed al-Fahd, Risalah Fi 'istikhdam 'asliha Al-Dammar Al-Shamil Did Al-Kuffar, May 2003.
21. Saif al-Din al-Ansari, Ghazwa 11 Sebtenber, September 2002, pp. 10-12.
22. http://saaid.net/Warathah/hmood/h40.htm
23. http://alarabnews.com/alshaab/GIF/26-10-2001/fatwa2.htm
24. Saif al-Din al-Ansari, "Wa-Yimhaq Al-kafirin," Al-Ansar, vol. 15, Aug. 10, 2002, pp. 4-8.
25. Saif al-Din al-Ansari, "Yi'adhibuhoum Allah Bi-'aydikum," Al-Ansar, vol. 16, Aug. 24, 2002, pp. 4-9.
* * *
Who's Who Among Radical Islamic Thinkers
- A Glossary
Hamed al-Ali - Kuwaiti scholar (in his 40s). Serves as lecturer and preacher. Graduated al-Madina University in Saudi Arabia. Published Islamic verdicts justifying suicide attacks committed by Palestinians against Israelis.
Saif al-Din al-Ansari (nom de guerre) - Senior al-Qaeda leader and ideologist. Expresses support for total extermination of infidels through jihad for the sake of Allah.
Salman bin Fahed al-'Auda - Prominent Saudi scholar. Born in Baser (Buraida, Saudi Arabia) in 1956. Serves as Islamic researcher, lecturer and preacher. Runs the Islamic website www.islamtoday.net. Arrested by Saudi security services in 1994 for his radical views and jailed until 1999. Al-'Auda considers jihad against the U.S. in Muslim countries as justified self-defense in reaction to American occupation. He attributes great importance to the daawa (spreading Islam by education and preaching).
Nasser bin Hamed al-Fahd - Saudi scholar. Born in 1968 in Riyadh (Saudi Arabia). Graduated Al-Imam University in Riyadh. Served as lecturer in Islamic affairs. Jailed by Saudis 1994-1997. Al-Fahd published articles and religious edicts supporting the Taliban regime in Afghanistan and denouncing Muslims who cooperated with the U.S. In May 2003 he justified use of weapons of mass destruction against the U.S. as a retaliatory measure. Along with Ali al-Khudeir and Ahmed al-Khaldi, he incited to commit attacks against Westerners and openly supported the Riyadh bombings. In May 2003 he was rearrested by the Saudi security services and charged with advocating violence in sermons in mosques and on the Internet. Under pressure by Saudi authorities, which began cracking down on militants believed responsible for a string of attacks in Saudi Arabia, al-Fahd renounced militancy and attacks against innocent people inside Saudi Arabia in an interview on Saudi TV (November 2003). He focused on the past tendency of clerics to widely use the doctrine of takfir, charging that Muslims have become infidels and should be treated accordingly.
Suliman Abu Ghaith - Born in the 1970s in Kuwait. Former religious studies teacher. Serves as al-Qaeda's spokesperson. He left Kuwait in 2000. Abu Ghaith was stripped of his citizenship after he called for retaliation against the U.S. during the war in Afghanistan. He is considered as one of Osama bin Laden's closest associates.
Abu Ayman al-Hilali (nom de guerre) - Senior al-Qaeda leader and ideologist. Supports uncompromising jihad against infidels and religiously justifies mass killings of Western civilians.
Abd al-Aziz al-Jarbou' - Saudi scholar. Published religious edicts justifying jihad against the U.S. and al-Qaeda's attack on the U.S. in September 2001. Considered a supporter of al-Qaeda's terrorist global network. Arrested in 2003 by Saudi security services.
Ali al-Khudeir - Saudi scholar. Born in 1954 in Riyadh (Saudi Arabia). Graduated Al-Imam University in Qusaim. Hamud bin Uqla al-Shuaibi, one of his teachers (see below), had great influence on shaping his Islamic views. Al-Khudeir published articles and religious edicts supporting the Taliban regime in Afganistan including the destruction of the Hindu statues, as a part of jihad against the infidels. He religiously justified al-Qaeda's attack on the U.S. in September 2001. Along with Nasser al-Fahd and Ahmed al-Khaldi, he incited to commit attacks against Westerners and openly supported the Riyadh bombings. He was arrested by the Saudi security services and charged with advocating violence in sermons in mosques and on the Internet. Under pressure from Saudi authorities, which began cracking down on militants believed responsible for a string of attacks in Saudi Arabia, in an interview on Saudi TV (November 2003), al-Khudeir reversed his religious edicts justifying attacks against innocent people including Westerners under regime protection inside Saudi Arabia and encouraging Saudi youth to join the jihad in Iraq and Afghanistan. Like Nasser al-Fahd, he focused on limiting the application of takfir, which had largely internal implications.
Abu Muhammad al-Maqdisi - Palestinian scholar (born in Nablus), living in Jordan. Al-Maqdisi was involved in directing Islamist terrorist groups in Jordan under various names - Bay'at al-Imam, Jaysh Muhammad, Al-Islah wal-Tahaddi - along with the Islamic Movement for Change, which carried out the terrorist attack in Riyadh in November 1995 in which five American officials were killed. He was imprisoned between 1995 and 1999 and detained again in the recent wave of arrests of Islamists in Jordan.
Muhammad Saleh al-Munajjid - Saudi scholar. Born in 1961. Graduated Saudi University in Dhahran. The late grand mufti, Abd al-Aziz al-Baz, was one of his teachers, who had great influence in shaping his views. Serves as Islamic researcher and preacher.
Yusuf al-Qaradawi - Prominent Islamic scholar and well-known preacher. Born in Egypt (1926), lives in Qatar. Known as a member of the Muslim Brotherhood. Qaradawi heads the Sunni studies department at Qatar University. He was the first Sunni Muslim scholar to give religious legitimacy to the suicide operations of Hamas (1995), and to the participation of women in suicide attacks. Qaradawi has generally defended bin Laden as a representative and defender of oppressed Muslims against the "American and Zionist evilness," even though he condemned the attacks on American soil against innocent civilians.
Hamud bin Uqla al-Shuaibi - Prominent and influential Saudi scholar. Born in 1927 in al-Shiqqa (Buraida, Saudi Arabia), died in 2001. Lost his eyesight in the age of 9 as a result of disease. Learned Islamic studies and law. Served as teacher of Islamic affairs. His students included a number of important Saudi religious leaders, including the current grand mufti. Al-Shuaibi published religious edicts supporting the Taliban regime in Afghanistan including the destruction of the Hindu statues, as part of jihad against the infidels. He religiously justified al-Qaeda's attack on the U.S. in September 2001 and gave religious legitimacy to the suicide attacks against Israel carried out by Palestinians. In October 2001, bin Laden cited al-Shuaibi when he spoke of his justification for killing Jews and Christians.
Abd al-Rahman al-Sudays - Imam of the central mosque in Mecca. Well-known for his radical Islamic views and ardent preaching against the infidels.
Suliman bin Nasser al-Ulwan - Saudi scholar. Born in 1969 in Buraida. Serves as lecturer and preacher. Published religious edict justifying the Palestinian suicide attacks against Israeli civilians. In 2001 he stated that the attacks on the World Trade Center were an act of jihad.
Ahmad Yassin - Palestinian religious leader; born in 1937 in Ashkelon (today in southern Israel); worked as teacher, preacher, and community worker; completely paralyzed following an accident in his youth; founder of the Islamic Center in Gaza in 1973, which soon controlled all religious institutions; founder and spiritual leader of Hamas, the Islamic Resistance Movement, and its military wing, Izz al-Dinn al-Qassam, which is responsible for the deaths of hundreds of Israelis in terrorist attacks, including suicide bombings, since the 1990s. An Israeli court convicted Yassin in 1989 of ordering Hamas members to kidnap and kill two Israeli soldiers. He was released from jail in 1997 to appease Jordan after Israel's failed attempt to assassinate Hamas leader Khaled Mashal in Amman. Yassin opposed the previously signed agreements between Israel and the Palestinian Authority, and maintains that eliminating Israel and the establishment of an Islamic state in Palestine is a religious duty.
* * *
Lt. Col. Jonathan D. Halevi is a researcher of the Middle East and radical Islam and an advisor on Arab affairs in the Israeli Foreign Minister's office. His previous writings include "Understanding the Breakdown of Israeli-Palestinian Negotiations," Jerusalem Viewpoints #486 (September 15, 2002) and "Who is Taking Credit for Attacks on the U.S. Army in Western Iraq? Al-Jama'a al-Salafiya al-Mujahida" Jerusalem Issue Brief #3-3 (August 5, 2003). The views expressed here do not necessarily reflect those of the IDF or the Israel Ministry of Foreign Affairs.
The Jerusalem Letter and Jerusalem Letter/Viewpoints are published by the Jerusalem Center for Public Affairs, 13 Tel-Hai St., Jerusalem, Israel; Tel. 972-2-5619281, Fax. 972-2-5619112, Internet: jcpa@netvision.net.il. In U.S.A.: Center for Jewish Community Studies, 5800 Park Heights Avenue, Baltimore, MD 21215 USA, Tel. (410) 664-5222; Fax. (410) 664-1228. © Copyright. All rights reserved. ISSN: 0792-7304.
The opinions expressed by the authors of Viewpoints do not necessarily reflect those of the Jerusalem Center for Public Affairs.
-
GM, you said, "Again, define torture"...
GM; you seem to have a hard time with the word "torture"
Water boarding? Would you like to try it???
We used to think (we prosecuted) water boarding was torture; now
when we do it, it's OK? A near death experience, but it's not torture???
Or according to an FBI report;
captives were chained hand and fist in a fetal position for 18+ hours a day
subjected to extreme temperatures close to freezing
gaged with duck tape
threatened with death and kept in small (think very very small) solitary confinement cells
forced feeding with a tube bigger than your finger without anesthesia
Men were forced to urinate on each other
electric shock until near death
sleep deprivation
and on and on and on and on......................and this is just what we know!
And I like the quote, "Gitomo is a holiday camp compared to Abu Garaib where prison guards raped children
and beat detainees to death"
Or that our military lawyers warned the Pentagon "that some of the methods used to interrogate and hold detainees
after 9/11 violated military, U.S. and International Law.
Or, as I quote/mentioned above, our own Supreme Court said we are WRONG.
Are you blind??? Do a Google search; you end up with almost 300,000 hits on GUANTANAMO + TORTURE
Everyone KNOWS and admits we torture; the question is how much, how often, and is it justified. It's not!
I say it's just sad. As for them going back and fighting us; wouldn't you if you were tortured and saw
everyone around you being tortured??? I too would join in the opposition. America is suppose to be
the land of justice and fairness; what happened??? They are not eligible for POW treatment??? What?
They don't wear uniforms, line up in a straight line, and blow a bugle? Neither did my forefathers in
the Revolutionary War or for that matter did the Jews in their fight for Israel. Nor did it happen in
Vietnam! Now suddenly they are "enemy combatants". And shipped off to torture chambers in far
off lands??? WE SHOULD BE ASHAMED!!!!
Yet you/America has no shame. You quote Webster and justify not following the
Geneva Convention? That's pretty silly. Look in another dictionary.
I think you are just kidding me; of course you know we
are committing torture but you just want to egg me on. I hope you are kidding...
I suggest common sense. Common decency. Ask yourself, how you would want to be treated if you
were innocent??? And most of the people in Guantanamo will be found guilty of nothing! It is
simply inhumane. Remember; there is a presumption of innocence?
You know, GM, I don't think you like Muslims - period. But the same could be said about people who
don't like Asians, or Jews, or Blacks, or Mexicans...... All have been persecuted; and it's not right.
james
ps GM; We've been fighting the Muslims since the 7th century??? Gosh, I bet if you ask most American since
our founding 500+ years ago no one gives a rat's $%^& about the Muslims. Recently sure; as for Iraq we invaded them,
remember? We are the occupying army. America should be more concerned about China or Russia; they could make
a serious difference one day. I asked my Dad (a former Naval Officer and War Veteran) if he is worried about the Muslims?
He said, "Who?" And "why?" "They are not a military threat to America's heartland!".
pps In a separate post, Crafty criticized the ACLU; I agree, they have their faults, but without them who would fight
for our Civil Rights? Perhaps today you don't like them; they are not popular, but they will be there for you too and have
been in the past. Today it's the Muslims (yes GM I know you don't like them) but tomorrow it could be another
minority. Civil Rights, humane decency for ALL people is the foundation of our country. Fighting for human rights
is never popular, but it's the moral thing to do.
-
http://blogs.abcnews.com/theblotter/2007/11/exclusive-only-.html
ABC News: The Blotter
Exclusive: Only Three Have Been Waterboarded by CIA
November 02, 2007 1:25 PM
Brian Ross and Richard Esposito Report:
For all the debate over waterboarding, it has been used on only three al Qaeda figures, according to current and former U.S. intelligence officials.
As ABC News first reported in September, waterboarding has not been used since 2003 and has been specifically prohibited since Gen. Michael Hayden took over as CIA director.
Officials told ABC News on Sept. 14 that the controversial interrogation technique, in which a suspect has water poured over his mouth and nose to stimulate a drowning reflex as shown in the above demonstration, had been banned by the CIA director at the recommendation of his deputy, Steve Kappes.
Hayden sought and received approval from the White House to remove waterboarding from the list of approved interrogation techniques first authorized by a presidential finding in 2002.
The officials say the decision was made sometime last year but has never been publicly disclosed by the CIA.
THE BLOTTER RECOMMENDS
Blotter CIA Bans Waterboarding in Terror Interrogations
Blotter How the CIA Broke the 9/11 Attacks Mastermind
Blotter Investigator: 'High-Value Targets' Imprisoned by High-Level 'Cover-up'
Exclusive: Sources Tell ABC News Top Al Qaeda Figures Held in Secret CIA Prisons
CIA's Harsh Interrogation Techniques Described
Full Blotter Coverage CIA Secret Prisons
One U.S. intelligence official said, "It would be wrong to assume that the program of the past moved into the future unchanged."
A CIA spokesman said, as a matter of policy, he would decline to comment on interrogation techniques, "which have been and continue to be lawful," he said.
The practice of waterboarding has been branded as "torture" by human rights groups and a number of leading U.S. officials, including Sen. John McCain, R-Ariz., because it amounted to a "mock execution."
It has been at the center of the debate that threatens to derail the confirmation of President George Bush's attorney general nominee, Michael Mukasey.
As a result of Hayden's decision, officials say, the most extreme technique left available to CIA interrogators would be what is termed "longtime standing," which includes exhaustion and sleep deprivation with prisoners forced to stand handcuffed, with their feet shackled to the floor.
The most effective use of waterboarding, according to current and former CIA officials, was in breaking Khalid Sheikh Mohammed, known as KSM, who subsequently confessed to a number of ongoing plots against the United States.
A senior CIA official said KSM later admitted it was only because of the waterboarding that he talked.
Ultimately, KSM took responsibility for the 9/ll attacks and virtually all other al Qaeda terror strikes, including the beheading of Wall Street Journal reporter Daniel Pearl.
"KSM lasted the longest under waterboarding, about a minute and a half, but once he broke, it never had to be used again," said a former CIA official familiar with KSM's case.
ABC News first reported on waterboarding in November 2005 as part of a George Polk Award-winning series of reports on the agency and its practices. In that report, CIA sources outlined for ABC News a list of harsh interrogation techniques approved by the Bush administration in a "Presidential Finding," which authorized the use of the techniques on a narrow range of "high-value" targets.
The CIA sources described the list of six "Enhanced Interrogation Techniques" instituted in mid-March 2002 and used, they said, on a dozen top al Qaeda targets incarcerated in isolation at secret locations on military bases in regions from Asia to Eastern Europe. According to the sources, only a handful of CIA interrogators are trained and authorized to use the techniques:
1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.
2. The Attention Slap: An open-handed slap aimed at causing pain and triggering fear.
3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
4. Longtime Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
6. Waterboarding (as demonstrated in the picture above): The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.
According to the sources, CIA officers who subjected themselves to the waterboarding technique lasted an average of 14 seconds before caving in.
Contacted after the completion of the ABC News investigation, CIA officials would neither confirm nor deny the accounts. They simply declined to comment.
-
GM, you said, "Again, define torture"...
GM; you seem to have a hard time with the word "torture"
Water boarding? Would you like to try it???
**Yeah, I'm curious to see exactly how long I could stand it.**
We used to think (we prosecuted) water boarding was torture; now
when we do it, it's OK? A near death experience, but it's not torture???
**It's not a near death experience, and it's done to every member of the US military that attends SERE school.**
Or according to an FBI report;
captives were chained hand and fist in a fetal position for 18+ hours a day
subjected to extreme temperatures close to freezing
gaged with duck tape
threatened with death and kept in small (think very very small) solitary confinement cells
forced feeding with a tube bigger than your finger without anesthesia
Men were forced to urinate on each other
electric shock until near death
sleep deprivation
and on and on and on and on......................and this is just what we know!
**Please post that FBI report, I'd like to read it myself. **
And I like the quote, "Gitomo is a holiday camp compared to Abu Garaib where prison guards raped children
and beat detainees to death"
**Really? Whom are you quoting? Please cite the source.**
Or that our military lawyers warned the Pentagon "that some of the methods used to interrogate and hold detainees
after 9/11 violated military, U.S. and International Law.
**Get 3 lawyers in a room and you'll get at least 4 opinions.**
Or, as I quote/mentioned above, our own Supreme Court said we are WRONG.
**The majority did, 4 dissented. I agree with the dissenters.**
Are you blind??? Do a Google search; you end up with almost 300,000 hits on GUANTANAMO + TORTURE
**This is proof of what, exactly? I googled Alien Abduction and got 2,150,000 hits. Using your logic, I guess this means alien abductions are real, right?**
Everyone KNOWS and admits we torture; the question is how much, how often, and is it justified. It's not!
**Everyone? Wow, that's a big survey sample. Care to cite that source?**
I say it's just sad. As for them going back and fighting us; wouldn't you if you were tortured and saw
everyone around you being tortured???
**Well, according to ABC news, a whopping total of THREE detainees were waterboarded, so I'm pretty sure your above statement isn't correct. If you have an alternate number, please post it.**
I too would join in the opposition. America is suppose to be
the land of justice and fairness; what happened??? They are not eligible for POW treatment??? What?
They don't wear uniforms, line up in a straight line, and blow a bugle? Neither did my forefathers in
the Revolutionary War or for that matter did the Jews in their fight for Israel.
**So, If I understand you correctly, you are asserting that al qaeda is the moral equivalent of the American Revolution and the founders of Israel? Really?**
Nor did it happen in
Vietnam! Now suddenly they are "enemy combatants". And shipped off to torture chambers in far
off lands??? WE SHOULD BE ASHAMED!!!!
Yet you/America has no shame. You quote Webster and justify not following the
Geneva Convention? That's pretty silly. Look in another dictionary.
I think you are just kidding me; of course you know we
are committing torture but you just want to egg me on. I hope you are kidding...
I suggest common sense. Common decency. Ask yourself, how you would want to be treated if you
were innocent??? And most of the people in Guantanamo will be found guilty of nothing!
**Really? You know this how?**
It is
simply inhumane. Remember; there is a presumption of innocence?
You know, GM, I don't think you like Muslims - period. But the same could be said about people who
don't like Asians, or Jews, or Blacks, or Mexicans...... All have been persecuted; and it's not right.
**Ah, so the war against the global jihad is just the persecution of muslims?**
james
ps GM; We've been fighting the Muslims since the 7th century???
**The global jihad started in earnest with the battle of Badr, you might want to look it up. No "we" weren't fighting there, but this was the first battle of the global jihad.**
Gosh, I bet if you ask most American since
our founding 500+ years ago
**America was founded 500+ years ago?????**
no one gives a rat's $%^& about the Muslims. Recently sure; as for Iraq we invaded them,
remember?
**Wasn't there a little something that happened back in late 2001? Ya know, pre-Iraq? I think it was somewhere on the east coast....**
We are the occupying army. America should be more concerned about China or Russia; they could make
a serious difference one day.
**As of today, how many US civilians have died at the hands of the Chinese or Russian military forces? Just give me a ballpark figure.**
I asked my Dad (a former Naval Officer and War Veteran) if he is worried about the Muslims?
He said, "Who?" And "why?" "They are not a military threat to America's heartland!".
**I'd disagree with your father's assessment.**
pps In a separate post, Crafty criticized the ACLU; I agree, they have their faults, but without them who would fight
for our Civil Rights? Perhaps today you don't like them; they are not popular, but they will be there for you too and have
been in the past. Today it's the Muslims (yes GM I know you don't like them) but tomorrow it could be another
minority. Civil Rights, humane decency for ALL people is the foundation of our country. Fighting for human rights
is never popular, but it's the moral thing to do.
-
http://www.fdnylodd.com/9-11-Never-Forget/Memorials/Blood-Of-Heroes.html
A little refresher for your memory, JDN. About 3000 people had their civil rights permanently violated in the span of about 2 hours.
-
http://www.jihadwatch.org/archives/020472.php
Fitna. You'll see actual torture here.
-
GM; if you want to see "actual torture" terrible torture just look at Guantanamo and Abu Garaib and numerous other CIA locations in Europe; it is all very sad. It's seems we seem to want to live in the same sewer as them. But does that make it right???
As for Muslims/Islam I had dinner with my father tonight. He conceded (I do too) your point; 9/11 was terrible, albeit lucky (what
are the odds of both building falling) however his point (my point) as terrible as it was, it was an abberation. Muslims/Islam
do not threaten core American and simply cannot. Another terror attack yes, but core America; no. They do not have the means; intent is one thing, evil is evil, but means, i.e. nuclear weapons, a significant army, navy, delivery systems, etc. is another. So I sleep well, as do most Americans and frankly I/Americans don't worry about Muslims/Islam attacking the Santa Monica Shore, or invading Los Angeles. I assure you, we have enough problems to worry about, but worrying about Muslims invading America is very low our my list. Actually, I know quite a few; they are doctors and attorneys and they are all wonderful people. Unlike you, I don't think think they are all evil and a threat to America. I think you will find every race has good and bad; it is too bad you focus and seem to hate minorities; Muslims and Asians in particular, yet you are a minority. Rather odd...?
As for "facts and proof" interesting how you ignore the ones you can't (torture) contest, but manage to find (you must have lots of time) an article (I suppose I could find an article or source to support that the world is still flat; ahhh the beauty of cut and paste) to support your biased minority opinion. I suppose if I had time (I don't) I could cut and paste articles to match your prolific articles one to one, but the overwhelming evidence contradicts you! Our own government acknowledges torture! Good grief man, wake up! We've done wrong! It's a given. And basic Civil Rights have been denied; it might be you and me next time if we don't speak up. Accept it and please don't cut and paste absurdly biased articles. Open your eyes; the world is not us against Muslims and Asians (Brown People) etc. The world is getting smaller and we need to learn to live together. Most of my friends are very successful and work for large international corporations; they are not just American companies, but global companies and the world (Muslims, Asians, etc.) is their marketplace. No one seems to share you belief that a boogie man (Muslims) lives and threatens us behind every tree...
-
"9/11 was terrible, albeit lucky"
Here we have a profound difference of opinion. 911 was quite on purpose, and a continuation of the previous attacks on the WTC. The luck on that day was not theirs that the WTC collapsed, the luck that day was ours that their attack succeeded only partially. My understanding is that the plane that hit the Pentagon did so because of the minimal flying skills of the jihadi pilot. He missed the White House and therefor continued on to the Pentagon as the previously worked out Plan B. Then there is the matter of Flight 93. What was its intended target? The Capitol Building? The nuclear reactor at Three Mile Island-- in which case a goodly % of Pennsylvania would have been left glowing for a very long time.
"(A)s terrible as it was, it was an abberation."
Here too we disagree. It was not an abberation. It is part of a world wide pattern.
"Muslims/Islam do not threaten core American and simply cannot. Another terror attack yes, but core America; no. They do not have the means; intent is one thing, evil is evil, but means, i.e. nuclear weapons, a significant army, navy, delivery systems, etc. is another."
I am glad we agree about the evil and its intent, but we do not when it comes to the matter of means.
Of course there is no issue of a frontal military invasion, but IMHO the unfortunate reality is that the nature of 4th Generation Warfare is that if we do nothing they will have the means in addition to already having the intent. I mentioned a moment ago the possibility of Flight 93 having been intended for the nuclear reactor at Three Mile Island. Whether that particular hijacking did have such a target or not, other ones in the future can.
There is also the matter of the spread of nuclear technology. Of course you know about Iran disrespecting its obligations under international treaty about allowing its nuclear program to be supervised to ensure that it does not develop the bomb. Please correct me if I am wrong, but you read to me as caring not at all or very little about this. Please tell us what, if anything, you think should be done about this.
Iran is already in a position to hand off radioactive materials -- something of which Israel, a goodly portion of which is in reach of over 20,000 Hezbollah rockets in Lebanon, is acutely aware. Iran's theocratic state has already expressed the desire and intention to wipe out Israel-- which continues to exist so far only because it is a nuclear power. What happens when Iran gets the bomb?
As far as delivery capability goes, Iran, in preparation for the day that it will have the bomb, has already developed missiles capable of carrying nukes that can reach the eastern half of Europe. Is this a matter of indifference to you? I doubt it is to the Euros? It is why we are having to establish anti missile missiles in eastern Europe, much to the irriation of the Russians, who as I type are invading Georgia in retaliation for our doing so (as well as our stupid support of separating Kosovo). At what point do you think we need to act? Only when it becomes even more difficult to do something about it?
I think it was in the Iran thread that I posted that Iran has tested launching from boats. What this means is that with one speacially prepared tramp steamer, one nuclear bomb, and their existing missiles, that Iran could deniably hand off and launch a nuclear bomb and explode it high over the continental US and the EMP (electric magnetic pulse) could/would wipe out a very large percentage of our internet, computers, the records stored thereon etc.
"I assure you, we have enough problems to worry about, but worrying about Muslims invading America is very low our my list. Actually, I know quite a few; they are doctors and attorneys and they are all wonderful people. Unlike you, I don't think think they are all evil and a threat to America. I think you will find every race has good and bad; it is too bad you focus and seem to hate minorities; Muslims and Asians in particular, yet you are a minority. Rather odd...?"
As discussed the frontal military invasion is not the issue. The invidious and vicious logic of 4th Gen Warfare is the issue.
But let us turn to Islam itself. As I hope you have already noticed, quite a few threads on this forun are dedicated to exploring the question of the nature of Islam here and around the world. Have you read them? I know that they are quite long but I encourage you to put aside the time to go back and read through them-- it is way this forum organizes the content of threads the way it does; so that readers such as you can study a particular theme. Yes the investment of your time will be substantial, but I think you will come away with your opinion evolved from where it is now.
OF COURSE many Muslims are fine and wonderful people. Unfortunately there seems to be SOMETHING going on on a world-wide basis. IMHO actions such blowing up Buddhist statues in Afg (the act which first put the Taliban on the international radar screen) or beheading Buddhist monks and school teachers in Thailand, the Paristinian Revolt in France and so forth show that this is not a matter of blowback as the liberal guilt school of analysis would have it. We have seen the world-wide riots and the killings in response to the Danish cartoons. Iran issued a death sentence on Rushdie for writing a book and has had people involved in publishing the book killed even though they have not yet gotten to him. Just this past week we saw a US publishing company back off from publishing a novel about Mohammed's nine year old bride for fear of the same-- does it not give you a sense of the phenomenon of Islamic Fascism already beginning to reach into your life when certain books are not published here in America for fear???
My approach is this. The creed upon which this country is founded holds in part that our rights come from the Creator and amongst them are Life, Liberty, and the Pursuit of Happiness. That includes Freedom of Choice, informed by Free Speech, which is insured in part by Separation of Church and State. In my opinion, to be a good American one must believe in these things.
Because as good Americans we believe in tolerance and freedom of religion IMHO it becomes important to understand that if one believes in theocracy, and the right to silence by any means necessary those who mock or criticize. then we have a real problem. To the extent that a follower of Islam believes in theocracy, Islam becomes a political ideology as well as religion and that political ideology is seditious and as such the danger is proportionate to the numbers of the followers of this political ideology.
"As for "facts and proof" interesting how you ignore the ones you can't (torture) contest, but manage to find (you must have lots of time) an article (I suppose I could find an article or source to support that the world is still flat; ahhh the beauty of cut and paste) to support your biased minority opinion. I suppose if I had time (I don't) I could cut and paste articles to match your prolific articles one to one, but the overwhelming evidence contradicts you! Our own government acknowledges torture! Good grief man, wake up! We've done wrong! It's a given."
1) Four posts ago GM specifically responded you various assertions you made and I invite you to respond specfically to them.
2) For the second, and hopefully last, time I address this matter of pasting articles. GM has posted articles which are specifically responsive to the assertions and points you make. It doesn't take him a long time to find these articles precisely because he has run into the assertions you make many times before and simply already has them at hand and simply calling them "biased, minority opinion" simply does not engage with their content.
3) This matter of when interrogation techniques become torture and what we have or havent' actually done IS a difficult one. As I have previously stated here, I think the Bush-Rumbo team has committed some real errors here and in some respects gone places which I think we shouldn't have gone too.
OTOH I think there has been a tremendous amount of disingenuous and non-factual hypeventilating in the MSM e.g. when the NY Times reports Gitmo prisoners accusations as fact. Forgive me, but I think this misreportage has infected your perception of reality with a "There's so much smoke! Everyone knows there must be fire!" state of mind wherein it has become difficult for you to emotionally enagage with the very specific information which GM has put in your path.
"And basic Civil Rights have been denied; it might be you and me next time if we don't speak up. Accept it and please don't cut and paste absurdly biased articles. Open your eyes; the world is not us against Muslims and Asians (Brown People) etc.
The crack about Asians/Brown People reads to me as a smear. Unless you can point to something specific that GM has said, you should withdraw this comment.
"The world is getting smaller and we need to learn to live together."
Exactly. Not killing people for writing books, drawing cartoons, not believing in Islam would be a good idea, not killing school teachers for teachng girls, not beating up women for not wearing a potato sack from head to toe when its 120 degrees out would be a good start-- yes?.
"Most of my friends are very successful and work for large international corporations; they are not just American companies, but global companies and the world (Muslims, Asians, etc.) is their marketplace. No one seems to share you belief that a boogie man (Muslims) lives and threatens us behind every tree..."
You mischaracterize. Anyway, I'm hungry and go upstairs to make some breakfast.
IMHO the question presented is whether Muslims see this as a religious war with them against us, or whether they see this as a war between civilization and barbarism with them on the same side as us.
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Marc,
A short response; I think Iran should be stopped at all costs from developing a nuclear weapon (as should North Korea or others like them). While I prefer deplomacy, military action may be necessary. They simply must be stopped; period.
As for the "crack" "Asians/Brown People" in another post GM himself specifically referred to Asians as "Brown People"; that term seems to be his preference; my preferred term happens to be "Asians". Therefore my comment is not a smear, but simply a quote of his words.
Gotta go to work. I enjoyed yesterday, and I noticed you are not bad on the drums! :-D
James
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To provide context, I was pointing out how the so-called "peace movement" feigned concern for the Vietnamese when there was political advantage, but once the democrats cut off funding to South Vietnam and the communists had free hand to torture and fill the ground with mass graves, then the American/international left gave a big collective yawn and moved onto other things.
This is somewhat akin to today, where JDN is sooooooo concerned about the jihadists in gitmo, but little girls getting their genitals mutilated before being sold off in "marriage" to adult males decades older, the oppression, and sometimes wholesale murder of religious minorities, or reformers from within islam don't seem to merit his concern. Ayaan Hirsi Ali, Irshad Manji, and Dr. Wafa Sultan are a few people who's voices JDN should listen to. Funny, the reformers for islam do exist, but usually only behind bullet resistant glass. Why is that? Why does 9/11 seem so distant to you, JDN? How many more 9/11s will it take for you to take it seriously?
Here is a clue about al qaeda's m.o., once they select a target they'll return until they are successful. Los Angeles has been targeted and they'll keep trying until they succeed.
What's the acceptable number of US civilian casualties for you, JDN? Give me a better alternative for protecting this country, or how you're going to get the global jihad movement to sit in a big circle, hold hands and sing "kumbayah" with everyone else.
If you'd actually bother to read what i've posted, you'd understand that there are islamic religious scholars that issued religious rulings such as this: "Basing his claims on the Islamic principle of retaliation, Abu Ghaith argues that Muslims have the right to kill four million Americans, including one million children, to displace eight million Americans, and to cripple hundreds of thousands more. Moreover, Abu Ghaith asserts that Muslims are religiously entitled to use chemical and biological weapons in their war against the U.S."
Your solution is?
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James:
A pleasant surprise that you are willing to entertain military action against Iran.
If I understand correctly GM was mocking the liberal left with his use of "brown people", not advocating it as his own preferred term.
Tail wags for the kind words on my drumming-- I was worse than usual yesterday, my efforts at groove disrupted by trying to get the "chain of challenge" going. I wish you had introduced yourself personally so that I would have a face to put with our conversation here.
Marc
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Actually, I thought you did quite well at the drumming (the whole day went well); and while your replacement was much more attractive :-D your technique stood up. And yes I understand you were busy, that is why I didn't introduce myself. I was a spectator near the front row in jeans and a blue stripped dress shirt. But perhaps I should have; I think having a face behind the words is often helpful.
I did train knife for a while with Felix and have done some stick and I do enjoy watching. I miss the park, but I understand business.
Iran? Don't be surprised. No question, I am a big fan of the carrot, I like and prefer diplomacy, but if that doesn't work, use a big stick. The job needs to get done. Frankly, if we could put nuclear weapons back in the bottle, I would be all for it, but that is not going to happen. Therefore, limiting them is our only choice by whatever means is necessary. And that includes N. Korea, etc.
My comments, concerns on most of these forums is Civil Rights. Somehow, I think we need to accomplish our goal(s) without sacrificing our Civil Rights otherwise we are no better than they are - and I hate to see the erosion of our Civil Rights, basic human decency justified as being necessary to beat the enemy. History has shown us that road is fraught with danger. But within the law, if someone does wrong, punish them to the max for all I care and if I am on the jury I will vote to hang them if the crime is appropriate (you see there can be some tough California jurors) :-)
As for GM, his specific quote was "masses of brown people in mass graves." (not Asian, not Vietnamese, but BROWN PEOPLE in mass graves". It was his chosen preferred term; the term itself in it's context did not mock the the left, he easily could have used the word "Asian" or a specific group and accomplished the same point yet GM specifically chose "brown people" therefore I stand by my comment; I felt "brown people" to be derogatory, but perhaps others do not. If GM prefers to defend it or excuse his usage of the words, that is his prerogative. Although I decided not test the question by calling a few of the Asian fighters on Sunday "brown people". Don't know the reaction, but I do know I am getting older and I don't run that fast anymore. :-D
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Last June in Boumediene v. Bush, the Supreme Court ruled for the first time in our history that aliens captured and held as enemy combatants abroad (in this case, at the Guantanamo Bay military base) had a constitutional right to challenge their detentions by filing petitions for habeas corpus in federal court. The Court recognized that its holding was unprecedented. Yet it said that it was not deciding how such proceedings should be conducted, or even what the government must show to prevail.
David KleinYesterday, the federal district court in Washington concluded the first such habeas proceeding for six detainees. It held that the government had established a basis for holding only one of them as an enemy combatant. The court acknowledged that the evidence the detainees were planning to travel to Afghanistan to join the fight was perfectly appropriate for use as intelligence (the purpose for which it was collected) -- but that such evidence was not sufficient to carry the government's burden of proving in court that the detainees were enemy combatants.
Of course, we believe that the court should have reached a different conclusion with respect to the five detainees. But on a more general level, the court's order highlights the challenges that inhere in applying a civil litigation framework to wartime decisions that often must be made on the basis of the best available intelligence.
Other federal courts hearing the approximately 250 Gitmo habeas cases have sought to answer similar questions. But as different judges reach different answers -- and as some of those answers, I fear, create risks for our national security -- there remains a pressing need for Congress, working with the administration, to establish one set of rules that is both consistent with the Supreme Court's decision and recognizes the important national security and intelligence interests of the United States.
The questions with which courts have grappled are of critical importance. They include foundational issues: How should we define an "enemy combatant" during a conflict with a nontraditional enemy like al Qaeda? They include trial issues: What evidence may the government rely on when making that determination? And they include practical issues: What does it mean to order a detainee "released"? Can a court order release into the U.S. if a detainee cannot be transferred to his home country, either because it won't accept him or because we fear he might be mistreated upon his return?
In July, I urged Congress to work with the administration to fashion a uniform set of rules for these cases, expressing two basic concerns with leaving these matters to the courts. The first was that the courts would reach inconsistent decisions, leading to protracted litigation and the likelihood of different procedures in different cases.
The second was that the courts would not be well-positioned to address fully our national security and intelligence interests. As a former federal judge, I know well the constraints on federal courts. They cannot find facts on their own and are limited to the evidence presented by the parties before them. By contrast, Congress and the executive branch are well equipped to learn and evaluate facts, and skilled in balancing the difficult policy choices at stake.
In the absence of legislation, however, the courts have proceeded with these cases. I appreciate the difficulty of the task that these judges were given, and I believe they have done an admirable job under the circumstances. Nevertheless, we have seen courts diverging on key issues, meaning that the rules in each case will likely vary significantly and will likely be finally resolved only after multiple appeals.
More importantly, in many cases, the government has faced great difficulty in collecting and presenting evidence in a manner that protects the vital sources and methods upon which our national security depends. Indeed, lacking clear protections for classified information, we have found at times that we are simply unable to provide our best evidence to the court. Our national security framework, in short, is not -- and should not be -- designed primarily to handle the burdens of discovery accompanying ordinary civil litigation.
Although a new president comes to office in January, these cases are moving forward quickly and the need for legislation is urgent. It is not yet too late for Congress, working with both this administration, and members of the incoming administration, to come together to fix this problem and to develop a sensible framework. Contrary to the conventional wisdom, I believe that Americans agree more than they disagree about the principles that should govern this process.
First, Congress must make clear that release from the Guantanamo Bay military base does not mean that a detainee is entitled to enter the United States. Where a court finds that a detainee cannot be held as an enemy combatant, he should be returned to his home country or another country willing to receive him. He should not be permitted to jump the immigration line and enter this country.
Second, habeas corpus proceedings must protect the integrity of classified information and prevent disclosing that information to our enemies. Simply put, Congress should devise rules that allow the government to present the most highly classified information to the courts for their sole review.
We should not be forced to choose between continuing to hold a dangerous detainee and jeopardizing the intelligence sources and methods that Americans have risked their lives to obtain, and which our enemies may then render useless.
In today's Opinion Journal
REVIEW & OUTLOOK
The Waxman DemocratsAl Franken's MinnesotaAmerica the Popular
TODAY'S COLUMNISTS
Declarations: Keep Gates
– Peggy NoonanPotomac Watch: Obama's Senate Play
– Kimberley A. Strassel
COMMENTARY
Al Qaeda Detainees and Congress's Duty
– Michael B. MukaseyThe Auto Makers Are Already Bankrupt
– Paul IngrassiaLessons in Gross National Happiness
– Emily ParkerWhat Do We Really Know About the Uninsured?
– William SnyderThird, Congress should establish sensible and uniform procedures that will eliminate the risk of duplicative efforts and inconsistent rulings, and strike a reasonable balance between the detainees' right to a hearing and our national security needs. Such practical rules must assure that court proceedings do not interfere with the mission of our armed forces.
Federal courts have never before treated habeas corpus as requiring full-dress trials, even in ordinary criminal cases. It would be unwise to do so here, given the grave national security concerns at issue.
Devising a legal framework to review our military's detention decisions is an unprecedented challenge. It should not be left to the courts alone.
I firmly believe that Congress, the administration, and the incoming administration can work together to establish rules that at once provide a fair hearing and are respectful of the nation's security interests. It is not yet too late, and it certainly is worth the effort to try.
Mr. Mukasey is the attorney general of the United States.
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So, now the question is: Will Obama retain some or all of Bush's policies in protecting the nation, or will he "take the high road" and risk mass casualties on his watch?
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Piracy Is Terrorism
By DOUGLAS R. BURGESS Jr.
Published: December 5, 2008
NYT
THE golden age of piracy has returned. Just as Henry Every and William Kidd once made their fortunes in the Red Sea, a new generation has emerged, armed with grenade launchers and assault rifles, to threaten trade and distract the world’s navies. With the recent capture of the Saudi supertanker Sirius Star, a crime that once seemed remote and archaic has again claimed center stage.
And yet the world’s legal apparatus is woefully confused as to how to respond to piracy. Are the Somali pirates ordinary criminals, or a quasi-military force?
The question is not insignificant. It has virtually paralyzed the navies called to police the Gulf of Aden. The German Navy frigate Emden, on patrol this spring to intercept Qaeda vessels off the Somali coast, encountered pirate vessels attacking a Japanese tanker. But since it was allowed to intervene only if the pirates were defined as “terrorists,” the Emden had no choice but to let the pirates go. Currently, 13 vessels are held by pirates in the Gulf of Aden, while the navies of a dozen nations circle almost helplessly.
The legal confusion extends to what happens once pirates have been caught. In theory, any nation can shoulder the burden of prosecution. In fact, few are eager to do so.
Prosecuting pirates puts enormous strain on a country’s legal system. A state whose ship was not attacked, and whose only involvement with the incident was as rescuer, might balk at being asked to foot the bill for lengthy and costly proceedings. Yet it might find itself forced to do so, if neither the victim’s nor the pirates’ state is willing. As Somalia has not had a recognized government since the early 1990s, the situation is all the more precarious for would-be capturers. The result is that ship owners, knowing that no rescue is imminent, pay the ransom. This emboldens the pirates further, and the problem worsens.
Fortunately, there is a way out of this legal morass. Indeed, the law is very clear — we just seem to have forgotten about it.
The solution to piracy lies in the very nature of piracy itself. The Roman lawmaker Cicero defined piracy as a crime against civilization itself, which English jurist Edward Coke famously rephrased as “hostis humani generis” — enemies of the human race. As such, they were enemies not of one state but of all states, and correspondingly all states shared in the burden of capturing them.
From this precept came the doctrine of universal jurisdiction, meaning that pirates — unlike any other criminals — could be captured wherever they were found, by anyone who found them. This recognition of piracy’s unique threat was the cornerstone of international law for more than 2,000 years.
Though you wouldn’t guess it from the current situation, the law is surprisingly clear. The definition of pirates as enemies of the human race is reaffirmed in British and American trial law and in numerous treaties.
As a customary international law (albeit one that has fallen out of use since the decline of traditional piracy) it cuts through the Gordian knot of individual states’ engagement rules. Pirates are not ordinary criminals. They are not enemy combatants. They are a hybrid, recognized as such for thousands of years, and can be seized at will by anyone, at any time, anywhere they are found.
And what of the Emden’s problem? Are pirates a species of terrorist? In short, yes. The same definition of pirates as hostis humani generis could also be applied to international organized terrorism. Both crimes involve bands of brigands that divorce themselves from their nation-states and form extraterritorial enclaves; both aim at civilians; both involve acts of homicide and destruction, as the United Nations Convention on the High Seas stipulates, “for private ends.”
For this reason, it seems sensible that the United States and the international community adopt a new, shared legal definition that would recognize the link between piracy and terrorism. This could take the form of an act of Congress or, more broadly, a new jurisdiction for piracy and terrorism cases at the International Criminal Court.
There is ample precedent. In the 1970s, the hijacking of airliners was defined by the United Nations as “aerial piracy.” In 1985, when Palestinian terrorists seized the cruise ship Achille Lauro and held its passengers hostage, President Ronald Reagan called the hijackers “pirates.” Recent evidence also indicates that the Somali pirates hand over a part of their millions in ransom money to Al Shabaab, the Somali rebel group that has been linked to Al Qaeda.
The similarities and overlaps between the two crimes have prompted some jurists to advocate abandoning the term piracy altogether in favor of “maritime terrorism.” By reasserting the traditional definition of pirates as hostis humani generis, and linking it to terrorism, the United States and other nations will not only gain a powerful tool in fighting the Somali pirates, but other incidents of terrorism around the world as well.
Recognizing piracy as an international crime will do something else: It will give individual states that don’t want to prosecute pirates an alternative — the international court. If pirates are recognized under their traditional international legal status — as neither ordinary criminals nor combatants, but enemies of the human race — states will have a much freer hand in capturing them. If piracy falls within the jurisdiction of the international court, states will not need to shoulder the burden of prosecution alone.
Today the world’s navies are hamstrung by conflicting laws and the absence of an international code. A comprehensive legal framework is the only way to break the stalemate off Somalia. In a trial before the Old Bailey in 1696, Dr. Henry Newton, the Admiralty advocate, declared, “Suffer pirates and the commerce of the world must cease.”
More than 300 years later, the world is suffering again. Fortunately, this time we have the answer.
Douglas R. Burgess Jr. is the author of “The Pirates’ Pact: The Secret Alliances Between History’s Most Notorious Buccaneers and Colonial America.”
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A funny thing happened on the road to Barack Obama's inaugural: America became open to rational debate on Guantanamo.
AP
What should we do with people like Khalid Sheikh Mohammed?
Not all that long ago, Guantanamo was simply one more manifestation of the wickedness of George W. Bush. Back then, the operating assumption appeared to be that the only people being held at Guantanamo were innocent goat herders whose only crime was to be in the wrong place at the wrong time. As a result, the focus was on detainee abuse and their lack of rights, as witness an Associated Press headline from last December: "Lawyers complain iguanas at Guantanamo get more legal protection than detainees."
One year later, we now have Khalid Sheikh Mohammed and four other 9/11 plotters at Gitmo saying they want to plead guilty. And the headlines have begun to concede that closing the detention center will not be as easy as the critics suggested. "Closing detainee camp a minefield of critical steps," notes the Miami Herald. "Closing it may be the easy part; With Guantanamo, the issue for Obama will be deciding what to do with the 250 prisoners, experts say" reports the L.A. Times. "Close Guantanamo prison? Sure. But that's the easy part," says USA Today.
What unites all these stories is the acknowledgment of the basic fact of Guantanamo: The problem is the people, not the place.
As evidence of this new openness, the New York Times recently ran a piece reporting that "even some liberals are arguing that to deal realistically with terrorism, the new administration should seek Congressional authority for preventive detention of terrorism suspects deemed too dangerous to release even if they cannot be successfully prosecuted."
Exactly. The real issue isn't even so much the idea of trying these men in federal courts, which has already been done with Zacarias Moussaoui. The real issues for the president-elect are as follows: Where in America would you put these men? Would you release them on American soil if they are found not guilty? What about those whose home countries will not take them back? And what do you do with the toughest cases: those for whom the evidence is insufficient for a trial, but sufficient to tell us they are far too dangerous to release?
During the campaign, of course, both John McCain and Barack Obama vowed to close Gitmo down. But a President Obama will likely find it easier to do the prudent thing. As a Republican hawk charged by his opponent with representing a third Bush term, Mr. McCain would have been under immense pressure to prove that he wasn't George W. Bush. And a hasty closing of Guantanamo would have been a high-profile way to do it.
Fortunately, Mr. Obama is under no such pressure. For one thing, his opposition to the war gives him better credentials to do the wise thing here. For another, at least during his "honeymoon" period, the press is likely to give him a pass for whatever he comes up with -- even if the substance of what he decides seems to echo his predecessor.
In today's Opinion Journal
REVIEW & OUTLOOK
The Obama Health-Care ExpressFight Racism, U.N.-StyleLet Ford Save Ford
TODAY'S COLUMNISTS
Main Street: Now for an Honest Debate on Gitmo
– William McGurnGlobal View: Obama's Team of Conformists
– Bret Stephens
COMMENTARY
Getting Out of the Credit Mess
– Harvey GolubRestore the Uptick Rule, Restore Confidence
– Charles R. SchwabHolding CEOs Accountable
– Jonathan MaceyYes, it's a double standard. But it could turn out to be a good thing for the nation. What the American people need today is a sensible policy that recognizes three facts: that terrorists present a unique challenge to our rules of war; that capturing and holding terrorists is different from capturing and holding criminals or prisoners of war; and that the men and women who set up Guantanamo did so not because they were out to shred the Constitution but because, faced with some very imperfect choices, this was thought to be the best way to protect the American people.
It's true that Mr. Obama repeated his pledge to close Guantanamo during his recent "60 Minutes" interview. But he also declined to set a date. No doubt he is now realizing a hard truth. While senators can say what they please and go to sleep untroubled, presidents cannot escape the consequences of their decisions.
Jack Goldsmith, a Harvard law professor who served as assistant attorney general in the Justice Department's Office of Legal Counsel, hopes we might finally be getting a real debate. Though he has criticized some of the legal reasoning behind the Bush administration's terror policies, he says the animus against President Bush has corrupted our public discourse by making the issue the character of the good men and women trying to protect us rather than the enemy they were trying to stop.
Mr. Goldsmith notes that Mr. Obama is in a position to end the acrimony and strike a prudent way forward. "The single best thing about the election of Obama," he says, "may be that we now have a chance to view the terror threat without the distorting lens of Bush hatred."
Write to MainStreet@wsj.com
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http://counterterrorismblog.org/2008/12/print/guantanamos_jihad_the_show_beg.php
Counterterrorism Blog
Guantanamo’s Jihad: The Show Begins…
By Walid Phares
Al Qaeda’s great moment for propaganda has arrived, just as I predicted it would when I wrote about this in June. The Guantanamo trials will provide leading figures in the 9/11 massacre their “moment” to deliver a blow to America’s psyche, image and legal system.
As predicted, almost to the letter in my analysis in June, the men charged with plotting the September 11 attacks have declared their readiness to make confessions. According to Associated Press the military judge assigned to their war crimes trial at Guantanamo Bay read aloud a letter in which the five co-defendants said they request an immediate hearing session “to announce our confessions.” The AP report added that Khalid Sheikh Mohammed (aka KSM) has already told interrogators he was the mastermind of the attacks. “Now he’s telling the judge that he and the others want to make confessions at the trial.” The judge at the pre-trial hearing, Army Col. Stephen Henley, is asking each defendant if they are prepared to enter a plea. Three have agreed to do so.
So, is there an Al Qaeda plan being put into motion on the inside? Most likely there is as our knowledge of Al Qaeda training instructions has shown. -Both the government and media of the United States are ill-prepared for this type of jihadi propaganda warfare. Seven years after the beginning of the so-called “War on Terror,” the enemy’s ideology, strategies and methods still haven’t been officially identified. It is like using a Word War I mind set to fight World War II terror strategies.
Here is what the jihadists, both on the inside and the outside of the Guantanamo detention center are planning for:
First, Khalid Sheikh Mohammed and his comrades will use the so-called confessions deal to build a psychological environment for a martyrdom case: “istishaad.” They aren’t interested in saving their lives (at first, although they think they could) but in providing a maximum damage to their enemy through the tribunal proceedings. They will claim the court is not legitimate, the entire Guantanamo process as illegal and that they are ready to die as Jihadis in the path to Allah. Their first target is to grant themselves, in the eyes of millions of militants around the world the status of “Shuhada,” martyrs, even though they could survive it.
The “confessions” turned declaration of victory will be picked up by Al Qaeda and other jihadi groups and transformed into vital material for propaganda: videos, audio and texts. The “show” inside court will be used for indoctrination purpose around the world. A myth will be set in motion and emotional reactions to the “story” will be mutated into future revenge operations.
From there on, leave it to the architects of jihadi propaganda: statements made by the defendants will be used by operatives online, in the chat rooms but also on Al Jazeera (by callers and guests), and in other medium to widen the radicalization of youth in the Arab and Muslim world and within the West as well. An Al Qaeda “control room” will use the feed from the Guantanamo trials to produce a victory in their war of ideas against democracies. The fate of the 9/11 detainees isn’t the issue to Al Qaeda. By pledging loyalty to the “mission” through the so-called “confessions” or statements they have already sacrificed themselves ideologically. What KSM and his comrades are offering to their “brothers” around the world is an unbeatable series of images, footage and audio — pure gold for Al Qaeda propagandists and ideologues.
Ironically, during this time of transition between the two administrations in both the Bush and Obama teams may find they overlook the direct goals of Al Qaeda’s plan. As national security teams meet and wrestle over future options in the War on Terror (will some possibly end up just calling it a “war”?) the other side is waging its own war methodically, relentlessly and unstoppably. Every inch of room to maneuver is used to the maximum to weaken the enemy, even from within the walls of the detention centers. And that is only at Guantanamo that the defendants are openly admitting their responsibilities in spreading terror. Wait until the processing of jihadists hits our U.S. courts here on the mainland. What we see now is just the beginning.
Dr. Walid Phares is Director of the Future Terrorism Project at the Foundation for the Defense of Democracies
By Walid Phares on December 8, 2008 11:27 PM
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Judge orders 17 Guantanamo detainees released to U.S.
--------------------------------------------------------------------------------
Marisa Taylor
- McClatchy Newspapers
WASHINGTON — In a dramatic setback for the Bush administration, a federal judge ordered the U.S. government Tuesday to immediately release and transfer to the United States 17 Chinese-born Muslims detained for almost seven years at Guantanamo.
The decision marked the first time a court has ordered the transfer of Guantanamo detainees to the U.S. and could prompt the release of dozens of other Guantanamo detainees who have been cleared for release by the military but who can’t leave because the government hasn’t found a country to send them to.
Judge Ricardo Urbina declared the continued detention of the group from the ethnic Uighur minority to be “unlawful” and ordered the government to bring the detainees to the U.S. by Friday.
Reading his decision from the bench, Urbina said the government could no longer detain the Uighurs after conceding they weren’t enemy combatants. The judge also agreed with the Uighurs’ lawyers, who’ve argued the group can’t be returned to China because they could be tortured.
Urbina warned the government not to attempt to circumvent the group’s release by detaining them on immigration holds once they reach the U.S., saying “no one is to bother these people until I see them.”
Administration officials said they intend to file an "emergency motion" Tuesday night with the federal appeals court in Washington to block the ruling.
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"This decision, we believe, is contrary to our laws, including federal immigration statutes passed by Congress," said White House spokeswoman Dana Perino. "The district court’s ruling, if allowed to stand, could be used as precedent for other detainees held at Guantanamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country."
Urbina, who at times during the hearing appeared to scold Justice Department lawyers, noted the government hadn’t charged the detainees with any crime, revealed any evidence justifying their detention and then “stymied” their release by continuing to assert erroneously that they were enemy combatants.
When government lawyers started to raise security concerns, the judge challenged them to specify what they were, chiding them that “you’ve had seven years to study this.”
He described the government’s use of certain legal jargon as “Kafkaesque,” saying it “begs the question of whether they ever were enemy combatants.”
Supporters from the Uighur-American community who attended the hearing reacted to his ruling with loud applause and cheers.
“The American system has given us justice,” said Rebia Kadeer, president of the World Uighur Congress.
Citing “serious separation-of-power issues,” Justice Department lawyers immediately requested a delay to allow the government time to consider whether to appeal. The judge, however, refused and instead set a hearing to determine the conditions of release.
Despite the prospect of the government’s appeal, Kadeer said: “I believe they will be released.” Kadeer, a leader of the expatriate Uighur community, was once detained for several years in a Chinese prison as a political dissident, but released and sent to the U.S. after the State Department pressured the Chinese government.
Urbina, a Clinton appointee, said the men will be permitted to stay with Uighur families in the Washington area, but will be expected to check in with the court on a regular basis. Next week, the court will consider whether to impose other conditions of their release.
The Uighurs were first shipped to Guantanamo from Afghanistan after their capture by U.S. troops at a weapons training camp. The military accused the group of being members of the East Turkistan Islamic Movement and said the camp in Afghanistan's Tora Bora mountains was run by the Taliban. But the Uighurs denied being members of the group and receiving support from the Taliban.
The Uighurs also have insisted that they consider the U.S. to be an ally in their fight for more political freedom in China. Declassified documents turned over to their lawyers showed that as early as 2003 government officials had concluded they were not enemy combatants and had recommended releasing them.
Attorneys representing the group hailed the ruling as landmark and predicted it could lead to other releases.
“The decision is extraordinary,” said Neil McGaraghan, one of the attorneys. “This is finally a step toward justice.”
The decision comes after a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit overturned as “invalid” a military tribunal's conclusion that one of the prisoners, Huzaifa Parhat, is an enemy combatant. The court, the same one that could hear the department's appeal, directed the Pentagon either to release or transfer Parhat or to hold a new tribunal hearing “consistent with the court's opinion.”
After the appellate ruling, the government conceded that it no longer considered any of the Uighurs enemy combatants.
However, Justice Department lawyers continued to argue Tuesday that the release of the group into the U.S. could pose a security risk and warned that the decision could harm international relations with China. The judge dismissed both arguments. Justice Department lawyer John O’Quinn said he did not mean to suggest that the government would immediately move to detain the group once they were in the U.S.
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http://michellemalkin.com/2009/01/11/obama-gee-this-gitmo-thing-is-more-complicated-than-i-thought/
Obama: Gee, this Gitmo thing is more complicated than I thought
By Michelle Malkin • January 11, 2009 12:00 PM
I razzed Team Obama over their newfound appreciation of the nuances of closing Gitmo back in November. Now, we are hearing it from the Messiah directly.
This morning on ABC’s Sunday show, he admitted that his recklessly simplistic promise to the nutroots to shut down the detention facility had run into some barriers.
Namely: Reality.
When he says “a lot of people,” he means himself.
President-elect Barack Obama said this weekend that he does not expect to close Guantanamo Bay in his first 100 days in office.
“I think it’s going to take some time and our legal teams are working in consultation with our national security apparatus as we speak to help design exactly what we need to do,” Obama said in an exclusive “This Week” interview with George Stephanopoulos, his first since arriving in Washington.
“It is more difficult than I think a lot of people realize,” the president-elect explained. “Part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom may be very dangerous who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted even though it’s true. And so how to balance creating a process that adheres to rule of law, habeas corpus, basic principles of Anglo-American legal system, by doing it in a way that doesn’t result in releasing people who are intent on blowing us up.”
Like I said two months ago: Nothing clarifies the mind like a jihadi boomerang.
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As usual, GM makes many powerful points and I agree with most of them. As usual JDN is often , , , imprecise, specious and excessive in making his points (said with love JDN). That said, I find myself at odds with some of our practices. Leaving somebody naked and wet in 50 degrees? What is the point? Is there a ticking bomb scenario? My understanding is no there is not, so I find no justification for this sort of practice. Likewise the extended standing and sleep deprivation leaves me wondering.
The readings I have done (e.g. The Interrogator's War by someone who interrogated in the early days of Afg) persuade me that this sort of methodology simply is not very effective. Nor does it leave me proud as an American.
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I think that is a good Litmus Test; "does it leave me proud as an American".
Good men often disagree, but if one's answer is an emphatic "yes" to that question,
other issues are of secondary importance and can usually be worked out.
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http://www.youtube.com/watch?v=67L35y77cWQ&feature=related
"Torture victims"
If not, why not?
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Ummm, , , because any of them can choose to leave?
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**So, what our military faces in training is torture when applied to al qaeda terrorists? Give me your interrogation methods that will work while meeting your standard.**
http://www.defenselink.mil/news/newsarticle.aspx?id=16270
Al Qaeda Manual Drives Detainee Behavior at Guantanamo Bay
By Donna Miles
American Forces Press Service
WASHINGTON, June 29, 2005 – If you're a Muslim extremist captured while fighting your holy war against "infidels," avoid revealing information at all costs, don't give your real name and claim that you were mistreated or tortured during your detention.
This instruction comes straight from the pages of an official al Qaeda training manual, and officials at the detention facility at Naval Station Guantanamo Bay, Cuba, say they see clear evidence that detainees are well-versed in its contents.
Police in Manchester, England, discovered the manual, which has come to be known as the "Manchester document," in 2000 while searching computer files found in the home of a known al Qaeda member. The contents were introduced as evidence into the 2001 trial of terrorists who bombed the U.S. embassies in Tanzania and Kenya in 1998.
The FBI translated the document into English, and it is posted on the Justice Department's Web site.
The 18-chapter manual provides a detailed window into al Qaeda's network and its procedures for waging jihad - from conducting surveillance operations to carrying out assassinations to working with forged documents.
The closing chapter teaches al Qaeda operatives how to operate in a prison or detention center. It directs detainees to "insist on proving that torture was inflicted" and to "complain of mistreatment while in prison."
Chapter 17 instructs them to "be careful not to give the enemy any vital information" during interrogations.
Another section of the manual directs commanders to teach their operatives what to say if they're captured, and to explain it "more than once to ensure that they have assimilated it." To reinforce the message, it tells commanders to have operatives "explain it back to the commander."
And at the Guantanamo Bay detention center, detainees take this instruction to heart. Many of the more than 500 detainees are "uncooperative" in providing intelligence, Army Brig. Gen. Jay Hood, commander of Joint Task Force Guantanamo, told military analysts who traveled to the facility June 24 and reiterated today during a hearing before the House Armed Services Committee.
Some detainees have never uttered a single word during more than three years of interrogation. Others give false names or refuse to offer their real names.
This can prove challenging for interrogators at the facility, because many detainees "follow the al Qaeda SOP (standard operating procedures) to the T," according to Army Col. John Hadjis, chief of staff for Joint Task Force Guantanamo.
Officials say they see evidence of the al Qaeda-directed misinformation campaign in allegations of detainee abuse and mishandling of the Koran at Guantanamo Bay.
Defense Secretary Donald H. Rumsfeld expressed frustration over this effort during a June 21 interview on the "Tony Snow Show."
"These detainees are trained to lie, they're trained to say they were tortured, and the minute we release them or the minute they get a lawyer, very frequently they'll go out and they will announce that they've been tortured," Rumsfeld said.
The media jumps on these claims, reporting them as "another example of torture," the secretary said, "when in fact, (terrorists have) been trained to do that, and their training manual says so."
During a February 2004 Pentagon news conference, a DoD official said new information provided by detainees during questioning is analyzed to determine its reliability.
"Unfortunately, many detainees are deceptive and prefer to conceal their identifies and their actions," said Paul Butler, principal deputy assistant secretary for special operations and low-intensity conflict.
Butler said the Manchester document includes "a large section which teaches al Qaeda operatives counterinterrogation techniques: how to lie, how to minimize your role."
The document, he said, has surfaced in various locations, including Afghanistan.
The manual's preface offers a chilling reminder of the mentality that drives al Qaeda disciples and the lengths they will go to for their cause.
"The confrontation that we are calling for ... does not know Socratic debates, ... Platonic ideals ... nor Aristotelian diplomacy," its opening pages read. "But it knows the dialogue of bullets, the ideals of assassination, bombing and destruction, and the diplomacy of the cannon and machine gun."
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"So, what our military faces in training is torture when applied to al qaeda terrorists? Give me your interrogation methods that will work while meeting your standard."
Jumping in (the question was aimed at Crafty), I had a toothache over the holiday which is unpleasant while it is happening. The thought crossed my mind that morally IMO we perhaps could inflict pain up to the level of the common toothache, no worse than what a terrorist might experience naturally in the course of his life, to someone who is already guilty and captured in the interest of preventing a mass murder. I'm not suggesting it's a good idea, just saying it's okay with me to leave it on the table for those responsible for our security.
Waterboarding as I understand it is more a matter of tricking them than inflicting harm or pain.
To understand torture better, look closely at the facilities and evidence uncovered from Saddam's regime. Let's resolve to not be like them.
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Israel uses "enhanced interrogation" techniques. Ok for them?
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http://www.mfa.gov.il/MFA/Government/Law/Legal%20Issues%20and%20Rulings/Israel-s%20Interrogation%20Policies%20and%20Practices%20-%20De
Israel-s Interrogation Policies and Practices - Dec-96
1 Dec 1996
Israel's Interrogation Policies and Practices
STATE OF ISRAEL
MINISTRY OF JUSTICE
TAMAR GAULAN, Adv.
Director, Human Rights and International Relations Dept.
December 1996
Israeli law strictly forbids all forms of torture or maltreatment. The Israeli Penal Code (1977) prohibits the use of force or violence against a person for the purpose of extorting from him a confession to an offense or information relating to an offense. Israel signed and ratified the U.N. Convention Against Torture and Cruel, Inhuman or Humiliating Treatment.
The State of Israel maintains that the basic human rights of all persons under its jurisdiction must never be violated, regardless of the crimes that the individual may have committed. Israel recognizes, however, its responsibility to protect the lives of both Jews and Arabs from harm at the hands of Palestinian terrorist organizations active throughout the world. To prevent terrorism effectively while ensuring that the basic human rights of even the most dangerous of criminals are protected, the Israeli authorities have adopted strict rules for the handling of interrogations. These guidelines are designed to enable investigators to obtain crucial information on terrorist activities or organizations from suspects who, for obvious reasons, would not volunteer information on their activities, while ensuring that the suspects are not maltreated.
The Landau Commission
The basic guidelines on interrogation were set by the Landau Commission of Inquiry. The Commission, headed by former Supreme Court President, Justice Moshe Landau, was appointed following a decision of the Israeli government in 1987 to examine the General Security Service's (GSS) methods of interrogation of terrorist suspects. In order to compile its recommendations, the Landau Commission examined international human rights law standards, existing Israeli legislation prohibiting torture and maltreatment, and guidelines of other democracies confronted with the threat of terrorism.
The Landau Commission envisioned its task as defining "with as much precision as possible, the boundaries of what is permitted to the interrogator and mainly what is prohibited to him." The Commission determined that in dealing with dangerous terrorists who represent a grave threat to the State of Israel and its citizens, the use of a moderate degree of pressure, including physical pressure, in order to obtain crucial information, is unavoidable under certain circumstances. Such circumstances include situations in which information which an interrogator can obtain from the suspect can prevent imminent murder, or where the suspect possesses vital information on a terrorist organization which could not be uncovered by any other source (e.g., locations of arms or explosive caches or planned acts of terrorism).
The Landau Commission recognized the danger posed to the democratic values of the State of Israel should its agents abuse their power by using unnecessary or unduly harsh forms of pressure. As a result, the Commission recommended that psychological forms of pressure be used predominantly and that only "moderate physical pressure" (not unknown in other democratic countries) be sanctioned in limited cases where the degree of anticipated danger is considerable.
It should be noted that the use of such moderate pressure is in accordance with international law. For example, when asked to examine certain methods of interrogation used by Northern Ireland police against IRA terrorists, the European Human Rights Court ruled that "ll-treatment must reach a certain severe level in order to be included in the ban [of torture and cruel, inhuman or degrading punishment] contained in Article 3 [of the European Convention of Human Rights]." In its ruling, that Court disagreed with the view of the Commission that the above mentioned methods could be construed as torture, though it ruled that their application in combination amounted to inhuman and degrading treatment. The question whether each of these measures separately would amount to inhuman and degrading treatment was therefore left open by the Court.
The Landau Commission was aware that the issue of moderate pressure during interrogation is both a serious and sensitive one. The guidelines regarding interrogation provide for limited forms of pressure under very specific circumstances, to be determined on a case by case basis. They by no means authorize indiscriminate use of force. Rather, specific circumstances have been identified and interrogation practices have been strictly defined in a manner that, in the opinion of the Landau Commission, "if these boundaries are maintained exactly in letter and in spirit, the effectiveness of the interrogation will be assured, while at the same time it will be far from the use of physical or mental torture, maltreatment of the person being interrogated, or the degradation of his human dignity. "
To ensure that disproportionate pressure is not used, the Landau Commission identified several measures, which have been adopted and are now in force, namely:
1. Disproportionate exertion of pressure on the suspect is not permissible pressure must never reach the level of physical torture or maltreatment of the suspect, or grievous harm to his honor which deprives him of his human dignity.
2. The use of less serious measures must be weighed against the degree of anticipated danger, according to the information in the possession of the interrogator.
3. The physical and psychological means of pressure permitted for use by an interrogator must be defined and limited in advance, by issuing binding directives.
4. There must be strict supervision of the implementation in practice of the directives given to GSS interrogators.
5. The interrogators' supervisors must react firmly and without hesitation to every deviation from the permissible, imposing disciplinary punishment, and in serious cases, causing criminal proceedings to be instituted against the offending interrogator.
Once these measures were set down, the Landau Commission went on, in a second section of its report, to precisely detail the exact forms of pressure permissible to the GSS interrogators. This section has been kept secret out of concern that, should the narrow restrictions binding the interrogators be known to the suspects undergoing questioning, the interrogation would be less effective. Palestinian terrorist organizations commonly instruct their members, and have even printed a manual, on techniques of withstanding GSS questioning without disclosing any information. It stands to reason that publishing GSS guidelines would not only enable the organizations to prepare their members better for questioning, but would reassure the suspect as to his ability to undergo interrogation methods without exposing vital information, thus depriving the GSS of the psychological tool of uncertainty.
Safeguards
Since the interrogation guidelines are secret, the Israeli government recognized the importance of establishing safeguards and a system of review of interrogation practices in order to insure that GSS investigators do not violate the guidelines. As a result, the GSS Comptroller was instructed to check every claim of torture or maltreatment during interrogation. From 1987 until the beginning of 1994, the Comptroller carried out this responsibility, initiating disciplinary or legal action against interrogators in cases where they have been found to have deviated from the legal guidelines. Early in 1994, in accordance with the recommendations of the Landau Commission, responsibility for investigation of claims of maltreatment was transferred to the Division for the Investigation of Police Misconduct in the Ministry of Justice under the direct supervision of the State Attorney.
The Landau Commission also recommended that there be external supervision of GSS activities. Since the Landau Commission issued its recommendations, the State Comptroller's Office has launched an examination of the GSS investigator's unit. Upon the completion of its inquiry, the State Comptroller's findings will be submitted to a special subcommittee of the Knesset (Israeli Parliament) State Comptroller Committee. A further review procedure exists whereby the conclusions of the special ministerial committee, detailed below, as well as the annual reports of the investigators' unit are brought to the attention of the Sub-committee for Services of the Knesset Foreign Affairs and Defence Committee.
In addition, an agreement between the State of Israel and the International Committee of the Red Cross (ICRC) provides for the monitoring of conditions of detention. Delegates from the ICRC are permitted to meet with detainees in private within 14 days of the arrest. ICRC doctors may examine detainees who complain of improper treatment. All complaints made by the ICRC regarding treatment of prisoners are fully investigated by the relevant Israeli authorities and the findings are made known to the ICRC.
In May 1991, a special ad-hoc committee composed of members of the GSS and the Justice Ministry was appointed to review complaints against the conduct of GSS investigators during interrogation. The committee identified a number of cases in which investigators did not act in accordance with the guidelines for treatment of detainees. As a result of the Committee's findings, action has been taken against GSS investigators involved in these cases.
Review
As recommended by the Landau Commission, a special ministerial committee headed by the Prime Minister was established in 1988 under the previous government to review periodically the interrogation guidelines themselves. This committee held several sessions but its work was cut short by the national elections which were held in June, 1992. Following the establishment of the new government in July, 1992 a new ministerial sub-committee composed of the Ministers of Justice and Police was appointed in order to review the guidelines. On April 22, 1993, the Ministerial sub-committee detrmined that certain changes should be made in the General Security Service guidelines. On the basis of the sub-committee's recommendations, new guidelines were issued to General Security Service investigators. The new guidelines clearly stipulate that the need and justification for the use of limited pressure by investigators must be established in every case, according to its own special circumstances. The updated guidelines also point out that the use of exceptional methods was intended only for situations where vital information is being concealed and not in ordre to humiliate, harm or mistreat those under investigation. In addition, in the new guidelines, it is expressly stated that it is prohibited to deny a person under investigation food or drink, to refuse him permission to use a bathroom or to subject him to extreme temperatures.
In 1991, a petition was submitted to the Supreme Court of Israel sitting as the High Court of Justice by a detainee named Murad Adnan Salkhat and a private group named the Israel Public Committee Against Torture, challenging the legality of the guidelines and demanding that they be made public. The Court dismissed the petition and confirmed the necessity for secrecy.
Conclusion
The State of Israel prides itself on having an open society with a democratic legal system which is subject to public scrutiny and which respects human values. As a result, any allegations of maltreatment are taken seriously and are investigated on a case by case basis. However, it should be noted that individuals arrested, tried or convicted have both personal and political motives for fabricating claims of maltreatment during interrogation. Personal motives include the desire to have a confession ruled inadmissible at trial, to present oneself as a "martyr", or to escape retribution from Palestinian terrorist cells which have often assassinated or tortured individuals who have given information to the Israeli authorities. Political motives include the desire to spread anti-Israel disinformation in the form of unfounded human rights complaints, in order to undermine Israel's human rights image or discredit the Ggeneral Security Service.
It is the unfortunate reality that, during times of political unrest and violence, restrictions must be placed on individuals who threaten the welfare of the State and its citizens. This paper has been aimed at demonstrating that, despite the harsh reality of continuing terrorism faced by the State of Israel, we are doing everything in our power to uphold the rights of all persons under our jurisdiction while ensuring the safety of innocent individuals.
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December 21, 2007, 6:51 a.m.
The CIA Interrogation Tapes
Remember when this was a real war?
By Andrew C. McCarthy
The controversy over interrogation tapes destroyed by the CIA is a farce rich in high-dudgeon hypocrisy. It is the latest act in our square-peg, round-hole experiment in judicializing warfare — in intruding the non-political branch into the quintessentially political realm of national defense.
WAR FOOTING
Al-Qaeda’s air raid on 9/11 eclipsed Pearl Harbor in devastation and shock value. It exceeded anything ever accomplished by Nazi Germany or the Soviet Union. It was a domestic military strike, wiping out thousands of American civilians. The enemy, in previous attacks, had already bombed a U.S. naval destroyer and two U.S. embassies.
As it happened, the suicide hijackings also violated several American criminal laws because the jihadist attackers were not privileged combatants — i.e., honorable enemy soldiers who conduct their operations within the laws and customs of war and who are therefore permitted to use lethal force. The civilian penal law, however, was a side issue. This was war, not law enforcement.
As a consequence, the nation assumed its war footing. For political reasons, the revisionist Left has referred to this effort as “the War on Terror of this administration” — to borrow the obnoxious phrase of Judge Anna Diggs Taylor, the Jimmy Carter appointee who tried to invalidate the NSA’s terrorist-surveillance program. But this was never just President Bush’s war. It was — it is — our war. The country’s war. This may seem like ancient history, but in the months after 9/11, we were not in Iraq. We were in the “good” War on Terror — the one Democrats supported, in word and deed, because they damn well knew Americans would tolerate nothing less.
We no longer wanted the Trial on Terror. After eight years of that approach, the mass casualties, the hundreds of billions in wreckage, the smoldering Pentagon, the stunning canyon where twin towers once stretched to the sky, all of it convinced us that a different kind of response was in order. That nation made a political decision to go to war.
This wasn’t just George W. Bush. On September 14, 2001, the House of Representatives approved a sweeping authorization for the use of military force by a vote of 420-1 (Rep. Barbara Lee (D., Calif.) was the lone naysayer). The vote in the Senate that day was 98-0. Six weeks later, the Patriot Act’s overhaul of intelligence tools for hunting down international terrorists was enacted in the upper and lower chambers by lop-sided margins of 98-1 and 357-66. America’s representatives were behind the war because the American people were behind the war. Even by 2004, when passions had cooled somewhat, John Kerry, the Democrats’ presidential nominee, promised Americans he would fight the war smarter than Bush, not that he wouldn’t fight it. Saying he wouldn’t fight it would have resulted in a walloping of McGovernite proportions.
The atmosphere of 2002 was one of forcible action. The American people demanded it. Our representatives in Congress were insistent that we would get it. Their own jobs hung in the balance. It was in that atmosphere that this military response, this war, began to result, as all wars do, in the capture of enemy operatives.
ARE YOU SURE YOU’RE BEING TOUGH ENOUGH?
Good intelligence is a premium in all wars but it was to be especially crucial in this one. Radical Islam does not have a territory to defend — we can’t bomb it into submission. It does not have a treasury we can seize to starve it out of existence. It is abetted by nation-states, but as a movement it is an illegitimate, non-state actor catalyzed by a supremacist ideology, meaning it is not the kind of enemy with which we could ever sign a treaty. There is no obvious scenario for when and how this war ends. The major asset we can acquire — the only one that will protect American lives — is intelligence: who the terrorists are, where they are hiding, and what they are planning to hit next.
Only by knowing and acting on such information can we hope to degrade radical Islam’s capacity to project the power of a belligerent rather than a criminal gang. A criminal gang, however fierce, can be brought to heel by prosecution. An incorrigible belligerent has to be vanquished, in war. And it is worth remembering, again, that we made the national decision to go to war, the object of which is to defeat the enemy by suppressing its capacity — not to convert the planet to our enlightened way of thinking.
Given the intelligence imperative, the CIA aptly commenced a special interrogation program. Here, I should stress which CIA we are talking about. This was not Langley’s secret-leaking, Plame-loving, analytical side — the one that seeks to control policy and throw presidential elections. This was the operations directorate: intelligence officers stationed in some of the planet’s worst hell-holes who, in courageous anonymity, put their lives on the line, day in and day out, to protect the United States.
The interrogation program was strictly for high-value al-Qaeda detainees, not the hundreds of other prisoners captured in the war, most of whom are low-level foot soldiers. The program was (and, one hopes, still is) aimed at the enemy’s top strategists, the jihadists who actually know about ongoing plots, secret cells, and efforts to use or acquire weapons of mass destruction — i.e., the features that enable radical Islam to project war-scale force.
The program pushed to the margins of the law. Regardless of what the revisionist Left is now saying, the only bright-line limit on the treatment of alien enemy combatants held outside the United States in 2002 was the federal law against torture. The United States did not outlaw cruel, inhuman and degrading treatment when it ratified the international anti-torture treaty in 1994 — it was not until 2005 that such treatment overseas was outlawed, and even then only ambiguously, no matter what Senators John McCain, Patrick Leahy, and others now claim. Congress could easily (and accountably) have made simulated drowning — waterboarding — unlawful. But it didn’t. It wouldn’t have dared done so in 2002; it didn’t do so in 2005 or 2006 despite specifically addressing war crimes; and it hasn’t done so to this day.
So the CIA used waterboarding. Not often (probably on only three top terrorists) and not frequently (it probably has not used the tactic since 2003). But agency interrogators used it — and other forcible methods too, methods that were even further removed than waterboarding from the heinous cruelty that is true torture.
The tactics worked. They resulted in the apprehension of other top jihadists, the mapping of terror cells, and the thwarting of plots. They saved lives. They degraded the enemy’s capacity.
The drivel that passes for argument about how forcible questioning doesn’t work wouldn’t pass the laugh test if we didn’t allow thought to be paralyzed by the demagogic invocation of “torture.” Think for a moment. The United States is not Saddam Hussein’s Iraq, the mullahs’ Iran, Putin’s Russia, Red China, or one of several other thuggish regimes in that gorgeous mosaic known as the “international community” — the purported loss of whose esteem is, according to today’s Left, supposed to keep us awake at night. (Personally, I would sleep quite well even if I actually believed Hosni Mubarak and Saudi Wahhabists were fretting over America’s regard for human rights.)
The United States doesn’t do show-trials; we collect intelligence. We don’t want lies; we need the truth. We are not using torture to coerce phony confessions or intimidate dissenters; we are a besieged people using forcible methods — not torture — to cull from hardened terrorists, trained to resist interrogation, information that can be corroborated and used to defeat the enemy. We do it to protect American lives. We are not sadists. If forcible methods didn’t work, it would be pointless to use them, and we wouldn’t. Further, if there hadn’t been an imminent threat of more 9/11s — and recall that bin Laden, Zawahiri and their cohort have been promising a repeat performance ever since the first one — we’d have contented ourselves with more anodyne methods, for however many months it took, fully aware that these hardest cases would probably never talk.
We weren’t violating any treaty obligations, and we weren’t laying the groundwork for any other nation that actually cares about its obligations to violate theirs. Al-Qaeda is not going to reciprocate humane treatment; you haven’t heard of any jihadist Gitmo because this enemy tortures and kills its captives — believe it or not, they don’t even let the International Red Cross come visit. But if we were fighting a nation-state entitled to Geneva Convention prisoner-of-war provisions, we would honor those provisions, demand nothing beyond name, rank and serial number, and expect our foes to honor them as well. The Left’s charge that we are international outlaws is as vapid as it is slanderous.
And in 2002, when it was vigorously supporting a war — not an indictment — against radical Islam, Congress understood that perfectly.
Beginning in 2002, top lawmakers from both parties, started getting briefings on the CIA program: its tough tactics, like waterboarding; its use of prison facilities outside the United States — quite consciously outside the jurisdiction of the federal courts and the procedural mandates of the criminal-justice system. These congressional heavyweights included Nancy Pelosi, then the Democrats’ Minority Leader, now the Speaker of the House of Representatives. As the years went by and the war ensued, there may have been as many as 30 such briefings.
Far from indignation, the Washington Post reports that the reaction was one of encouragement. Consistent with their overwhelming authorization of both the use of force and the Patriot Act measures, congressional leadership’s only apparent question of the CIA was whether it was being tough enough on the jihadists — whether the agency was being sufficiently coercive to get whatever life-saving intelligence there was to get.
OBSTRUCTION OF JUSTICE … OR THE WAR EFFORT?
The CIA goofed. Back in 2002, at the apex of public and congressional support for its efforts, it foolishly tape-recorded some of the interrogations of two top terrorists, Abu Zubaydah (al-Abideen Mohamed Hussein) and Abd al-Rahim al-Nashiri — respectively, a top bin Laden confidant (whose information led, among other things, to the capture of Khalid Sheikh Mohammed, the mastermind of 9/11), and the commander responsible for the murder of seventeen American sailors in the bombing of the U.S.S. Cole.
There was no legal requirement to make these tapes. The government generally does not tape-record interrogations. Even if that were not so, these jihadist leaders were not being interrogated to obtain confessions that could be used at trial. Coerced confessions are not admissible in American trials, and vainly trying to admit them would publicly expose classified tactics, allowing the enemy to train against them. We were not interested in trials. The nation had gone to war. We were interested in accurate, actionable intelligence that would help us win.
Once that information was preserved in reports or transcripts, the tapes were of no intelligence value. To the contrary, they were a liability because their exposure could have helped the enemy. Defeating the enemy being its priority, and the nation’s, the CIA destroyed the tapes in 2005.
When a nation goes to war — with the full-throated support of the public and a lopsided, authorization from the public’s representatives that is in every meaningful way a constitutional declaration of war — that war, that political act in furtherance of sovereign self-preservation, is paramount. It is more important than any criminal trial. It is more important than any investigation. It is more important than any civil litigation.
That is why, for example, the Supreme Court has repeatedly and recently reaffirmed the state secrets privilege, which grinds court cases to a halt when invoked. It is why an act of Congress, the Classified Information Procedures law, empowers the Attorney General to order federal judges not to disclose classified information, no matter how relevant it may be to the case at hand. The law has long recognized that the national defense trumps other considerations, no matter how significant. That is why the legendary Justice Oliver Wendell Holmes Jr. wrote for the Supreme Court, in 1909, that in matters concerning the life of the State, “Public danger warrants the substitution of executive process for judicial process.” The law, like common sense, says that if we can’t safeguard the nation, the right to seek relief in the nation’s courts is an illusion.
In 2005, the CIA’s operations directorate saw what happened with the Abu Ghraib photos. It saw how the mindless cruelty of a miscreant handful of soldiers was used by the jihadists and their supporters to libel the entire U.S. Defense Department — a libel from which the war effort in Iraq has never recovered. Unlike Abu Ghraib, the CIA’s interrogation program was a vital intelligence initiative — an unmatched asset according to George Tenet, the CIA director at the program’s inception (a Democrat holdover, initially installed by President Clinton, who clearly appreciated the qualitative difference between pre- and post-9/11 collection methods). Not only the interrogation program but the entire war effort — not just in Iraq but in the “good” War on Terror that everyone claims to support — would have been threatened by the leak of the interrogation tapes.
And the tapes would certainly have leaked. No one knows the CIA as well as the CIA’s operations directorate. They know anti-Bush, antiwar ideologues in their organization have strategically leaked national defense secrets for years. That, undoubtedly, is why these interrogation tapes were maintained outside the United States — they were safer there than at Langley.
But safer isn’t safe. The government had plenty of legal authority to deny disclosure of the tapes to courts and other investigations — just as it declined, for example, to make the high-level detainees themselves available for questioning by the 9/11 Commission and in the trial of 9/11 plotter Zacarias Moussaoui. But this government has shown itself impotent when it comes to leaks. It doesn’t do anything meaningful to investigate and punish them when they happen, so they keep happening. The only way of ensuring that the tapes were not lawlessly leaked was to destroy them. So that’s what the operations directorate did.
When an agency of government even contemplates doing such a thing, concerns about obstruction accusations are only natural. It should thus come as no surprise that lawyers in the Justice Department, the White House, and the CIA itself would counsel the operations directorate against spoliation. Same for members of Congress. Same even for CIA directors like Tenet and Porter Goss. None of them wanted the tapes to harm the war effort, and none of them wanted the tapes to be disclosed. But none of them wanted to be on the hook for a decision to destroy the tapes either — especially when there were other legal means to keep them under wraps.
The CIA operations officials, on the other hand, are the guys actually fighting the war. No one of them is going to come out and say, “Well, there are people in our own agency who are opposed to this war policy, whom we can’t trust to keep our secrets, and who would leak the existence of these tapes to the New York Times” — just like, in the same 2005, they leaked the NSA’s Terrorist Surveillance Program, and later leaked other top secrets, like overseas holding facilities and the program to track terrorist funds. Nevertheless, even if they can’t say it, it is the blunt, undeniable truth.
Better than anyone else, the CIA’s war fighters knew what to expect from its antiwar fighters. By 2005, the risks became intolerable. Here was the Abu Ghraib debacle. There was the hypocrisy of grandstanding lawmakers suddenly decrying the same interrogation methods over which they’d once swooned. The handwriting was on the wall: The tapes could be used to hang the war fighters out to dry in the mendacious “torture” circus. That hanging would be a propaganda coup for the enemy. So they destroyed the tapes.
And now, of course, the obstruction chorus is in crescendo: the 9/11 Commission, the Moussaoui trial, the Gitmo detainee cases, all supposedly tainted. In truth, the high likelihood is that justice in none of these proceedings has actually been obstructed. The 9/11 Commission investigation had nothing to do with interrogation tactics; the two jihadists in the tapes had nothing to add to the Moussaoui case; and the detainee litigation is about prisoners held by the military in Gitmo, not high-value detainees held by the CIA in secret locations. Yet, the destruction raises the specter of a government in the habit of making discomfiting evidence disappear. Such suspicions, however overblown, cast a pall on all the Justice Department’s antiterror efforts. And if government officials who knew about the existence of the tapes are shown to have lied to tribunals, that would be a grave matter. Thus, from a strict legal standpoint the destruction of the tapes is a galactic blunder — if we pretend, as we increasingly seem to do, that there isn’t a war going on.
But, you see, there is. And a war can’t be fought under the peacetime protocols of the civilian-justice system, where lawyers — just to be on the safe side — routinely tell clients not to purge any records that might conceivably be relevant to some pending or likely proceeding. If winning the war is more vital to the country than the outcome of any particular litigation or investigation — and that is what a real war-footing means — then tape recordings which would harm the war effort should certainly be destroyed if they merely depict forcible interrogation methods everyone already knows about. We don’t need pictures to debate tactics.
Committing the first grievous error, the decision to record the tapes, does not bind us to commit the next ruinous error: preserving them for propaganda use by the enemy. If it does, that’s not the rule of law; it’s suicide.
We ask our CIA operatives to protect us, and we tell them it’s now a war not an investigation. Congressional leaders admonish them to make certain they’re being tough enough on the enemy, and the Justice Department certifies their methods as within the bounds of the permissible. And now we’re going to stop the music, pull the chair out from under them, and tell them we’re in law-enforcement mode after all? That’s duplicity of a very high order.
Few in Congress and the commentariat complained when the mainstream media, reluctant to stoke public anger against Islamic radicals, made the video of the 9/11 attacks disappear. (When was the last time you saw it?) Why do so many insist on rousing anger against the people fighting to save our lives?
— Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.
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National Review Online - http://article.nationalreview.com/?q=NmQ5ZWVlNDUwMGU2NTNkYWVkNTk1MGUxNDIyYmQ5Yzg=
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Sent to me by a former Army man (Nuke, Bio, Chem stuff) who has followed this issue closely.
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I might add that this is the interrogator that the US selected to aid in finding Zarqawi in Iraq, so not just any run of the mill interrogator I would imagine.
X.
I'm Still Tortured by What I Saw in Iraq
By Matthew Alexander
Sunday, November 30, 2008; Page B01
I should have felt triumphant when I returned from Iraq in August 2006. Instead, I was worried and exhausted. My team of interrogators had successfully hunted down one of the most notorious mass murderers of our generation, Abu Musab al-Zarqawi, the leader of al-Qaeda in Iraq and the mastermind of the campaign of suicide bombings that had helped plunge Iraq into civil war. But instead of celebrating our success, my mind was consumed with the unfinished business of our mission: fixing the deeply flawed, ineffective and un-American way the U.S. military conducts interrogations in Iraq. I'm still alarmed about that today.
I'm not some ivory-tower type; I served for 14 years in the U.S. Air Force, began my career as a Special Operations pilot flying helicopters, saw combat in Bosnia and Kosovo, became an Air Force counterintelligence agent, then volunteered to go to Iraq to work as a senior interrogator. What I saw in Iraq still rattles me -- both because it betrays our traditions and because it just doesn't work.
Violence was at its peak during my five-month tour in Iraq. In February 2006, the month before I arrived, Zarqawi's forces (members of Iraq's Sunni minority) blew up the golden-domed Askariya mosque in Samarra, a shrine revered by Iraq's majority Shiites, and unleashed a wave of sectarian bloodshed. Reprisal killings became a daily occurrence, and suicide bombings were as common as car accidents. It felt as if the whole country was being blown to bits.
Amid the chaos, four other Air Force criminal investigators and I joined an elite team of interrogators attempting to locate Zarqawi. What I soon discovered about our methods astonished me. The Army was still conducting interrogations according to the Guantanamo Bay model: Interrogators were nominally using the methods outlined in the U.S. Army Field Manual, the interrogators' bible, but they were pushing in every way possible to bend the rules -- and often break them. I don't have to belabor the point; dozens of newspaper articles and books have been written about the misconduct that resulted. These interrogations were based on fear and control; they often resulted in torture and abuse.
I refused to participate in such practices, and a month later, I extended that prohibition to the team of interrogators I was assigned to lead. I taught the members of my unit a new methodology -- one based on building rapport with suspects, showing cultural understanding and using good old-fashioned brainpower to tease out information. I personally conducted more than 300 interrogations, and I supervised more than 1,000. The methods my team used are not classified (they're listed in the unclassified Field Manual), but the way we used them was, I like to think, unique. We got to know our enemies, we learned to negotiate with them, and we adapted criminal investigative techniques to our work (something that the Field Manual permits, under the concept of "ruses and trickery"). It worked. Our efforts started a chain of successes that ultimately led to Zarqawi.
Over the course of this renaissance in interrogation tactics, our attitudes changed. We no longer saw our prisoners as the stereotypical al-Qaeda evildoers we had been repeatedly briefed to expect; we saw them as Sunni Iraqis, often family men protecting themselves from Shiite militias and trying to ensure that their fellow Sunnis would still have some access to wealth and power in the new Iraq. Most surprisingly, they turned out to despise al-Qaeda in Iraq as much as they despised us, but Zarqawi and his thugs were willing to provide them with arms and money. I pointed this out to Gen. George Casey, the former top U.S. commander in Iraq, when he visited my prison in the summer of 2006. He did not respond.
Perhaps he should have. It turns out that my team was right to think that many disgruntled Sunnis could be peeled away from Zarqawi. A year later, Gen. David Petraeus helped boost the so-called Anbar Awakening, in which tens of thousands of Sunnis turned against al-Qaeda in Iraq and signed up with U.S. forces, cutting violence in the country dramatically.
Our new interrogation methods led to one of the war's biggest breakthroughs: We convinced one of Zarqawi's associates to give up the al-Qaeda in Iraq leader's location. On June 8, 2006, U.S. warplanes dropped two 500-pound bombs on a house where Zarqawi was meeting with other insurgent leaders.
But Zarqawi's death wasn't enough to convince the joint Special Operations task force for which I worked to change its attitude toward interrogations. The old methods continued. I came home from Iraq feeling as if my mission was far from accomplished. Soon after my return, the public learned that another part of our government, the CIA, had repeatedly used waterboarding to try to get information out of detainees.
I know the counter-argument well -- that we need the rough stuff for the truly hard cases, such as battle-hardened core leaders of al-Qaeda, not just run-of-the-mill Iraqi insurgents. But that's not always true: We turned several hard cases, including some foreign fighters, by using our new techniques. A few of them never abandoned the jihadist cause but still gave up critical information. One actually told me, "I thought you would torture me, and when you didn't, I decided that everything I was told about Americans was wrong. That's why I decided to cooperate."
Torture and abuse are against my moral fabric. The cliche still bears repeating: Such outrages are inconsistent with American principles. And then there's the pragmatic side: Torture and abuse cost American lives.
I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans.
After my return from Iraq, I began to write about my experiences because I felt obliged, as a military officer, not only to point out the broken wheel but to try to fix it. When I submitted the manuscript of my book about my Iraq experiences to the Defense Department for a standard review to ensure that it did not contain classified information, I got a nasty shock. Pentagon officials delayed the review past the first printing date and then redacted an extraordinary amount of unclassified material -- including passages copied verbatim from the Army's unclassified Field Manual on interrogations and material vibrantly displayed on the Army's own Web site. I sued, first to get the review completed and later to appeal the redactions. Apparently, some members of the military command are not only unconvinced by the arguments against torture; they don't even want the public to hear them.
My experiences have landed me in the middle of another war -- one even more important than the Iraq conflict. The war after the war is a fight about who we are as Americans. Murderers like Zarqawi can kill us, but they can't force us to change who we are. We can only do that to ourselves. One day, when my grandkids sit on my knee and ask me about the war, I'll say to them, "Which one?"
Americans, including officers like myself, must fight to protect our values not only from al-Qaeda but also from those within our own country who would erode them. Other interrogators are also speaking out, including some former members of the military, the FBI and the CIA who met last summer to condemn torture and have spoken before Congress -- at considerable personal risk.
We're told that our only options are to persist in carrying out torture or to face another terrorist attack. But there truly is a better way to carry out interrogations -- and a way to get out of this false choice between torture and terror.
I'm actually quite optimistic these days, in no small measure because President-elect Barack Obama has promised to outlaw the practice of torture throughout our government. But until we renounce the sorts of abuses that have stained our national honor, al-Qaeda will be winning. Zarqawi is dead, but he has still forced us to show the world that we do not adhere to the principles we say we cherish. We're better than that. We're smarter, too.
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It appears his population of suspects were local Iraqi "AQ franchise" recruits rather than hard core AQ operatives. I suspect this was the biggest reason for his success.
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Does he make any points worthy of your consideration?
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Not really. The propaganda use of "torture" by the US is a bogus point. Having tracked the arab/muslim media for years, everything is a source of outrage for them. They are quite happy to invent lurid conspiracies when they have nothing else to incite the masses with. The frequently told story by the arab media of US Army combat surgical hospitals hosting Israeli surgeons that harvest the eyes of Iraqi children for Israelis needing corneas, springs to mind.
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Published on Sunday, October 21, 2001 by the Washington Post
Silence of 4 Terror Probe Suspects Poses Dilemma
by Walter Pincus
FBI and Justice Department investigators are increasingly frustrated by the silence of jailed suspected associates of Osama bin Laden's al Qaeda network, and some are beginning to that say that traditional civil liberties may have to be cast aside if they are to extract information about the Sept. 11 attacks and terrorist plans.
More than 150 people rounded up by law enforcement officials in the aftermath of the attacks remain in custody, but attention has focused on four suspects held in New York who the FBI believes are withholding valuable information.
FBI agents have offered the suspects the prospect of lighter sentences, money, jobs, and a new identity and life in the United States for them and their family members, but they have not succeeded in getting information from them, according to law enforcement sources.
"We're into this thing for 35 days and nobody is talking," a senior FBI official said, adding that "frustration has begun to appear."
Said one experienced FBI agent involved in the investigation: "We are known for humanitarian treatment, so basically we are stuck. . . . Usually there is some incentive, some angle to play, what you can do for them. But it could get to that spot where we could go to pressure . . . where we won't have a choice, and we are probably getting there."
Among the alternative strategies under discussion are using drugs or pressure tactics, such as those employed occasionally by Israeli interrogators, to extract information. Another idea is extraditing the suspects to allied countries where security services sometimes employ threats to family members or resort to torture.
Under U.S. law, interrogators in criminal cases can lie to suspects, but information obtained by physical pressure, inhumane treatment or torture cannot be used in a trial. In addition, the government interrogators who used such tactics could be sued by the victim or charged with battery by the government.
The four key suspects, held in New York's Metropolitan Correctional Center, are Zacarias Moussaoui, a French Moroccan detained in August initially in Minnesota after he sought lessons on how to fly commercial jetliners but not how to take off or land them; Mohammed Jaweed Azmath and Ayub Ali Khan, Indians traveling with false passports who were detained the day after the World Trade Center and Pentagon attacks with box cutters, hair dye and $5,000 in cash; and Nabil Almarabh, a former Boston cabdriver with alleged links to al Qaeda.
Questioning of "the two with the box cutters and others have left us wondering what's the next phase," the FBI official said.
One former senior FBI official with a background in counterterrorism said recently, "You can't torture, you can't give drugs now, and there is logic, reason and humanity to back that." But, he added, "you could reach a point where they allow us to apply drugs to a guy. . . . But I don't think this country would ever permit torture, or beatings."
He said there was a difference in employing a "truth serum," such as sodium pentothal, "to try to get critical information when facing disaster, and beating a guy till he is senseless."
"If there is another major attack on U.S. soil, the American public could let it happen," he said. "Drugs might taint a prosecution, but it might be worth it."
Even some people who are firm supporters of civil liberties understand the pressures that are developing.
David Cole, a professor at Georgetown University Law Center who obtained the release of Middle Eastern clients after they had been detained for years based on secret information, said that in the current crisis, "the use of force to extract information could happen" in cases where investigators believe suspects have information on an upcoming attack.
"If there is a ticking bomb, it is not an easy issue, it's tough," he said.
Kenneth W. Starr, the independent counsel during the Clinton administration, wrote recently that the Supreme Court distinguished terrorism cases from cases where lesser threats are involved. He noted that five justices in a recent deportation case recognized that the "genuine danger" represented by terrorism requires "heightened deference to the judgments of the political branches with respect to matters of national security."
Former attorney general Richard L. Thornburgh said, "We put emphasis on due process and sometimes it strangles us."
In the aftermath of Sept. 11, he said, "legally admissible evidence in court may not be the be-all and end-all." The country may compare the current search for information to brutal tactics in wartime used to gather intelligence overseas and even by U.S. troops from prisoners during military actions.
Extradition of Moussaoui to France or Morocco is a possibility, one law enforcement official said. The French security services were quick to leak to journalists in Paris that they had warned the CIA and FBI in early September, before the attacks, that Moussaoui was associated with al Qaeda and had pilot training.
The leak has irritated U.S. investigators in part because "it was so limited," one FBI official said. "Maybe we should give him [Moussaoui] to them," he said, noting that French security has a reputation for rough interrogations.
The threat of extradition to a country with harsh practices does not always work.
In 1997, Hani Abdel Rahim al-Sayegh, a Saudi citizen arrested in Canada and transferred to the United States under the promise that he would tell about the bombing of the Khobar Towers military barracks in Saudi Arabia, refused to cooperate in the investigation when he got here.
The FBI threatened to have al-Sayegh sent back to Saudi Arabia, where he could have faced beheading, thinking it would get him to talk. "He called their bluff and went back, was not executed and is in jail," a government official said.
Robert M. Blitzer, former chief of the FBI counterterrorism section, said offers of reduced sentences worked to get testimony in the cases of Ahmed Ressam, caught bringing explosives into the country for millennium attacks that never took place, and Ali Mohammed, the former U.S. Army Green Beret who pleaded guilty in the 1998 embassy bombings and provided valuable information about al Qaeda.
The two former al Qaeda members who testified publicly in the 1998 bombing trials were resettled with their families in the United States under the witness protection program and given either money or loans to restart their lives.
Torture "goes against every grain in my body," Blitzer said. "Chances are you are going to get the wrong person and risk damage or killing them." In the end, he said, there has to be another way.
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**A good example of the crazy antisemitism that fills the islamic psyche.**
Special Dispatch - No. 494
April 11, 2003 No. 494
Author of Saudi Blood Libel and Professor at King Faysal University Lectures at Arab League Think Tank: 'U.S. War on Iraq Timed To Coincide With Jewish Holiday Purim'
On April 9, 2003, Dr. Umayma Jalahmabriefed the Arab League's "Center for Coordination and Follow-Up"and claimed that the U.S. war in Iraq was timed to coincide with the Jewish holiday Purim. Dr. Jalahma, a professor of Islamic Studies at Saudi Arabia's King Faysal University, made headlines last year when she claimed that Jews use human blood to make pastries for the Purim holiday. In an article published in the Saudi daily Al-Riyadh on March 12, 2002,Dr. Jalahma wrote about "the Jewish holiday of Purim… for this holiday, the Jewish people must obtain human blood so that their clerics can prepare the holiday pastries… that affords the Jewish vampires great delight as they carefully monitor every detail of the blood-shedding with pleasure... After this barbaric display, the Jews take the spilled blood, in the bottle set in the bottom [of the needle-studded barrel], and the Jewish cleric makes his coreligionists completely happy on their holiday when he serves them the pastries in which human blood is mixed."[1]
Following MEMRI's release of a translation of this article, Vice President Dick Cheney, National Security Advisor Condoleezza Rice, and White House Press Secretary Ari Fleischer, criticized the Saudi government and press. Subsequently, Dr. Jalahma was prevented from writing for Al-Riyadh, but began writing for Al-Watan, another Saudi daily.
The "Zayed Center for Coordination and Follow-Up" was established by the Arab League in 1999. Notable speakers at the Center include former vice president Al Gore, former secretary of state James Baker, Professor Shibley Telhami of the University of Maryland, former president of Austria and former UN secretary-general Kurt Waldheim, President of the Arab-American Institute James Zogby, former U.S. president Jimmy Carter, former assistant secretary of state for the Middle East Richard Murphy, President of the Middle East Institute Edward Walker, and Lyndon Larouche. Recent events at the Center include a lecture by French intellectual Theirry Meyssan, author of "The Appalling Fraud," in which he accused the U.S. military of involvement in the September 11 terrorist attacks; the Saudi Gazette quoted Meyssan as stating at the event, "...[Those] who masterminded the operations and led them were American terrorists."[2]
Former UN weapons inspector Scott Ritter also lectured at the Center and, according to the Zayed Center's summary of the event, which took place on February 8, 2003, Ritter "concluded his lecture, saying that what is happening now in the United Sates [i.e. the planning of the war in Iraq] is due to the fact that this country [the U.S.] is administered by extremists, after the elections of 2000, describing this as a kind of coup d'etat against the American values and principles."
The following is the summary provided by the Zayed Center of Dr. Jalahma'slecture:
'The American War on Iraq Started in March to Concur with Purim'
"[Dr. Jalahma] said that the American war on Iraq started in March to concur with Purim Feast, often celebrated in this month, which symbolizes the Jewish victory over Haman in Babylon [sic]."
'Imminent' Civil War in Israel
"[Dr. Jalahma] indicated that some Zionist parties which believe that the oriental Jews (Sephardim) must stay within the Palestinian borders because, [like] the Arabs, are inferior to the Western Jews (Ashkenazim), according to their claims. She expected an imminent civil war, now under the make, in the Israeli society due to denominational, sectarian, and ethnic splits."
'Zionist Ambitions to Establish a World State'
"[Dr. Jalahma] stated the invading forces have begun to distribute the spoils and booties in Iraq, disregarding the painful cries and woes of the Iraqi children. She considered the Israeli plan to rehabilitate the oil pipeline that once linked Haifa to Mosul, in the north of Iraq, as a sound evidence of the greedy ambitions of these countries (the Zionist Anglo-Saxon alliance) in Iraq and the other Arab countries. She also indicated that no one can curb the Zionist ambitions to establish a world state whose economic and political aspirations have no limits."
On the Zionist and American Media Campaigns vs. the Arab and Muslim World
"[Dr. Jalahma] added that Zionism and some Western circles have been active to defame the Arab and Muslim image, and to conceal truth and facts relating to the Arab and Muslim history. She called for condensed efforts to counter this campaign and to improve the Arab and Muslim image in the West."
On the 'Exploitation of the Jewish Woman… She is Still Denied Her Rights as a Human Being… She is Even Deprived of Her Children'"In another context, [Dr. Jalahma] said that the Jewish woman is politically and socially oppressed by the Jewish fundamentalists and secularists alike, mentioning that the Jewish woman lives in a miserable condition that requires the intervention of the international humanitarian organization to protect her.
The Jewish woman, she said, has been exploited and used for political purposes, and despite her noticeable contribution to the building of the Zionist society, she is still denied her rights as a human being. Injustice and oppression weigh heavily on her everywhere in society, particularly the Kibbutz, or the collective farms where she is even deprived of her children and extensively indoctrinated the Zionist principles."[3]
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[1]See MEMRI past dispatches on this subject:
Special Dispatch Series - No. 357- March 21, 2002 - Editor of Saudi Government Daily Al-Riyadh: Statement on 'Purim' Blood Libel Articles.
Special Dispatch Series - No. 354- March 13, 2002 - Saudi Government Daily: Jews Use Teenagers' Blood for 'Purim' Pastries.
Press Release - No. 1- March 18, 2002, - Press Release on Article in Saudi Government Daily: Jews Use Teenagers' Blood for 'Purim' Pastries.
[2] MEMRI Special Dispatch - No. 383- May 23, 2002 Arab League Think Tank Hosts Event: U.S. Military behind September 11.
[3]http://www.zccf.org.ae/e_TitleDescription.asp?Tid=477, April 9, 2003.
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A good article that has nothing to do with the subject matter of this thread :lol:
Returning to the subject matter of this thread, here's this extended interview with interrogator "Mattthew Alexander."
http://www.youtube.com/watch?v=Bg4iMWmkutM
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U.S. military tortured Guantanamo detainee, tribunal overseer says
It is the first time a senior Bush administration official with oversight of practices at the prison has publicly stated that an inmate was tortured.
By Bob Woodward
January 14, 2009
Reporting from Washington -- The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition."
"We tortured [Mohammed] Qahtani," said Susan J. Crawford in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.
Crawford, a retired judge who served as general counsel for the Army during the Reagan administration and as Pentagon inspector general when Dick Cheney was secretary of Defense, is the first senior Bush administration official responsible for reviewing practices at Guantanamo to publicly state that a detainee was tortured.
Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that . . . hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.
Military prosecutors said in November that they would seek to refile charges against Qahtani, 30, based on subsequent interrogations that did not employ harsh techniques. But Crawford, who dismissed war-crimes charges against him in May, said in the interview that she would not allow the prosecution to go forward.
Qahtani was denied entry into the United States a month before the Sept. 11 attacks and was allegedly planning to be the plot's 20th hijacker. He was later captured in Afghanistan and transported to Guantanamo in January 2002. His interrogation took place over 50 days from November 2002 to January 2003, though he was held in isolation until April 2003.
"For 160 days his only contact was with the interrogators," said Crawford, who personally reviewed Qahtani's interrogation records and other military documents. "Forty-eight of 54 consecutive days of 18- to 20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister."
The interrogation, portions of which have been previously described in news reports, was so intense that Qahtani had to be hospitalized twice at Guantanamo with bradycardia, a condition in which the heart rate falls below 60 beats a minute and which in extreme cases can lead to heart failure and death. At one point Qahtani's heart rate dropped to 35 beats per minute, the record shows.
The Qahtani case underscores the challenges facing the incoming Obama administration as it seeks to close the controversial detention facility at Guantanamo Bay, Cuba, including the dilemmas posed by individuals considered too dangerous to release but whose legal status is uncertain.
FBI "clean teams," which gather evidence without using information gained during controversial interrogations, have established that Qahtani intended to join the 2001 hijackers. Mohamed Atta, the plot's leader, who died steering American Airlines Flight 11 into the World Trade Center, went to the airport in Orlando, Fla., to meet Qahtani on Aug. 4, 2001, but the young Saudi was denied entry by a suspicious immigration inspector.
"There's no doubt in my mind he would've been on one of those planes had he gained access to the country in August 2001," Crawford said of Qahtani, who remains detained at Guantanamo. "He's a muscle hijacker. . . . He's a very dangerous man. What do you do with him now if you don't charge him and try him? I would be hesitant to say, 'Let him go.' "
That, she said, is a decision that President-elect Barack Obama will have to make. Obama repeated Sunday that he intends to close the Guantanamo facility but acknowledged the challenges involved.
"It is more difficult than I think a lot of people realize," Obama said on ABC's "This Week," "and we are going to get it done, but part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom may be very dangerous, who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted, even though it's true."
President Bush and Vice President Cheney have said that interrogations never involved torture.
Crawford, a lifelong Republican, ordered the war-crimes charges against Qahtani dropped in May. But she did not state publicly that the harsh interrogations were the reason.
"It did shock me," she said. "I was upset by it. I was embarrassed by it. If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it."
Crawford said Bush was right to create a system to try unlawful enemy combatants captured in the war on terrorism, but the implementation was fatally flawed. "I think someone should acknowledge that mistakes were made, and that they hurt the effort, and take responsibility for it," she said. "We learn as children it's easier to ask for forgiveness than it is for permission. I think the buck stops in the Oval Office."
Woodward writes for the Washington Post.
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Were it up to me things would have been worse, and when he had no more to give he'd be fed to pigs.
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On this one we disagree.
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I'm not interested in trading the lives of innocents in order to treat the savages with kid gloves.
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The counter argument by Matthew Alexander of course is that his approach works better AND it does not sap the American people's sense of who we are.
You may not agree, but IMHO the man certainly has a basis for his opinion.
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He has the right to his opinion. I see it as failing to recognize the dynamic of the threat and structuring a proper response to the threat. We can't teach the hajis to love us, we can teach them fear.
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**What could possibly go wrong?**
http://www.latimes.com/news/nationworld/nation/la-na-obama-guantanamo15-2009jan15,0,4433520.story?track=rss
Let some Guantanamo Bay detainees live in U.S., advocates say
For countries to feel comfortable taking prisoners off American hands, the U.S. has to show it is OK by taking some itself, human rights advocates say. The Obama team is considering the move.
By Julian E. Barnes and Peter Nicholas
January 15, 2009
Reporting from Washington -- Human rights advocates are urging the incoming Obama administration to allow some detainees from the prison at Guantanamo Bay, Cuba, to resettle as U.S. residents as part of any plan to close the controversial facility.
Taking such a step would go beyond plans outlined so far to close the prison and transfer detainees to other countries or to military prisons on the U.S. mainland. But allowing a small number -- perhaps only two or three -- to live freely in the U.S. could help persuade other countries to accept some of them as well.
"If we want European and other countries to feel comfortable taking at least some of the prisoners off American hands, the U.S. will have to show it is OK by taking some itself," said Tom Malinowski, the Washington advocacy director of Human Rights Watch.
President-elect Barack Obama's transition team is considering the option, but a Democratic official said there has been no conclusion that the resettlement option is necessary to Obama's plans.
Under the plans, Obama would issue an executive order within a week of assuming the presidency to close Guantanamo in a year, according to Democratic officials speaking on condition of anonymity because he has not yet taken office. That would give the government time to persuade other countries to take some of the detainees who no longer are considered to be a serious threat. It also would give the administration time to prepare prosecutions for other detainees in U.S. courts or in court-martial proceedings.
The incoming administration has decided to abandon the military commission system devised under President Bush, which has produced three convictions in seven years. Brooke Anderson, a transition spokeswoman, said Obama would decide how to handle detainees after his administration was in place.
"President-elect Obama has repeatedly said that he believes that the legal framework at Guantanamo has failed to successfully and swiftly prosecute terrorists, and he shares the broad bipartisan belief that Guantanamo should be closed," she said.
With time to send many of the prisoners to other countries, the plan could avert a mass transfer of the 250 detainees to a U.S. military facility, most likely at Ft. Leavenworth, Kan., or Charleston, S.C. It also could avoid the need for a new federal law that allows indefinite detention of prisoners without trial, something the incoming administration has ruled out for now.
Under the plans, only detainees who are to be prosecuted would be sent to U.S. prisons. As Justice Department lawyers prepare cases for trial, the State Department will work to transfer others to their home country or to other countries. Detainees cannot be returned to their home country if doing so would put them at risk of torture.
Many Guantanamo detainees have complained of torture during their captivity; Obama has said that tainted evidence cannot be used at trial.
On Wednesday, a federal judge in Washington ordered the release of a 21-year-old former Saudi resident who has been in custody since he was 14, saying evidence against him was unreliable. U.S. officials might appeal the ruling.
The transfer process has proved difficult for the Bush administration. Although the State Department may have better results under Obama, it still will face difficulty placing prisoners once described by the U.S. as terrorist threats.
Elisa Massimino, the executive director of Human Rights First, said resettling a few detainees in the U.S would be a wise move for Obama.
"After seven years of being fed the line that everyone there is the worst of the worst, it would help enormously if the United States would set an example that would put the lie to that, by taking one or two of the people," she said.
Allowing former detainees to live freely in the U.S. probably would be controversial. But Massimino said public concern might ease if the Obama administration were to explain the background of those allowed into the U.S.
"There will be opposition, but the facts can overcome that," Massimino said.
julian.barnes@latimes.com
peter.nicholas@latimes.com
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Oy f'g vey :roll:
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Ever since the Bush Administration's warrantless wiretapping program was exposed in 2005, critics have denounced it as illegal and unconstitutional. Those allegations rested solely on the fact that the Administration did not first get permission from the special court created by the 1978 Foreign Intelligence Surveillance Act. Well, as it happens, the same FISA court would beg to differ.
In a major August 2008 decision released yesterday in redacted form, the Foreign Intelligence Surveillance Court of Review, the FISA appellate panel, affirmed the government's Constitutional authority to collect national-security intelligence without judicial approval. The case was not made public before yesterday, and its details remain classified. An unnamed telecom company refused to comply with the National Security Agency's monitoring requests and claimed the program violated the Fourth Amendment's restrictions on search and seizure.
But the Constitution bans only "unreasonable" search and seizure, not all searches and seizures, and the Fourth Amendment allows for exceptions such as those under a President's Article II war powers. The courts have been explicit on this point. In 1980, the Fourth Circuit Court of Appeals held in Truong that "the Executive need not always obtain a warrant for foreign intelligence surveillance." The FISA appeals court said in its 2002 opinion In re Sealed Case that the President has "inherent authority to conduct warrantless searches to obtain foreign intelligence information" and took "for granted" that "FISA could not encroach on the President's constitutional power."
FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed. Though the decision applies only to the stopgap FISA measure in place between 2007 and 2008, it sets a precedent.
For all the political hysteria and media dishonesty about George W. Bush "spying on Americans," this fight was never about anything other than staging an ideological raid on the President's war powers. Barack Obama ought to be thankful that the FISA court has knocked the bottom out of this gambit, just in time for him to take office.
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http://hotair.com/archives/2009/01/16/shhh-obama-may-create-classified-loophole-for-enhanced-interrogations/
Shhh: Obama may create “classified loophole” for enhanced interrogations
posted at 4:12 pm on January 16, 2009 by Allahpundit
The news here is that this isn’t news. Less than a week after the election, rumors were already swirling that he was going to retain the option “in certain cases” to use procedures not authorized by the Army Field Manual. Then the left got him to back down on appointing John Brennan, who’d defended some of Bush’s interrogation policies, as director of the CIA. I thought that signaled the end of heart-ache for Andrew Sullivan, but no: Not only might Brennan end up being placed in a supervisory role, evidently The One’s still flirting with a little presidential prerogative when it comes to especially “difficult” subjects.
For Obama, who repeatedly insisted during the 2008 presidential campaign and the transition period that “America doesn’t torture,” a classified loophole would allow him to back up his vow to end harsh interrogations while retaining a full range of presidential options in conducting the war against terrorism.
The proposed loophole, which could come in the form of a classified annex to the manual, would satisfy intelligence experts who fear that an outright ban of so-called enhanced interrogation techniques would limit the government in obtaining threat information that could save American lives. It would also preserve Obama’s flexibility to authorize any interrogation tactics he might deem necessary for national security.
However, such a move would frustrate Senate Democrats and human rights, retired military and religious groups that have pressed for a government-wide prohibition on methods they describe as torture…
“That would not be good,” said the Rev. Richard Killmer, executive director of the National Religious Campaign Against Torture. “We don’t need to be able to torture and we don’t need to engage in any interrogation techniques that are not humane. And unless we have absolute clarity that these interrogation techniques will not be used, they are not going to be able to say that.”
Indeed. How is Obama upholding his vow to end harsh interrogations if he’s not ending harsh interrogations? All he’s doing is scaling it down from the level of official policy to an ad hoc contingency, which makes it even more arbitrary and potentially abused. Exit question: The left won’t cut him a break on this the way they will on, say, TARP; absolutist opposition to harsh interrogation in whatever form, from barking dogs on up, is now as central to “progressive” identity as support for abortion is. How can he make them happy while still preserving the option he needs for emergencies? He’s not going to risk his reelection on being caught short-handed in a ticking-bomb scenario.
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Actually this is a real opportunity for a teaching moment.
If our liberal and Democratic friends start from the proposition that BO is an honorable man, then what lesson are they to draw from the fact that BO has spoken respectfully about VP Cheney's advice in this regard? What lesson are they to draw from this decision of his?
I might also note that it reflects favorably on His Glibness that he could man up and speak well of Cheney on precisely this point and take the action that he is.
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Campaign promises are so much easier to adhere to when they're strictly hypothetical, as Barack Obama is discovering. The then-President-elect said 10 days ago on ABC that while he still plans to close Guantanamo, "it is more difficult than I think a lot of people realize" and that "many" of the enemy combatants are "very dangerous."
APMerely for gesturing at this reality, Mr. Obama suffered the blunt-force trauma of his left-wing allies, and the panicked transition leaked new details on the Administration's intentions last week. On Tuesday the Pentagon halted military commissions at Guantanamo for 120 days, and reports as we went to press yesterday said Mr. Obama would sign an executive order today that the base be closed within a year. This was after he told the Washington Post that closure might take even longer. Isn't responsibility fun?
The first practical question is where to transfer Khalid Sheikh Mohammed and the 245 or so other remaining Gitmo prisoners. Dangerous enemy combatants can't simply be released into the streets. The Obama camp says that after reviewing the classified files, it will try to repatriate as many as safely possible. But 60 already cleared for release remain because they may be persecuted by their home countries. And even Mr. Obama's vaunted diplomacy is unlikely to convince rights-protecting countries to resettle people he believes are too dangerous to release in the U.S. -- and the more willing Mr. Obama is to release prisoners, the more difficult this problem will become.
One suggestion is moving the remaining prisoners to Kansas's Fort Leavenworth, but state politicians are already sounding a red alert. The military base is integrated into the community and, lacking Guantanamo's isolation and defense capacities, would instantly become a potential terror target. Expect similar protests from other states that are involuntarily entered in this sweepstakes.
In any event, this option merely relocates Guantanamo to American soil under another name. The core challenge is not a matter of geography but ensuring a stable legal framework for detaining and punishing fighters engaged in unconventional warfare against the U.S.
In the Military Commissions Act of 2006, the Bush Administration and Congress painstakingly set thresholds for who can be detained and under what rules. Mr. Obama argues that work was flawed and that the trials should not continue in their present form. But he also said in his ABC sitdown that he wants to create "a process that adheres to rule of law, habeas corpus, basic principles of Anglo-American legal system, but doing it in a way that doesn't result in releasing people who are intent on blowing us up."
Sounds great. But this "balance" is difficult to strike because many of the Guantanamo prisoners haven't committed crimes per se but are dedicated American enemies and too dangerous to let go. Other cases involve evidence that is insufficient for trial but still sufficient to determine that release is an unacceptable security risk.
The stock anti-antiterror position is that detainees should be charged with crimes, either through military courts-martial or (preferably) the ordinary criminal justice system. Anyone who can't be indicted should be set free. But such trials are unworkable even for the 70 or 80 detainees that prosecutors had planned to try with military commissions, let alone prisoners who are too dangerous to release but for which there isn't sufficient evidence for a tribunal, much less civilian courts. Critics like to point to aggressive interrogations as somehow tainting these cases, but the real problems are far more prosaic. For instance, any evidence probably can't be admitted in civilian courts because terrorists aren't read their Miranda rights when picked up in combat zones.
An alternative to military commissions that is gaining political traction is the idea of a national security court, composed of Article III judges to supervise detentions and administer trials. There are real risks here. Politically, it will cost time and capital that Mr. Obama probably prefers to spend elsewhere. Practically, any new system is likely to face the same legal challenges from the white-shoe lawyers at Shearman and Sterling and anti-antiterror activists that for years tied down military commissions.
But legal experts across the political spectrum including Harvard's Jack Goldsmith, the Brookings Institution's Ben Wittes and Georgetown's Neal Katyal advance this option as a way to restore "credibility" to the detainee process. The national security court would operate under rules of evidence and classification that would allow the military to avoid compromising intelligence sources and methods, as well as admit intelligence gathered under battlefield conditions.
Then again, such rules would be almost identical to those now used in . . . George Bush's military commissions. On wiretaps, interrogations and now Gitmo, the new Administration is discovering that the left-wing attack lines against Bush policies are mostly simplistic illusions. Now those critics are Mr. Obama's problem
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http://hotair.com/archives/2009/01/23/freed-gitmo-terrorist-now-network-leader/
Freed Gitmo terrorist now network leader
posted at 9:05 am on January 23, 2009 by Ed Morrissey
Yesterday, Barack Obama signed an order pledging to close the detention center at Guantanamo Bay within in a year, but without offering a solution for the current detainees. That little detail takes on a little more significance after today’s report in the New York Times about the career of a released Gitmo inmate. After getting sprung from Gitmo, Said al-Shihri became a leader of the al-Qaeda network in Yemen:
The emergence of a former Guantánamo Bay detainee as the deputy leader of Al Qaeda’s Yemeni branch has underscored the potential complications in carrying out the executive order President Obama signed Thursday that the detention center be shut down within a year.
The militant, Said Ali al-Shihri, is suspected of involvement in a deadly bombing of the United States Embassy in Yemen’s capital, Sana, in September. He was released to Saudi Arabia in 2007 and passed through a Saudi rehabilitation program for former jihadists before resurfacing with Al Qaeda in Yemen.
His status was announced in an Internet statement by the militant group and was confirmed by an American counterterrorism official.
“They’re one and the same guy,” said the official, who insisted on anonymity because he was discussing an intelligence analysis. “He returned to Saudi Arabia in 2007, but his movements to Yemen remain unclear.”
The war on terror is no game. These people intend to kill us in large numbers, and unless we take that seriously, they will succeed. It’s not the same as using the exclusionary rule to return a burglar to the streets rather than offend tender sensibilities because someone filled out a warrant incorrectly. Al-Qaeda is not the Gambino crime family, and a law-enforcement approach will not defeat them — as the entire decade of the 1990s proved.
How did Shirhi get released? He told the Gitmo tribunals that he only traveled to Iran and Afghanistan to get carpets for his family’s store. The Pentagon’s dossier on Abu Sayyaf showed that he trained at a terrorist camp outside of Kabul, went to Iran to bring extremists into Afghanistan, and wanted to assassinate a writer on which a mullah had placed a fatwa for his writings. Shihri was fortunate that his review came at a time when the Bush administration was getting enormous pressure to reduce the number of inmates at Gitmo, and Shihri went into the Saudi rehab program. A year later, Shihri disappeared — and now he’s running the AQ network in Yemen.
Half of the remaining detainees come from Yemen, and would have to be returned to Yemen. The Yemenis have allowed terrorist suspects to break out of prison or have set them free on their own recognizance repeatedly. The Yemen branch of AQ has grown, and the addition of more than a hundred Gitmo detainees will only assist in that process.
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A comprehensive, well annotated treatment of issues associated with the detainment of non-state combatants.
January 23, 2009
Holding Terrorists Accountable: A Lawful Detainment Framework for the Long War
by Charles Stimson
Legal Memorandum #35
During the recent presidential campaign, then-Senator Barack Obama promised to close the Guan tanamo Bay detention center and stated that some Guantanamo detainees should be prosecuted or transferred to other countries and that others should be detained "in a manner consistent with the laws of war."[1] President Obama already, on his second full day in office, has taken the first steps in that direc tion by issuing an executive order calling for the clo sure of Guantanamo "as soon as practicable" and the prosecution, release, transfer, or continued detention of all detainees housed there following review of their statuses.[2]
This action is bold, comprehensive, yet cautious. In some respects, it represents a continuation, and at most an acceleration, of many of the policies of the Bush Administration. Prior to January 20, some detainees were being prosecuted,[3] and others were transferred to other countries: In fact, that latter group comprises nearly two-thirds of all those who have been held at Guantanamo.[4]
More important is what has not yet been addressed. While the Obama executive orders allude to continued detention of some Guantanamo detain ees, they address only the current detainees at Guan tanamo. President Obama's bigger decision--one where he is more likely to modify previous practice-- concerns future detainees, not the fate of those already captured and held at Guantanamo Bay.
The Obama Administration will not be ending the practice of military detention. Military detention[5] of some detainees is appropriate, consistent with long historical practice, and a necessary and lawful tool in the current conflict.[6] True, as General David Petraeus and Secretary of Defense Robert Gates have essentially said, we cannot kill or capture our way to victory in this conflict.[7] Yet military deten tion, properly calibrated and designed to comple ment our broader national security and counterterrorism policy, is necessary, not only for some detainees currently detained at Guantanamo but also for future captures of high-value detainees.
Indeed, candidate Obama also pledged to con tinue to build U.S. capacity and international part nerships to track down, capture, or kill terrorists around the world, and this presumably entails holding additional detainees.[8] That promise should assure the American people that President Obama intends to protect us from those terrorists who seek to kill us. But it also begs several key questions:
When the U.S. captures a high-value terrorist and, for whatever reason, cannot prosecute him, where will he be detained?
Under what legal framework will he be detained?
How will all this work given the shifting legal landscape since 9/11?
Answering those questions and crafting an acceptable legal framework that ensures the contin ued safety of the American people is the difficult but necessary work ahead, and it is the substance of what the Obama Administration will have to confront as it forges a new durable policy and legal framework on detainees in the war on terrorism.
Defining the Issue
Winding down the detention operation at Guan tanamo Bay in a responsible manner will be diffi cult, will take more than just a couple of months, and requires making difficult decisions and trade-offs.[9] Indeed, President-elect Obama acknowl edged that ending the detention mission at Guan tanamo Bay will be difficult and, more significantly, that he would consider it a failure if he did not close Guantanamo by the end of his first term.[10] It is a challenge because the process actually has less to do with Guantanamo Bay detainees than with the question of how we wage war in the modern era against non-state actors who are actively waging war against us.
Guantanamo Bay is just a place--a place that admittedly has harmed our country's reputation and whose benefits arguably have come to be out weighed by its costs. To be sure, the United States has gained valuable intelligence from some detain ees at Guantanamo over the years and has kept those very same detainees from killing or injuring our soldiers or allies in our ongoing conflict. That intelligence has helped us to understand and fight this enemy more effectively, but its value has diminished over time. More important, that intelli gence and security has strained diplomatic rela tions, undermined the moral authority of the United States in the eyes of some, and raised dis tracting domestic legal obstacles.
Simply ending the detention operations at Guan tanamo addresses only one visible aspect of a broader post-9/11 detention legal framework for the incapacitation and lawful interrogation of ter rorists. Closing Guantanamo or merely moving the detainees to the United States without addressing the serious underlying challenges and questions regarding detention policy in this ongoing conflict is essentially changing the ZIP code without confronting the broader challenges.
The new Administration has the opportunity, and an obligation, to build on the strategic ratio nale, legal and policy underpinnings, and entire framework regarding how to hold accountable and incapacitate terrorists.[11]
It is important to recall that a key recommenda tion from the 9/11 Commission Report was for the United States to engage our allies and develop a common approach to the detention and humane treatment of captured terrorists, drawing from Common Article 3 of the Geneva Conventions.[12] Much work has been done with respect to this key recommendation;[13] some remains.
Military detention of the enemy during armed conflict is authorized and legal. According to a legal adviser for the International Committee of the Red Cross (ICRC), such detention is an "exceptional measure of control that may be ordered for security reasons in armed conflict or for the purpose of protecting State security or public order in non-conflict situations, provided the requisite criteria have been met."[14] According to the author, "the exceptional nature of intern ment lies in the fact that it allows the detaining authority to deprive liberty of persons who are not subject to criminal processes but nevertheless represent a real threat to security in the present or in the future."[15]
It is also just common sense. When our military enters armed conflict, however that is defined, it has the legal authority to use lethal force when nec essary. It stands to reason that the military must also be able to detain the enemy in a lawful man ner, all the while upholding the rule of law, protect ing human rights, and adhering to applicable provisions of the Geneva Conventions.[16]
Military detention is not a right-wing proposi tion; it is a time-honored, legal, proper national security tool during armed conflict. That fact is recognized across the political spectrum. On Janu ary 6, 2009, Senator Dianne Feinstein (D-CA), along with Senators John D. Rockefeller IV (D-WV), Ron Wyden (D-OR), and Sheldon Whitehouse (D-RI), introduced Senate Bill 147, the Lawful Interrogation and Detention Act. The act, directed specifically at the detainees currently at Guantan amo Bay, Cuba, specifically authorizes military detention for some detainees who cannot be pros ecuted or transferred.[17]
Thus, despite what some have argued over the years, the United States is not required, by its inter national obligations or otherwise, to "try them or set them free." This false choice is dangerous, and it comes with real consequences. It is widely known that some detainees released from detention in Iraq, Afghanistan, and Guantanamo have taken up arms against Americans and our allies and no doubt have committed further combatant activ ity.[18] This risk of further combatant activity will always exist, and it is particularly acute in the cur rent conflict.
Reducing that risk through lawful detainment is not always a controversial proposition. For years, the United States has captured, detained, and law fully interrogated thousands of combatants within the political boundaries of Iraq and Afghanistan, and it will continue to do so for some time in Afghanistan.[19] Most detainees are detained to pre vent further combatant activity against the U.S. or our forces--not tried in a criminal trial.
Beyond Guantanamo
With respect to terrorists captured in the future outside of Afghanistan, including by our allies or in a future conflict or other crisis, the detainment sit uation is more complicated. Neither the criminal law nor the law of armed conflict provides compre hensive and complete policy prescriptions in terms of how best to keep these combatants off of the bat tlefield and lawfully interrogate them while upholding the rule of law, protecting human rights, and safeguarding our country.
Prior to September 11, 2001, terrorism was treated as a matter of criminal law. The limits of and flaws in that approach have been detailed in numerous articles.[20] It is true that our anti-terrorism statutes have improved over the years and that our track record of trying terrorism in the courts is impres sive, but despite the system's strength and flexibil ity, these improvements will carry us only so far.[21]
A recent report by Human Rights First, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, details over 100 terrorism cases successfully prosecuted in federal court since 9/11. The report covers many, but not all, of the important laws and legal and policy considerations regarding trying terrorism cases in federal district court. Yet it does not mention one case of a terrorist captured over seas on the battlefield after 9/11 and tried in the U.S. courts, nor does it seriously address the issue of the use of hearsay in federal trials for battlefield captures.
Most important, the Human Rights First report downplays the risks associated with the inadvertent disclosure of classified evidence, including valuable (and expensive) sources and methods of intelli gence gathering. In every case involving such evi dence--and this would include some cases involving terrorists captured overseas--there must be a careful, sophisticated cost-benefit analysis conducted by the highest officials in the govern ment before deciding to disclose certain evidence in courtroom proceedings. Trying some terrorists in federal court should be an option, and it is an option the Bush Administration should have used more often;[22] but it should not be the exclusive weapon in our arsenal for combating al-Qaeda and other unprivileged belligerents.
To its credit, the Human Rights First report does acknowledge that some detainees may properly be held under "the law of war for the duration of active hostilities to prevent them from returning to the field of battle, and without any effort by the government to file charges or impose punish ment."[23] In other words, military detention has a place in this conflict.[24]
For the most part, the Bush Administration and Congress, in its Authorization for the Use of Mili tary Force, recognized the terrorist attacks of 9/11 as an act of war, and the law of armed conflict was the foundation for the legal framework surround ing detention. With respect to Guantanamo, the law-of-armed-conflict paradigm was challenged within weeks of detainees arriving in January 2002, and its limitations have become clearer during this long conflict.
Certainly, the law of armed conflict should and will provide the underpinnings for the detention framework in Afghanistan in the years to come, but it does not provide adequate answers to or proce dural protections for detainees captured outside of Afghanistan and all of the issues that arise in a con flict of this nature.[25]
A legal regime can only set the boundaries of permissible policy; it is not a substitute for policy decisions to resolve lingering questions. In the future, when we capture a high-value al-Qaeda operative somewhere outside of Afghanistan who plots acts of terrorism or trains fellow terrorists but has not committed a domestic crime that can be prosecuted in federal district court, a court-martial, or even a new national security court, do we release him? If not, should we detain him, and under what legal framework? Where will he be detained? It is highly unlikely that the government of Afghanistan (or any other country) will allow him to be detained inside their country. Should we bring him to the United States? If so, what is his legal status, and what framework is he held under?
Further, in many of these cases, we will want to lawfully interrogate a captured operative to gain tactical or strategic intelligence. How do those law ful interrogations for intelligence reasons affect the potential for criminal prosecution? We may not be able to prosecute some of these individuals, and it may not be in our best interest as a country to try them because to do so might unreasonably risk exposing critical national security secrets.
A Future Framework
The answer, far beyond closing Guantanamo, is to solve the broader challenge of holding account able and incapacitating terrorists in a detention framework that is lawful, durable, and internation ally acceptable. As we capture future high-value terrorists outside of Afghanistan and conclude that some may not be prosecuted in our domestic courts, we will need a sustainable legal framework to detain them.[26]
Creating the right framework will be challeng ing, but it is necessary. As a former Administration official in charge of detainee matters observed, detention carries risks to both liberty and secu rity.[27] Much thought needs to be given to the char acteristics of persons subject to detention.[28] Conceptual criteria such as (among others) danger ousness, active or direct participation, membership in or support for an organization such as al-Qaeda, past acts, and future intentions must all be consid ered and weighed before drafting an appropriate definition of who may be detained.[29] However, we must remain ever mindful that our service mem bers are facing the enemy on numerous battlefields every day: These questions are not, and should not be treated as, merely academic.
As for procedural protections for future captures, under the law of armed conflict, if there is a ques tion as to a detainee's legal status (e.g., a prisoner of war, a civilian, or some other class), the detaining authority must hold a hearing, similar to an Article 5 hearing provided to prisoners of war under the Geneva Conventions, at or near the time of capture. If the "Article 5" hearing officer finds the terrorist detainable, then he may be detained. Alternatively, the hearing officer could make a finding that the captured person does not meet the proper criteria and order him released after the hearing.
If the person is deemed detainable by the hear ing officer, after a defined period of lawful interro gation, the detainee should be given an Article 5- style "competent tribunal" hearing before a military judge where he should have assistance of military counsel.[30] If the military judge, after a full and fair hearing, decides that the detainee qualifies for fur ther military detention, the detainee is thereafter detained pending periodic review.
There should be robust judicial appellate review, and the detainee should be afforded qualified free appellate counsel. The basis for his detention should be reviewed periodically.
Furthermore, military detention should be used only for those detainees who cannot be safely pros ecuted.[31] This means, at the front end of the deten tion matrix, that there must be a robust system in place to determine which cases are prosecutable and which ones are not.
As a legal matter, there is support for the argu ment that the current Authorization for Use of Mil itary Force (AUMF) authorizes the President to detain militarily a person captured in the United States.[32] However, as a policy matter, the proposed military detention framework should not apply to anyone captured in the United States, at least under current circumstances.[33]
Not even the Geneva Conventions or the princi ples underlying them answer every question. Once you give future captures an "Article 5" hearing and a "competent tribunal" determines that the detainee may be detained, then what? Does the case get transferred automatically to a federal dis trict court judge for "independent review," perhaps under a newly created national security court? And how long do you detain the individual? How often do you review the basis of his detention? According to the Geneva Conventions, a person subject to detention must have the basis for his detention reviewed periodically, but is that an appropriate standard in this case? I believe it is warranted.
Would this system even be workable if, for example, the United States captured hundreds of detainees at a time? And what impact will these robust new rules and procedures have in the next war against a state actor who will receive fewer safeguards or rights as a prisoner of war?
All of this must be done as transparently as possible.
Finally, the United States must continue to allow the International Committee of the Red Cross[34] to perform its valuable function vis-à-vis detainees, and we must continue to work with and engage the ICRC in a substantive, confidential diplomatic dialogue.
Conclusion
Shuttering detention operations at Guantanamo Bay will be only a symbolic gesture--or perhaps not even that--if the Obama Administration does not also address the broader challenge of lawfully incapacitating terrorists who are intent on waging war against us. The incoming Administration has the duty to think through the strategic rationale of military detention in the broader context of its counterterrorism policies.
Some detainees may be appropriate candidates for criminal prosecution in federal district court, in terrorists' court-martials, or even in a newly created national security court--as long as there is not an unreasonable risk of exposure of critical national security information. Other detainees at Guantan amo Bay and those captured in the future will be appropriate candidates for military detention.
Achieving this new policy will take time. It will require the new Administration to use this "strate gic pause" in military commissions, habeas corpus cases, and other ongoing matters to take stock of the best way forward.
We will see how Barack Obama responds to calls from some of his supporters to "try them or set them free." Will he make the case for a thoughtful military detainment policy, or will he give in to their dangerous demand? If Obama acknowledges that al-Qaeda members and others similarly situ ated are not common criminals and that military detention is a lawful and necessary tool in this ongoing conflict, we will know that our new Presi dent is serious about the threats aligned against us.
Charles D. "Cully" Stimson is Senior Legal Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation. He also has served as Deputy Assistant Secretary of Defense for Detainee Affairs (2006-2007) and is a Commander in the United States Navy JAG Corps, reserve component.
http://www.heritage.org/Research/NationalSecurity/lm35.cfm
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http://news.yahoo.com/s/afp/20090123/pl_afp/usattacksjusticepoliticsobamasign/print;_ylt=AuIoQulg7kEXYlvMD2S9_FCtOrgF
Obama 'declared end' to war on terror: media
Fri Jan 23, 6:58 am ET
WASHINGTON (AFP) – President Barack Obama "declared an end" to his predecessor's "war on terror" and began to heal the US reputation abroad when he ordered the Guantanamo Bay prison to close, US editorialists wrote Friday.
Obama's order to close the detention facility within a year, end coercive interrogations and shut secret overseas CIA prisons sent a strong signal to the world and presented a new post-September 11 era, wrote The Washington Post.
"President Obama yesterday eliminated the most controversial tools employed by his predecessor against terrorism suspects," the Post said.
"With the stroke of his pen, he effectively declared an end to the 'war on terror,' as President George W. Bush had defined it, signaling to the world that the reach of the US government in battling its enemies will not be limitless," it said.
"In a broad swipe at the Bush administration's lawyers, Obama nullified every legal order and opinion on interrogations issued by any lawyer in the executive branch after September 11, 2001," the Post added.
"It was a swift and sudden end to an era that was slowly drawing to a close anyway, as public sentiment grew against perceived abuses of government power."
The Los Angeles Times pointed out the ambiguities that remain: it was still not clear what would be done about the 245 prisoners languishing in the jail, nor how their court cases would be resolved.
But the paper hailed Obama for having reversed Bush policies.
"President Obama has begun the rehabilitation of this country's reputation when it comes to the treatment of suspected terrorists," the Times wrote.
"Obama deserves credit for ending the worst of the Bush administration's excesses in the 'war on terror' ... But the orders contain ambiguities that demonstrate how hard it will be to unwind the tangle that President Bush created."
The Chicago Tribune mulled the possibility of holding the remaining Guantanamo terror suspects "as prisoners of war for the duration of the conflict or until they no longer pose a threat."
The fight against violent extremism remains fraught with difficulty, it noted.
"Assuring fairness and civilized conditions for the accused, while protecting the nation from bloodthirsty enemies, is harder in this war than in most," the Tribune wrote.
"But the new administration can do better than the last one did."
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http://michellemalkin.com/2009/01/23/pay-attention-to-eric-holders-law-firm-and-gitmo-detainees/
Pay attention to Eric Holder’s law firm and Gitmo detainees
By Michelle Malkin • January 23, 2009 02:41 PM
A good friend writes:
[A]s nearly 100 of the remaining detainees are Yemenis, reflecting that country’s refusal to assure security for repatriated Yemenis, note that AG nominee Eric Holder is a senior partner with Covington & Burling, a prestigious Washington, D.C. law firm, which represents 17 Yemenis currently held at Gitmo. From the C & B website:
The firm represents 17 Yemeni nationals and one Pakistani citizen held at Guantánamo Bay. The Supreme Court will soon review the D.C. Circuit’s ruling that ordered the dismissal of a number of habeas petitions filed by Guantánamo detainees; some of our clients are petitioners in the Supreme Court case. We expect to play a substantial role in the briefing. We also plan to petition the Supreme Court to hear our Pakistani client’s appeal from the D.C. Circuit’s order dismissing his case. Further, we are pursuing relief in the D.C. Circuit under the Detainee Treatment Act of 2005 for all of our clients. On a separate front, we filed amicus briefs and coordinated the amicus effort in Hamdan v. Rumsfeld in which the Supreme Court in the summer of 2006 invalidated President Bush’s military commissions and in which we have obtained favorable rulings that our clients have rights under the Fifth Amendment and the Geneva Conventions.
Covington & Burling’s Gitmo bar roster has included some of the most radical detainee advocates; see David Remes, who peeled down to his underwear at a press conference in Yemen to draw attention to his clients’ plight and Marc Falkoff, who published a book of detainee poetry and who, in the book’s intro, compared their heroic struggle to the Jews held in concentration camps and Japanese Americans held in internment camps during WWII. [One of Falkoff's "gentle, thoughtful" young poets--a Kuwaiti "cleared for release" and repatriated in 2005--blew himself up in a truck bomb in Mosul last March, killing 13 Iraqi army soldiers and wounding 42 others.]
The fact that Mr. Holder, while Deputy Attorney General, pushed for the release of 16 violent FALN terrorists against the advice of the FBI, the US Attorneys who prosecuted them and the NYPD officers who were maimed by them, suggests that he was perfectly willing to put politics before the national security interests of the country. He is not suited for the job of attorney general, which is central to the issues surrounding the disposition of war on terror detainees.
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By DAVID B. RIVKIN JR. and LEE A. CASEY
This week, President Barack Obama signed an executive order to close the terrorist detention facilities at Guantanamo Bay within the year. It was a symbolic repudiation of the Bush administration's policies, but Gitmo is not the crucial issue. The real question is whether Mr. Obama will uphold the legal architecture necessary to continue the war against al Qaeda and its jihadist allies.
What Mr. Obama's national security team will quickly discover is that the civilian criminal-justice system is an inadequate tool to deal with terrorists. President Bush's policies -- particularly treating captured terrorists as unlawful enemy combatants and employing a military court system to try them -- were dictated by the very real need to defend American citizens, not by disdain for the rule of law.
The Bush administration chose the law-of-war paradigm because the international law of armed conflict gives the U.S. maximum flexibility to meet the jihadist threat, including the right to attack and destroy al Qaeda bases and fighters in foreign countries. The alternative legal framework, the civilian criminal-justice system, is unsuitable for several key reasons. Civilian criminal suspects quite obviously cannot be targeted for military attack. They can be subjected only to the minimum force necessary to effect an arrest. They cannot -- consistent with international law -- be pursued across national boundaries. And finally, they are entitled to a speedy trial in a public courtroom. These rules cannot be ignored or altered without constitutional amendment.
In addition, the type and quality of evidence necessary for convictions in civilian courts is simply unavailable for most captured terrorists. One federal district judge recently concluded that although the government's information on one detainee was sufficient for intelligence purposes -- that is, he presumably could have been targeted for deadly attack -- it was insufficient to hold him without trial.
Trying senior al Qaeda leaders for relatively minor offenses ancillary to their major war crimes (like Al Capone for tax evasion) also is not the answer. Even if convictions and punishments could be obtained in this way, the cause of justice and historic closure requires the perpetrators to be charged with their worst offenses. This view informed the Nuremberg prosecutions.
Many have advocated for the creation of a U.S.-based national security court. Such a court would certainly be subject to constitutional challenge, and likely could not handle the sheer number of detained enemy combatants. A few hundred detainees at Guantanamo is one thing, but U.S. forces have captured and processed thousands of prisoners in the war on terror, and still hold upward of a thousand al Qaeda fighters in Iraq and Afghanistan, with many more to come in the years ahead.
Some changes to the Bush policies are obviously inevitable. But what Mr. Obama must keep in mind is that the laws of war form a relatively seamless web. Different elements -- military detention and prosecution, and robust rules of engagement driven by combat necessities -- reinforce each other. So while he may grant detainees additional due process rights (the courts have already established a right to habeas corpus proceedings for those at Guantanamo), he must continue a system of military detention for most of the captured fighters.
That's because the law of war requires that enemies be "granted quarter" -- meaning prisoners must be taken if they surrender. But if these prisoners cannot be held until hostilities are concluded and must be released only to fight again, the military would be consigned to a deadly game of catch and release. Without a viable detention regime, the U.S. cannot fairly ask its soldiers to risk their lives in combat any more than we can send in troops with defective equipment.
In Today's Opinion Journal
Since routinely prosecuting captured terrorists in the civilian courts is unrealistic, some sort of military court system for the detainees must be retained, regardless of whether they are called military commissions or special courts martial. This reinvigorated military court system must be directed to begin prosecuting those captured enemy fighters that have committed war crimes against American troops or civilians. The fact that none of the individuals now held in U.S. custody in Iraq or Afghanistan has been brought to justice, even in situations where there is sufficient evidence to prosecute them, is historically unprecedented and a slap in the face of the U.S. troops fighting this war. Giving de facto immunity to war criminals is also inconsistent with international legal norms. Republicans like Sen. John McCain (R., Ariz.) and Sen. Lindsey Graham (R., S.C.), who have criticized some Bush policies, must make their voices heard here.
This system of detention and military trials must also apply here at home. We cannot limit the military legal paradigm to overseas operations. Al Qaeda has already successfully targeted American territory, and may do so again. Foreign fighters entering the U.S. to carry out attacks should not have rights superior to those on distant, more conventional battlefields. Not only does this double standard create exactly the wrong incentives for our enemies, but it is legally unsustainable. The Supreme Court has indicated a willingness to extend constitutional protections to detainees held where the United States exercises a sufficient level of control, and this ruling can easily be extended beyond Gitmo.
Finally, the new administration cannot behave as if the military justice system for detainees is shameful, like some crazy uncle in the attic. These are legitimate laws of war and should be treated as such.
Mr. Bush's opponents have denigrated this system for nearly eight years. Many of them have now assumed power, and with power comes responsibility -- especially when it comes to protecting Americans from their enemies.
Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department under Presidents Reagan and George H.W. Bush.
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Anyone want to guess how many innocents will die because of Obama's policies?
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The New Era of Irresponsibility
By Ben Johnson
FrontPageMagazine.com | Friday, January 23, 2009
Upon hearing that President Obama plans to close Guantanamo Bay within a year, the first thought that occurred to me was: where will terrorists go for their lemon chicken? One detention center librarian has said "a few [detainees] are kind of hooked on" the Harry Potter series; will Obama at least detain them long enough to finish The Deathly Hallows? For that matter, where else will these young jihadists ever enjoy access to a several thousand-volume library? How can you keep a boy in the compound once he's seen Gitmo?
Such a flippant reaction, of course, minimizes the very real consequences of The New Era of Irresponsibility. Terrorists have had no trouble retaining their foot soldiers. "Reformed" detainee Said Ali Al-Shihri is presently the deputy leader of Al-Qaeda in Yemen. A total of 61 former detainees have returned to the battlefield, or 12 percent of the 510 released under the more stringent measures President Obama is discarding, which deemed them "innocent" and unlikely to threaten American interests if set free. That makes the following report from the Associated Press particularly chilling: "Former detainees...around the world welcomed President Barack Obama's decision to close the Guantanamo Bay detention center."
Thursday's triple-threat exective orders - closing Guantanamo Bay no later than one year from now, shuttering rendition "black sites," and binding interrogators to the Army Field Manual for high value detainees - threaten to destroy the security apparatus that has kept this nation safe for seven years. Where will the detainees be sent? What legal rights might they incur as a result? And how can we assure not a single American life is lost as a result of releasing dozens, if not hundreds, of dangerous fundamentalist warriors?
These questions are not totally lost on the Obama administration; they were simply ignored in the stampede to curry world favor. A senior White House official assessed the remaining Gitmo detainees, saying, "There's one category that we can transfer. There's one category that we can try. The third category can't be transferred, can't be tried." What will be done with these? As Press Secretary Robert Gibbs' appalling responses showed during his first press conference, he has no idea. Not to worry, Barack Obama has a solution: a government committee, likely headed by a man who believes "waterboarding is torture," which will make recommendations within six months. Typically, leaders analyze their plans ahead before acting, assess the possible consequences against the intended goals, and then decide whether they are worth pursuing. In this case, the goal of "cleaning up our image" trumped the consequences of possibly releasing the 21st and 22nd hijackers. (Ironically, Obama's actions were praised by the same Democrats who criticized President Bush for not having "a withdrawal strategy" from a war before invasion.)
On rendition, the same White House official remarked, "There are some renditions that are in fact justifiable and defensible, and there are others that have been mistakes and are not justifiable." Yet the president chose to destroy the network of permanent prisons that might be important in those "justifiable and defensible" cases.
Although Obama surrounded himself with military men for his signing photo op, those in positions of authority disagree with the spirit of his order. The Director of National Intelligence, Admiral Michael McConnell, has said, "Does the [intelligence] community need interrogation techniques beyond what's in the Army Field Manual? In my opinion we do."
Objective evidence bears him out. Lt. Gen. Randall “Mark” Schmidt testified before the Senate Armed Services Committee in 2005 that when enhanced interrogation techniques were applied to 20th hijacker Mohammed al-Qahtani, he “proved to have intimate knowledge of [terrorists’] future plans” and provided “extremely valuable intelligence.” CIA chief Michael Hayden testified last February that two of the three al-Qaeda terrorists waterboarded, Khalid Sheikh Mohammed and Abu Zubaydah, provided the agency with one-quarter of all human intelligence it had about al-Qaeda. Maybe our armed forces can safeguard our Republic with only 75 percent of the puzzle. Maybe not.
True, Obama's executive orders hold out the possibility of exceptions in virtually every one of these situations, although no one, including the president, seems to know under what circumstances those exceptions might be invoked, if ever. The potential for loopholes can be read as a sign of moderation, or a mere nod to reality. But it is easier to maintain a state of readiness than to assume the appropriate conditions can be recreated the instant they are needed. Special permission for harsh techniques may be granted or temporary rendition sites may be located, in time - but that is not good enough if interrogators are acting against a ticking time-bomb. And as the nation tragically learned before September 11th, interrogators often do not know when they are acting against a ticking time-bomb.
At the signing ceremony Thursday, Obama said, "The message that we are sending around the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism, and we are going to do so vigilantly, we are going to do so effectively, and we are going to do so in a manner that is consistent with our values and our ideals."
The actual message Obama sent is that the United States now places "world opinion" above its own well-being; that the commander-in-chief of the War on Terror is willing to grant the other side tactical advantages; that the leader of the free world acts on image without thinking out the practical consequences his actions might have for his country or his soldiers. The only silver lining is the president's hypocrisy. Thursday's signing ceremony was the triumph of style over substance, of emotional masturbation over hard-headed analysis, of the politics of guilt over the duty of self-defense. It was certainly no way to inaugurate a new era of responsibility.
Ben Johnson is Managing Editor of FrontPage Magazine and co-author, with David Horowitz, of the book Party of Defeat. He is also the author of the book 57 Varieties of Radical Causes: Teresa Heinz Kerry's Charitable Giving.
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http://www.nypost.com/seven/01232009/news/politics/the_terrorists_will_now_cheer_151497.htm?page=0&sortType=1#comments
'THE TERRORISTS WILL NOW CHEER'
9/11 KIN OUTRAGE AS OBAMA ORDERS GITMO SHUT
By CHARLES HURT in Washington and CARL CAMPANILE in NY
CRISIS TEAM: President Obama talks yesterday with (from left) Veep Joe Biden, budget chief Peter Orszag, Chief of Staff Rahm Emanuel and economy czar Lawrence Summers.
Last updated: 9:28 am
January 23, 2009
Posted: 2:03 am
January 23, 2009
President Obama yesterday issued orders to close the controversial Guantanamo Bay military prison that houses the plotters of the Sept. 11 attacks - sparking outrage from families of World Trade Center victims.
Obama wants to shut the prison camp in Cuba within a year and require the closing of any remaining secret CIA "black site" prisons abroad. He has also banned harsh interrogation techniques, such as water boarding, that critics claim constitute torture.
"A new era of American leadership is at hand," the president said.
But families of the 9/11 fallen slammed Obama for going soft on terrorists.
"The terrorists are going to be cheering," said FDNY Fire Lt. Jim McAffrey, whose brother-in-law, FDNY Battalion Chief Orio Palmer, was killed at Ground Zero.
"It's the wrong move. It sends a chilling message to people who are trying to fight the war on terror. These people are trying to kill us. Down the road, [Obama] may regret doing this."
Obama said he was certain the nation's security is strengthened when the United States adheres to "core standards of conduct."
"We think that it is precisely our ideals that give us the strength and the moral high ground to be able to effectively deal with the unthinking violence that we see emanating from terrorist organizations around the world," he said.
Retired FDNY Deputy Chief Jim Riches - whose firefighter son, Jimmy, died in the trade center's north tower - said he had just visited Guantanamo, and the detainees "get better medical treatment than the veterans."
"The families are going to suffer more. Justice delayed is justice denied," Riches said.
Rep. Peter King of Long Island, the ranking Republican on the House Homeland Security Committee, said Obama's actions embrace a soft-on-terror agenda.
"This is madness. These are hardened terrorists who should not be detained in the US," King said. "We live in a dangerous world. Guantanamo is a necessary evil."
Both McAffrey and King said they believed waterboarding is acceptable.
"On September 10, would you have put Mohamed Atta's head under water for 20 seconds to prevent the Sept. 11 attacks?" asked King, referring to the lead 9/11 hijacker.
Obama's moves mean the suspension of military war-crime trials of terrorists - raising questions over how and where they will now be prosecuted.
The president does not know yet what to do with the 245 suspected terrorists - including admitted 9/11 mastermind Khalid Sheik Mohammed - when Gitmo closes.
Legal experts have said it may be difficult to bring the detainees to trial in civilian courts because the evidence against them was sometimes obtained through methods that could be viewed as torture.
Under Obama's order, the feds would review whether detainees could be released or transferred to another country or to a US prison.
But it's unclear how and where the defendants would be tried - in federal court, military court or a special tribunal. Obama's order suggests military or civilian courts, but does not rule out a revised wartime commission.
Marine Maj. Jeff Groharing, a prosecutor in the lead trial of Sept. 11 plotters, said he wanted trials of terror suspects to resume at Guantanamo.
"There are victims out there that still need justice to be done. I don't think it would be fair to them to not see the cases through," he said.
An official monitoring Guantanamo has accused the military of torturing one 9/11 suspect, and many others claim they've been tortured.
Military law permits coerced evidence but not torture, while federal courts bar the use of all coerced evidence.
The new president called his actions just.
"The message that we are sending the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism, and we are going to do so vigilantly and we are going to do so effectively and we are going to do so in a manner that is consistent with our values and ideals," Obama said.
He did leave some wiggle room for harsher grilling techniques by calling for a review of the Army Field Manual's interrogation guidelines.
carl.campanile@nypost.com
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http://www.google.com/hostednews/afp/article/ALeqM5hZfIcWnHqBz4kQR90lC_pXaHeW4Q
Two ex-Guantanamo inmates appear in Al-Qaeda video
1 hour ago
WASHINGTON (AFP) — Two men released from the US "war on terror" prison at Guantanamo Bay, Cuba have appeared in a video posted on a jihadist website, the SITE monitoring service reported.
One of the two former inmates, a Saudi man identified as Abu Sufyan al-Azdi al-Shahri, or prisoner number 372, has been elevated to the senior ranks of Al-Qaeda in Yemen, a US counter-terrorism official told AFP.
Three other men appear in the video, including Abu al-Hareth Muhammad al-Oufi, identified as an Al-Qaeda field commander. SITE later said he was prisoner No. 333.
A Pentagon spokesman, Commander Jeffrey Gordon, on Saturday declined to confirm the SITE information.
"We remain concerned about ex-Guantanamo detainees who have re-affiliated with terrorist organizations after their departure," said Gordon.
"We will continue to work with the international community to mitigate the threat they pose," he said.
On the video, al-Shihri is seen sitting with three other men before a flag of the Islamic State of Iraq, the front for Al-Qaeda in Iraq.
"By Allah, imprisonment only increased our persistence in our principles for which we went out, did jihad for, and were imprisoned for," al-Shihri was quoted as saying.
Al-Shiri was transferred from Guantanamo to Saudi Arabia in 2007, the US counter-terrorism official said.
The other men in the video are identified as Commander Abu Baseer al-Wahayshi and Abu Hureira Qasm al-Rimi (also known as Abu Hureira al-Sana'ani).
The Defense Department has said as many as 61 former Guantanamo detainees -- about 11 percent of 520 detainees transferred from the detention center and released -- are believed to have returned to the fight.
The latest case highlights the risk the new US administration faces as it moves to empty Guantanamo of its remaining 245 prisoners and close the controversial detention camp within a year.
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The Long War Journal: Return to Jihad
Written by Thomas Joscelyn on January 25, 2009 10:30 AM to The Long War Journal
Available online at: http://www.longwarjournal.org/archives/2009/01/return_to_jihad.php
Said Ali al Shihri, former Guantánamo detainee and deputy leader of al Qaeda in Yemen. Photo from The SITE Institute.
Two former Guantánamo detainees appear in a newly released al Qaeda propaganda video, according to the SITE Intelligence Group, an organization that monitors terrorist media. The former Guantánamo inmates have been identified as Said Ali al Shihri and Abu Hareth Muhammad al Awfi. Al Awfi is also known as Mohamed Atiq Awayd al Harbi, a kunya (or nickname) meaning that he is from the al Harbi tribe on the Arabian peninsula.
According to a report that first appeared in The New York Times last week, al Shihri was recently identified as the deputy of al Qaeda’s affiliate in Yemen and may have played a direct role in al Qaeda’s attack on the American embassy in Sana'a, Yemen's capital, in September of 2008. That attack killed ten civilians, along with six terrorists. Al Awfi has been identified as an al Qaeda field commander.
Both men were released from Guantánamo in November of 2007 and sent to their native Saudi Arabia, where they entered a rehabilitation program for former jihadists that is run by the Saudi government. According to The New York Times, al Awfi condemns the Saudi program and openly threatens attacks in Saudi Arabia in the video.
The former detainees make their appearance in front of the flag used by the Islamic State of Iraq, al Qaeda in Iraq’s political front, according to an account by Agence France Presse. Al Shihri claims that he and his fellow terrorists are just continuing the jihad that was the reason for their imprisonment at Guantánamo.
"By Allah, imprisonment only increased our persistence in our principles for which we went out, did jihad for, and were imprisoned for," al Shihri says.
The U.S. government’s unclassified files, which were created at Guantánamo and released to the public by the Department of Defense in response to a Freedom of Information Act (FOIA) request by the Associated Press, reveal a number of details about both al Shihri’s and al Awfi’s careers prior to their detention.
The U.S. government accused both men of working with charities that have been designated as fronts for al Qaeda, including the Saudi-based organization al Wafa. Al Wafa is responsible for shuttling al Qaeda terrorists to and from Afghanistan, and has offices throughout Iran, Pakistan and Afghanistan.
The government’s unclassified files on al Shihri note that he was an "al Qaeda travel facilitator" who would brief "others in Mashhad, Iran on entry procedures into Afghanistan utilizing a certain crossing." In fact, al Shihri is "on a watch list for facilitating travel for Saudis willing to go to Afghanistan through Iran by providing fake passports to those unable to get one."
Al Qaeda’s use of Mashhad and other points in Iran as transit points has long been known to the U.S. government. As Ken Timmerman first reported in the Washington Times, senior Bush administration officials were briefed on the Mashhad operation as early as October of 2001. And, as the 9/11 Commission noted, most of the 9/11 hijackers transited Iranian soil en route to their day of terror.
The Long War Journal reviewed thousands of unclassified files released from Guantánamo. The Mashhad-based transit line al Shihri helped run is not the only one al Qaeda operates inside Iran. More than fifty detainees who are either currently held or have been held at Guantánamo are alleged to have had some involvement with Iran. Some of them, like the Taliban’s former governor of the Herat province, were accused of illicit dealings with the Iranian government. The governor, Khirullah Said Wali Khairkhwa, even admitted to setting up at least two meetings between senior Iranian and Taliban officials. At these meetings, Iran and the Taliban, who were one-time enemies, agreed to work together to counter American influence in South and Central Asia.
Dozens of the detainees analyzed by The Long War Journal used al Qaeda’s transit nodes in the Iranian cities of Tayyebat, Zahedan, and Mashhad – all three cities are on Iran’s easternmost border with Afghanistan. Iran’s capital, Tehran, was also identified in the unclassified files as a common transit hub.
These transit hubs were operated by Saudi-based charities that, in reality, acted as fronts for al Qaeda and the Taliban. One of these charities is al Wafa, which has been designated under Executive Order 13224 as a terrorist organization and is briefly mentioned in 9/11 Commission’s report as an al Qaeda front.
Prior to his release, al Shihri was accused of dealing with al Wafa. He had contacts with senior al Wafa officials and one of his aliases and his phone number were "found in the pocket litter of the Karachi, Pakistan manager of" al Wafa. More than 100 Saudis have been repatriated from Guantánamo to Saudi Arabia. In addition to al Shihri, dozens of others are alleged to have worked with al Wafa. Some of them helped run al Wafa’s operations inside Iran and Afghanistan as well. For example, former Guantánamo detainee Abdul Aziz al Matrafi, is alleged to have worked with the Taliban and al Qaeda at the highest levels while running al Wafa's operations. At Guantánamo, al Matrafi was accused of personally working with both Mullah Omar and Osama bin Laden.
Abu Hareth Muhammad al Awfi. Photo from The Site Institute.
Abu Hareth Muhammad al Awfi is also alleged to have worked with al Wafa. The government alleges that al Awfi was a member of both al Wafa and Jammat al Tablighi, a Pakistani-based Islamic organization that does charity work but also serves as a cover for al Qaeda members traveling around the globe. The government explains al Wafa and al Awfi’s role in the organization thusly:
“Al Wafa claimed to be a charitable organization, but it was common knowledge that al Wafa delivered weapons and supplies to Afghanistan fighters in Tora Bora. Al Wafa provided money of all currencies, including United States Dollars, to those fighters who needed it. [Al Awfi] was identified as one of approximately 400 Arabs who claimed to be members of a subset of al Wafa called Irata. However, these were actually Mujahedin fighters in Afghanistan.”
The government believes that al Awfi was in Tora Bora with other al Qaeda and Taliban members who fled the American-led invasion of Afghanistan in late 2001.
During his combatant status review tribunal at Guantánamo, al Awfi admitted that he associated with Jamaat al Tablighi, but denied all of the government’s other claims. The government alleged that his name (listed as Mohamed Atiq Awayd al Harbi) was found on a list recovered from one of Osama bin Laden’s residences in Kabul, Afghanistan in December of 2001. Al Awfi claimed that his name is a common one and it must have been another Saudi.
The government made a number of other allegations against al Awfi, including that he was trained in Chechnya along with other jihadists and that he also received training at al Qaeda’s al Farouq camp in Afghanistan. Al Awfi was also recognized by an unnamed “senior al Qaeda operative” as having stayed in an al Qaeda guesthouse in Afghanistan in the late 1990’s.
Al Awfi was captured in Pakistan in late 2001 with a large amount of money, including thousands of American Dollars and Saudi Riyals.
During his time at Guantánamo, al Awfi claimed he loved Americans and was even willing to work with the American government once he returned to Saudi Arabia. Given his appearance in a new al Qaeda video, he was clearly more willing to work with al Qaeda, as is his fellow former detainee.
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http://www.nydailynews.com/opinions/2009/01/25/2009-01-25_a_911_family_member_chides_the_new_presi.html
A 9/11 family member chides the new President for closing Guantanamo terror camp
By Michael Burke
Sunday, January 25th 2009, 4:00 AM
With his shameful order to close Guantanamo Bay, President Obama has perfectly filled the stereotype of the classic clueless ultra-Liberal - the one who can generate great passion for the rights of the guilty defendant and none for the innocent victim.
With a single stroke of the pen, Obama has delayed justice for the victims of 9/11, and in essence granted a reprieve for Al Qaeda mastermind Khalid Shaikh Mohammed, the architect of 9/11.
America does not honor our "rule of law and the rights of man" as he put in his inauguration speech by such an action. Instead, this nation abdicated its duty to justice.
It seems the new President is too far removed from the victims of 9/11. Victims like 11-year-old Bernard Curtis Brown, a passenger on American Airlines Flight 77, which crashed into the Pentagon. Everyone onboard was killed, as well as 66 people in the Pentagon. Curtis was on a trip with several of his classmates to California sponsored by National Geographic.
Obama and the Democrats have had a blind spot for 9/11 and have yet to show they have an ounce of understanding what happened that day.
Here is why we were attacked: Muslim extremists hate Americans and want us dead. Our policies in no way influenced the vitriol perpetuated on innocent Americans on Sept. 11, 2001.
It is asinine to believe that Guantanamo Bay, even with its scandalously biased coverage, has in any way inspired a single terrorist.
Khalid Shaikh Mohammed, who has offered unapologetic confessions for 9/11 and also brags that he was the assassin of journalist Daniel Pearl ("with this blessed right hand I beheaded the Jew") sits in an air-conditioned cell, innocent until proven guilty, receiving three square meals a day, specially prepared to satisfy his religious prescriptions, free medical and dental (already meeting Obama's specifications of health care as a constitutional right) and the free services of an army of court-appointed lawyers.
Welcome to the American way of life.
Obama could grant these men full constitutional rights in an American court. And when they are exonerated, we, the U.S. taxpayers, supply a luxury cruise ship trip back home. And they will still hate us and want us dead.
The only thing Obama has accomplished is convincing these mass murderers that we are too narcissistic, too foolish and too weak to protect and defend ourselves. Just as the terrorists believed prior to 9/11.
And we do not enhance our Constitution by applying it to those it was never meant to serve. Rather, the move diminishes and threatens the foundation on which our laws are built.
It is impossible to fight the war on terrorism, like every war, under the Constitution. Consequently, we cannot convict our enemies under it. They will get off. Once free, they will, despite having enjoyed the benevolence of our constitutional rights, strike us again. The Constitution then becomes a means of our destruction. If it cannot protect us, then what is to stop somebody from trying to replace it? Obama would lead us down the road to dictatorship.
The attacks of Sept. 11, 2001, were unprecedented. Everything we did in response was made up along the way. Despite that, and contrary to the echo chamber of criticism, America has managed, by pummeling Al Qaeda and liberating the peoples of two nations, to make the world a freer and safer place. We have successfully defended ourselves against any further attacks. And we have done it with a proper respect for the "rule of law and the rights of man."
Justice delayed is justice denied. That goes for the American victims of foreign attacks, also.
With this order to close Guantanamo, the countdown to the next attack has begun.
Burke is the brother of FDNY Capt. William F. Burke Jr., who was killed on Sept. 11, 2001.
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http://counterterrorismblog.org/2009/01/print/guantanamos_manipulators_leadi.php
Counterterrorism Blog
Guantanamo’s manipulators leading the new Jihad
By Walid Phares
"By Allah, imprisonment only increased our persistence in our principles for which we went out, did jihad for, and were imprisoned for."
These are the words loudly uttered by an al-Qaeda cadre who was detained in GITMO for a number of years and released in 2007 back to the region. This statement comes at a time the detention center has been ordered to be shut down within a year. This episode provides evidence that Jihadism as an ideology does not respond to the political culture of democracy nor are the indoctrinated Jihadists impacted by the moral and legal debate within what they see as the sphere of the infidels. The Guantanamo legal and ethical drama will continue to be discussed in the United Sates and the West, but for now let's look at the outpouring harsh facts.
As reported by the SITE web site, two men released from the prison at Guantanamo Bay, Cuba have appeared in a video posted on a Jihadi site. The most notorious of the two, a Saudi man identified as Abu Sufyan al-Azdi al-Shahri, or prisoner number 372, has been "elevated to the senior ranks of al-Qaeda in Yemen," a US counter-terrorism official told AFP. The other man on the video is Abu al-Hareth Muhammad al-Oufi, identified as an al-Qaeda commander. SITE stated he was prisoner Number 333. Reviewing the video provided by the Laura Mansfield monitoring group http://www.lauramansfield.com/mnhona.rm, I analyzed the statements made by al-Shahri and al-Oufi in original Arabic.
On the video, as reported accurately by all sites and news agencies, al-Shihri is seen sitting with three other men under a flag of the "Islamic State of Iraq," Al-Qaeda's regional command in Mesopotamia. The other two Jihadists in the video were identified as Abu Baseer al-Wahayshi and Abu Hureira Qasm al-Rimi (aka Abu Hureira al-Sana'ani). Al-Shiri was transferred from Guantanamo to Saudi Arabia in 2007, a US counter-terrorism official told AFP. A US source confirmed to AP that Said Ali al-Shihri, "who was jailed at Guantanamo for six years after his capture in Pakistan, has resurfaced as a leader of a Yemeni branch of al-Qaida." Al-Shihri was released by the US in 2007 to the Saudi government for "rehabilitation." But this week a statement posted on the site declared he is now the top deputy in "al-Qaida in the Arabian Peninsula," the regional command for Bin Laden's organization operating from Yemen with cells across the peninsula. The terror group has been responsible for attacks on the US Embassy in Yemen's capital Sana.
Per US documents obtained by AP, "al-Shihri was stopped at a Pakistani border crossing in December 2001 with injuries from an airstrike and recuperated at a hospital in Quetta for a month and a half. Within days of leaving the hospital, he became one of the first detainees sent to Guantanamo." According to the same sources, "Al-Shihri allegedly traveled to Afghanistan two weeks after the Sept. 11, 2001 attacks, provided money to other fighters and trained in urban warfare at a camp north of Kabul, Afghanistan." But more troubling is the fact that al-Shihri was a contact person between al-Qaeda and Iran. As reported by AP, he was "an alleged travel coordinator for al-Qaida who was accused of meeting extremists in Mashad, Iran, and briefing them on how to enter Afghanistan." Such a person operating in the most strategic area of Jihadism, the most dangerous bridge of (potential) cooperation between al-Qaeda and the Khomeinist regime, was released from Guantanamo on the basis that he said "bin Laden had no business representing Islam, denied any links to terrorism and expressed interest in rejoining his family in Saudi Arabia." When asked about his Iranian trips, he allegedly answered that he was "buying carpets for his store in Riyadh."
Is this for real? Had these facts not been cited from official US documents and had I and many colleagues not viewed the video personally, it would have been hard to believe that the Guantanamo release of Jihadists was that tragic for national security and for the future of US and allied efforts in the confrontation with Terror forces. Unfortunately, the reality of al-Qaeda's tactics regarding Guantanamo or any other detention center, judicial, administrative or military, raises unavoidable questions and brings about sobering conclusions:
1) Former inmates, in this case Abu Sufyan al-Azdi al-Shahri (Prisoner No 372) and Abu al-Hareth Muhammad al-Oufi (Prisoner No 333), are being elevated to the senior ranks of Al-Qaeda. The release of Jihadi Terrorists to their countries or other countries in the region didn't transform them into ordinary citizens but reinserted them in al-Qaeda's network. Furthermore, Salafi Jihadi chat rooms are mentioning the video and propagating the argument that those released from Guantanamo are going to be not only well received and made into heroes but will become the leaders of the Jihad (al-Qaeda and others) against the United States, the West and moderates in the region.
2) On what ground were they released? This is an important question to be raised because it would help project what will happen when the other GITMO detainees will be released. What is the measurement that US authorities have adopted to release al-Qaeda members from Guantanamo? Was it statements the Jihadists made about their forthcoming life? All al-Shahri had to do was criticize Bin Laden and pledge to return to a normal life? How did experts and psychologists guide the government in terms of concluding that indeed the Terrorists have reformed?
3) How come these released detainees to Yemen (or other countries) were able to reemerge as al-Qaeda leaders there? How come they were able to travel across the region and reorganize? What would this tell us about our "partners" in the so-called War against Terror?
4) How come US intelligence wasn't able to predict that these detainees would reinsert in al-Qaeda after being released? Or did US intelligence predict the outcome but policy makers still decided to release them?
5) Shutting down Guantanamo may be a decision based on "political, moral and strategic communications" considerations. This debate is not over apparently. But this latest video brings hard evidence that the issue isn't about a camp to be shut down but about an ideology to be countered. For according to al-Qaeda's manuals, the Jihadists are trained for when they are in detention and are prepared for all other scenarios: facing all sorts of courts, becoming martyrs or being released to perform Jihad again.
In previous articles, I underlined that al Qaeda has detention tactics and a post detention strategy. The United States must catch up with the Terror forces. It should have developed counter strategies for both stages, with or without Guantanamo. Unless proven wrong, facts show a failure in both stages. This Jihadi manipulation is a chilling reminder of the “silence of the lambs.” It is time to bridge the gap.
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Dr Walid Phares is the Director of the Future Terrorism Project at the Foundation for the Defense of Democracies and the author of The Confrontation: Winning the War against Future Jihad
By Walid Phares on January 27, 2009 12:17 AM
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President Obama's decision to close the detention facilities at Guantanamo Bay within a year is being hailed as a necessary step in restoring the good name and moral hygiene of America. Fundamentally, it tests the proposition that self-esteem can be a form of self-defense.
Nobody ever actually liked Guantanamo. It was a strange growth on the body of American law, made necessary by extraordinary circumstances that existing institutions were ill-prepared to handle. Even Donald Rumsfeld had reservations: In his excellent memoir, "War and Decision," former Defense Undersecretary Douglas Feith writes that his boss recoiled at turning his department into "the world's jailer."
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But the best case against Guantanamo was always inherently odd. It came down to the view that its benefits as a holding pen for the world's most dangerous men could not outweigh the inevitable PR disaster of removing such men to an exotic locale, a step removed from ordinary conventions of law, prone to lurid speculation about Papillon-like goings on, corroborated by the testimony of inmates trained to cry "torture" whenever incarcerated.
In other words, the smart case against Gitmo is that the stupid case against it was bound to prevail, with first-order consequences for America's image and self-image, and second-order ones for our ability to inspire, lead and be followed.
Is this true? Paradoxically, the case for Guantanamo is only becoming obvious as the clock ticks toward closure. Consider, for instance, the recent career of Said Ali al-Shihri.
Unclassified
Read the Department of Defense's summary of evidence against Said Ali al-Shihri.According to an unclassified June 2007 document from Guantanamo's Office for the Administrative Review of the Detention of Enemy Combatants, Mr. Shihri "was identified as an al Qaeda facilitator in Mashad, Iran, for youth traveling to Afghanistan"; "wanted two individuals to assassinate a writer based on a fatwa by Sheikh Hamud bin Uqla" (a favorite of Osama bin Laden); and "trained in urban warfare at the Libyan Camp north of Kabul, Afghanistan."
Charming résumé. But what's remarkable here is that the dark lords of Gitmo justice nonetheless found sufficient exculpatory evidence to release Mr. Shihri from detention. "The detainee stated that he was just a Muslim not a terrorist"; that he "denied any involvement or knowledge of assistance provided to jihadists traveling to Pakistan or Afghanistan"; and that, upon his release, "he would attempt to work at his family's furniture store, if it is still in business" in Riyadh, Saudi Arabia.
Maybe the store had gone out of business. Last week, Mr. Shihri, who had undergone a "rehabilitation course" courtesy of the Saudi government, resurfaced as al Qaeda's deputy chief in Yemen, alongside an accomplice named Mohamed Atiq Awayd al-Harbi, a colleague of Mr. Shihri's from Guantanamo who was released the same day.
Mr. Shihri's role with al Qaeda hasn't been merely ceremonial. According to reports, he was involved in a September attempt to bomb the U.S. Embassy in the Yemeni capital of Sana'a. No Americans were killed, but 16 others died in the attack. It's a pity we don't know their names.
Yesterday, Reuters reported that the embassy had again "received a threat of a possible attack." Some such attack is probably bound to succeed in killing Americans one day, perhaps in a big way, and possibly with the fingerprints of one of the 60-odd Gitmo graduates the U.S. believes have "returned to the fight." What lessons shall we draw in that event?
In Today's Opinion Journal
REVIEW & OUTLOOK
Obama and IraqWorld Bank OmertaSpeaker Nancy Malthus
TODAY'S COLUMNISTS
Main Street: Obama Should Acknowledge His Roots
– William McGurn
COMMENTARY
Animal Spirits Depend on Trust
– Robert J. ShillerCorporate Tax Cuts Should Be Part of the Stimulus
– Stephen J. EntinLet's Have Flexible Armed Forces
– Mackubin Thomas OwensEconomic Policy Will Have to Be Very Agile
– Marina v.N. WhitmanNo doubt some will conclude that the Gitmo ordeal is what turned a random collection of Peshawar holiday-makers and itinerant Saudi carpet salesmen, who made their way to the Afghan frontier on the eve of 9/11, into raging jihadists. Similar arguments were heard a generation ago in favor of deinstitutionalization, on the theory that psychiatric institutions manufacture insanity.
There will also be those who argue that the death of innocents is the price free societies pay for freedom. They will argue, too, that the price is actually a bargain, since the moral stature gained by shutting down places like Guantanamo earns us the kind of moral and political credit we need to broaden America's appeal in the Muslim world.
In his inaugural address, Mr. Obama noted that "our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint." All this is obviously true.
Then again, our security also depends on doing what we can to keep the likes of Mr. Shihri -- far from the most dangerous of Gitmo's prisoners -- away from his would-be victims. To do so is neither a violation of conscience nor a blot on our national honor; it should not be a violation of the law. And a president sworn to preserve, protect and defend the Constitution should know this.
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http://www.foxnews.com/printer_friendly_story/0,3566,483764,00.html
Bomber's Martyrdom Tape Renews Fears Over Consequences of Closing Gitmo
Tuesday , January 27, 2009
As President Obama pushes for the closure of Guantanamo Bay prison, the debate over where to house the terror detainees being held there is heating up.
An exclusive video of a former Gitmo detainee's martyrdom tape, obtained by FOX News, is a reminder of the concerns that terror suspects — who have been held but released from Guantanamo Bay — are increasingly returning to the fight against the United States and its allies.
Abdallah Ali al-Ajmi was transferred back to his home country of Kuwait after his release from Guantanamo in 2005. Last April he blew himself up in a homicide attack that killed 12 people in Mosul, Iraq.
Al-Ajmi, known in Guantanamo as Detainee 220, made his martyrdom tape before the attack.
"In the name of Allah, most compassionate, most merciful and prayers and peace be upon our Prophet," al-Ajmi says in the video. "I thank Allah, Lord of the Worlds, who freed me from Guantanamo prison and, after we were tortured, connected me with the Islamic State of Iraq [ISI]. And it is the gift of Allah to follow the path of this nation, the ISI."
In the video, translated by the NEFA Foundation, a non-profit that tracks terror groups, al-Ajmi mentions Guantanamo Bay right away. For many jihadists, having served time at Guantanamo is seen as a badge of honor.
Click here to visit the NEFA Foundation Web site.
Al-Ajmi's attack is one of the most well known and well documented cases of an ex-Gitmo detainee returning to the battlefield as a homicide bomber. His video renews concerns of many in the intelligence community of the potential consequences by releasing these prisoners.
Sixty-two detainees released from the U.S. Navy base prison in Cuba are believed to have rejoined the fight, said Pentagon spokesman Geoff Morrell, citing data from December. That's up from 37 as of March 2008, Morrell said.
The new figures come as President-elect Barack Obama issued an executive order last week to close the controversial prison. It's unlikely, however, that the Guantanamo detention facility will be closed anytime soon as Obama weighs what to do with the estimated 250 Al Qaeda, Taliban or other foreign fighter suspects still there.
FOX News' Catherine Herridge and the Associated Press contributed to this report.
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http://formerspook.blogspot.com/
Wednesday, January 21, 2009
And Then What?
Determined to keep one of his best-known campaign promises, Barack Obama is already making plans to shut down the terrorist prison at Guantanamo Bay, Cuba.
The Associated Press reports that the Obama Administration, on its first full day in office, has already began circulating a draft executive order on the detention facility. It calls for closing the prison camp within a year and in the interim, suspending military tribunals for terror suspects.
Closing the facility in Cuba “would further the national security and foreign policy interests of the United States and the interests of justice,” read the draft prepared for the president’s signature.
While some of the detainees currently held at Guantanamo would be released, others would be transferred elsewhere and later put on trial under terms to be determined.
It was not known when Obama intended to issue the order. He has been a longtime critic of the Bush administration’s decision to maintain the detention facility, which was opened after the Sept. 11, 2001, terrorist attacks.
Also unanswered are two, equally salient questions: First, what happens to those prisoners who "will be transferred elsewhere?" And secondly, how will those detainees be put on trail? (assuming that the Obama team scraps the current system of military tribunals)
With the closing of Guantanamo--and the end of military trials--it's a safe bet that remaining terrorist detainees will wind up in American prisons and the federal court system.
The most dangerous suspects may wind up at the federal SuperMax prison in Florence, Colorado. Several convicted terrorists are among the high-profile prisoners currently housed at the facility. They include the so-called "19th hijacker," Zacarias Moussaoui; shoe-bomber Richard Reid and Ramzi Yousef, a key figure in the 1993 bombing of the World Trade Center.
But there won't be any Al Qaida reunion parties at the SuperMax. Inmates spend 23 hours a day inside their cells, leaving only for an exercise period in a room that's the size of two automobiles.
Unfortunately, the SuperMax can't hold all of the terror suspects who will be leaving Guantanamo. And so far, the Bureau of Prisons hasn't explained how it plans to incarcerate the accused terrorists, before, during and after their trials. With facilities already over crowded--and gang violence on the rise--prison officials aren't exactly enthused about housing dangerous terrorists in their institutions, and keeping them away from the general population.
Then, there's the matter of actually putting the suspects on trial. The Moussaoui case illustrates the problems with prosecuting terror suspects in a federal court. Mr. Moussaoui was captured by alert FBI agents before 9/11, and he was indicted only three months after the Al Qaida attacks in New York City, Washington, D.C. and rural Pennsylvania.
It would take another four years to convict and sentence Mr. Moussaoui. During the interim, he tried to make a mockery of his trial (and the U.S. justice system), changing his plea, hiring and firing attorneys and at one point, offered a psychiatric evaluation of the trial judge, Leonie Brinkema.
Now, multiply the "Moussaoui" effect by the dozens (perhaps hundreds) of terror defendants that will soon clog our courts in eastern district of Virginia and the southern district of Manhattan, where Al Qaida operatives committed their crimes. Judges, prosecutors and defense attorneys can block off their schedules for years at a stretch, while other legal matters are pushed to the back burner. The government will also spend millions for more security. The court houses where the trials are held will become terror targets, necessitating additional measures to keep the buildings--and their employees--safe.
To address those (and other concerns) a number of legal experts have suggested the creation of National Security Courts. Those forums would be staffed by judges and lawyers with expertise in a wide range of national security matters, from intelligence gathering to the prosecution of suspected terrorists.
Presumably, the security courts would be located in facilities that are less vulnerable than federal courthouses. Most of those latter structures are poorly equipped for important terrorism trials; due to security concerns, they often become armed fortresses with restricted access, slowing the resolution of other legal matters. Located in secure facilities--and with their specialized focus--the security courts would circumvent many of the problems associated with terrorist trials in federal district courts.
But creating that special court system would take time--well over a year--and President Obama hasn't voiced support for that concept. If he sticks to his timetable for shutting down Gitmo, we can expect a flood of terrorist detainees in federal prisons later this year, and exasperating "trails" that will stretch out into the next decade.
And that prospect is preferable to shutting down Guantanamo, and ending the military tribunal process? As Mr. Obama receives plaudits for his plan to shutter that "terrorist prison," he's about to discover that the devil's in the details. That surge of suspected terrorists is inching closer to our prison and courts system. Then what, Mr. President?
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http://www.nefafoundation.org/miscellaneous/nefataliban0109.pdf
Here is what weakness and appeasement get you.
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Guantanamo judge refuses Obama's request for delay
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MIAMI (Reuters) – The chief judge for the Guantanamo war crimes court on Thursday refused U.S. President Barack Obama's request to delay proceedings against a prisoner charged with plotting an attack that killed 17 U.S. sailors.
This could force the Pentagon to withdraw the charges, though they could be refiled later if the Obama administration decides to keep the special tribunals at the U.S. naval base at Guantanamo Bay, Cuba. The White House said it was consulting with the Pentagon and the Department of Justice on how to respond, said spokesman Robert Gibbs.
Hours after taking office last week, Obama ordered Guantanamo prosecutors to seek 120-day delays in all pending cases to give his administration time to decide whether to scrap the widely criticized tribunals created by the Bush administration to try suspected terrorists outside the regular U.S. court system.
But the judge, Army Colonel James Pohl, said the law underpinning the tribunals gives the presiding judges sole authority to delay cases. He ruled that postponing proceedings against Abd al Rahim al Nashiri was not reasonable and "does not serve the interest of justice."
Nashiri is charged with conspiring with al Qaeda to crash an explosives-laden boat against the side of the USS Cole in the Yemeni port of Aden in 2000. The attack killed 17 U.S. sailors and Nashiri would face execution if convicted. His arraignment was set for February 9. Pentagon spokesman Geoff Morrell said Obama's executive order freezing the trials, which are formally known as military commissions, would guide the Defense Department's actions.
"This department will be in full compliance with the president's executive order. There's no ifs, ands or buts about that," Morrell told reporters. "While that executive order is in force and effect, trust me that there will be no proceedings continuing down at Gitmo (Guantanamo Bay) with military commissions."
The military judge, however, noted that Obama directed in his order that it "shall be implemented consistent with applicable law" and the 2006 law authorizing the trials was still applicable.
Military prosecutors and defense lawyers both supported delaying the case, arguing that Obama's pending decision on what to do with Guantanamo could render the proceedings moot. Obama has ordered the prison closed by this time next year.
Morrell said it appeared to be up to Susan Crawford, the Pentagon appointee overseeing the Guantanamo trials, to resolve the matter. She could withdraw the charges without prejudice, allowing them to be refiled again later.
Charges are pending against 21 Guantanamo prisoners, though Crawford has only referred 14 cases to trial. Judges have issued orders freezing the proceedings in six of those.
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**Ok, let's hear the screams of outrage now.**
http://www.latimes.com/news/la-na-rendition1-2009feb01,0,7548176,full.story
From the Los Angeles Times
Obama preserves renditions as counter-terrorism tool
The role of the CIA's controversial prisoner-transfer program may expand, intelligence experts say.
By Greg Miller
February 1, 2009
Reporting from Washington — The CIA's secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.
But even while dismantling these programs, President Obama left intact an equally controversial counter-terrorism tool.
Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.
Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism -- aside from Predator missile strikes -- for taking suspected terrorists off the street.
The rendition program became a source of embarrassment for the CIA, and a target of international scorn, as details emerged in recent years of botched captures, mistaken identities and allegations that prisoners were turned over to countries where they were tortured.
The European Parliament condemned renditions as "an illegal instrument used by the United States." Prisoners swept up in the program have sued the CIA as well as a Boeing Co. subsidiary accused of working with the agency on dozens of rendition flights.
But the Obama administration appears to have determined that the rendition program was one component of the Bush administration's war on terrorism that it could not afford to discard.
The decision underscores the fact that the battle with Al Qaeda and other terrorist groups is far from over and that even if the United States is shutting down the prisons, it is not done taking prisoners.
"Obviously you need to preserve some tools -- you still have to go after the bad guys," said an Obama administration official, speaking on condition of anonymity when discussing the legal reasoning. "The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."
One provision in one of Obama’s orders appears to preserve the CIA's ability to detain and interrogate terrorism suspects as long as they are not held long-term. The little-noticed provision states that the instructions to close the CIA's secret prison sites "do not refer to facilities used only to hold people on a short-term, transitory basis."
Despite concern about rendition, Obama's prohibition of many other counter-terrorism tools could prompt intelligence officers to resort more frequently to the "transitory" technique.
The decision to preserve the program did not draw major protests, even among human rights groups. Leaders of such organizations attribute that to a sense that nations need certain tools to combat terrorism.
"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured -- but that designing that system is going to take some time."
Malinowski said he had urged the Obama administration to stipulate that prisoners could be transferred only to countries where they would be guaranteed a public hearing in an official court. "Producing a prisoner before a real court is a key safeguard against torture, abuse and disappearance," Malinowski said.
CIA veterans involved in renditions characterized the program as important but of limited intelligence-gathering use. It is used mainly for terrorism suspects not considered valuable enough for the CIA to keep, they said.
"The reason we did interrogations [ourselves] is because renditions for the most part weren't very productive," said a former senior CIA official who spoke on condition of anonymity because of the sensitive nature of the subject.
The most valuable intelligence on Al Qaeda came from prisoners who were in CIA custody and questioned by agency experts, the official said. Once prisoners were turned over to Egypt, Jordan or elsewhere, the agency had limited influence over how much intelligence was shared, how prisoners were treated and whether they were later released.
"In some ways, [rendition] is the worst option," the former official said. "If they are in U.S. hands, you have a lot of checks and balances, medics and lawyers. Once you turn them over to another service, you lose control."
In his executive order on lawful interrogations, Obama created a task force to reexamine renditions to make sure that they "do not result in the transfer of individuals to other nations to face torture," or otherwise circumvent human rights laws and treaties.
The CIA has long maintained that it does not turn prisoners over to other countries without first obtaining assurances that the detainees will not be mistreated.
In a 2007 speech, https:// www.cia.gov/news-information/speeches-testimony/2007/general-haydens-remarks-at-the-council-on-foreign-relations.html "> www.cia.gov/news-information/speeches-testimony/2007/general-haydens-remarks-at-the-council-on-foreign-relations.html the agency had to make a determination in every case "that it is less, rather than more, likely that the individual will be tortured." He added that the CIA sought "true assurances" and that "we're not looking to shave this 49-51."
Even so, the rendition program became a target of fierce criticism during the Bush administration as a series of cases surfaced.
In one of the most notorious instances, a German citizen named Khaled Masri was arrested in Macedonia in 2003 and whisked away by the CIA to a secret prison in Afghanistan. He was quietly released in Albania five months later after the agency determined it had mistaken Masri for an associate of the Sept. 11 hijackers.
Masri later described being abducted by "seven or eight men dressed in black and wearing black ski masks." He said he was stripped of his clothes, placed in a diaper and blindfolded before being taken aboard a plane in shackles -- an account that matches other descriptions of prisoners captured in the rendition program.
In another prominent case, an Egyptian cleric known as Abu Omar was abducted in Italy in 2003 and secretly flown to an Egyptian jail, where he said he was tortured. The incident became a major source of embarrassment to the CIA when Italian authorities, using cellphone records, identified agency operatives involved in the abduction and sought to prosecute them.
Defenders of the rendition program point out that it has been an effective tool since the early 1990s and was often used to bring terrorism suspects to courts in the United States. Among them was Ramzi Ahmed Yousef, who was captured in Pakistan and was convicted of helping orchestrate the 1993 World Trade Center bombing.
Because details on the rendition program are classified, the scale of the program has been a subject of wide-ranging speculation.
An exhaustive investigation by the European Union concluded that the CIA had operated more than 1,200 flights in European airspace after the Sept. 11 attacks.
The implication was that most were rendition-related, with some taking suspects to states where they faced torture.
But U.S. intelligence officials contend that the EU report greatly exaggerated the scale of the program and that most of the flights documented by the Europeans involved moving supplies and CIA personnel, not prisoners.
Instead, recent comments by Hayden suggest that the program has been used to move no more than a handful of prisoners in recent years and that the total is in the "midrange two figures" since the Sept. 11 attacks.
greg.miller@latimes.com
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http://news.yahoo.com/s/ap/20090204/ap_on_re_mi_ea/ml_saudi_guantanamo_wanted/print;_ylt=Aqam7ISLSp4n4wroVv2b2d8UewgF;_ylu=X3oDMTB1MjgxN2UzBHBvcwMxNARzZWMDdG9vbHMtdG9wBHNsawNwcmludA--
11 former Gitmo inmates on Saudi wanted list
By PAUL SCHEMM, Associated Press Writer 1 hr 27 mins ago
CAIRO – Saudi Arabia said Wednesday that 11 men released from the U.S. prison at Guantanamo Bay are now on the kingdom's most-wanted list despite having attended its touted extremist rehabilitation program.
President Barack Obama has signed an executive order closing the detention center at the naval base in Cuba, leaving countries scrambling over what to do with released detainees.
Saudi Arabia and terror experts defended the program for terror suspects, saying it is largely effective. The Pentagon has said it's unlikely to change its policy on prisoner transfers to the kingdom.
Saudi Arabia, the birthplace of al-Qaida leader Osama bin Laden and home to 15 of the 19 Sept. 11 hijackers, has pursued an aggressive campaign against militants but also sought to rehabilitate those it believes can abandon their violent extremist beliefs and reintegrate into society.
These rehab programs — and the kingdom's assurances that they are effective — have been a major reason why most of the Saudis have been released from Guantanamo. Only 13 of the 133 Saudis detained there remain, said Saudi Interior Ministry spokesman, Gen. Mansour al-Turki.
"Besides the 11 people (on the wanted list) who came from Guantanamo, there are still 106 people who have gone through this rehabilitation program and are doing OK," al-Turki told the Associated Press by phone. Three others committed suicide in Guantanamo.
The 11 were on a list of 83 Saudis and two Yemenis wanted for their connections to al-Qaida issued Monday by the Saudi government. The government knows where the rest of the 106 former detainees are.
Among the 11 were two Saudis who have emerged as the new leaders of Yemen's branch of al-Qaida. The two appeared in a militant video last month calling for attacks against Arab governments and Western interests.
"Imprisonment only increased our persistence in our principles for which we went out, did jihad for, and were imprisoned for," Said Ali al-Shihri said during the video. Al-Shihri was jailed for six years in Guantanamo after his capture in Pakistan, and said he resurfaced as the branch's leader after completing the Saudi rehab program.
The Saudi rehab program placed former Guantanamo detainees in secure compounds with facilities such as gyms and swimming pools. Imams gave them lessons on moderate Islam, and they met with psychologists and sociologists.
Georgetown University terror expert Bruce Hoffman stressed that the vast majority of those going through the program have not rejoined extremist groups.
"I think it would be a mistake to view the program as a failure. Instead of looking at the 11, concentrate on the (others) who have not gone back to terror. ... I think the success has been remarkable," he said.
The Pentagon also has said it is unlikely to stop prisoner transfers to Saudi Arabia. After the video of al-Shihri was released on extremist Web sites in January, Pentagon spokesman Navy Cmdr. Jeffrey Gordon said the U.S. sees the Saudi rehab program as admirable.
"The best you can do is work with partner nations in the international community to ensure that they take the steps to mitigate the threat ex-detainees pose," Gordon said.
But Obama's Jan. 21 decision to close Guantanamo within a year has unleashed a debate in the U.S. about what to do with the remaining 245 inmates, some of whom are considered very dangerous. On Wednesday, the European Parliament said EU countries should help the administration accept Guantanamo inmates.
Obama's announcement came about a week after the Pentagon issued a report saying that increasing numbers of those released have rejoined militant organizations and carried out attacks. Figures from December indicated that 61 of the former detainees have rejoined militant movements, up from 37 in March, it said, without detailing the nationalities of the 61.
Former Vice President Dick Cheney has cautioned against closing Guantanamo, claiming the remaining inmates are "hard-core."
"If you release the hard-core al-Qaida terrorists that are held at Guantanamo, I think they go back into the business of trying to kill more Americans and mount further mass-casualty attacks," he told the online political magazine Politico in an interview published Wednesday. "If you turn 'em loose and they go kill more Americans, who's responsible for that?"
But al-Turki, the Saudi spokesman, stands by his country's rehab efforts, which hundreds of Saudis have passed through. He said the families of the 11 on the most-wanted list were the ones who alerted the government that the former Guantanamo detainees had disappeared.
"The program is meant to show society and the community and the families of these people that we are doing everything possible as a government to give these people all the chances they need," he said.
Khaled al-Maeena, the editor of the English-language Saudi daily newspaper Arab News, said community involvement is the strength of the Saudi program.
"There is no use putting them in jail and creating more hatred. Once you put them in society they are under, in essence, your watch. You know what they do," he said.'
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Obama and the Treatment of Terrorist Suspects
February 4, 2009
By Fred Burton and Ben West
U.S. President Barack Obama signed an executive order Feb. 1 approving the continued use of renditions by the CIA. The order seems to go against Obama’s campaign promises to improve the image of the United States abroad, as renditions under the Bush administration had drawn criticism worldwide, especially from members of the European Union. The executive order does not necessarily mean that renditions and other tactics for dealing with terrorist suspects will proceed unchanged, however.
Obama came into office promising changes in the way the United States combats terrorism. One of these changes was a new emphasis on legal processes and a shift away from controversial methods of treating terrorist suspects, like rendition, harsh interrogation techniques and secret prisons. The Obama administration can and will roll back some of these tactics, as demonstrated by the president’s Jan. 22 order to close the detention center at Guantanamo Bay. But some will continue.
Renditions and the Legal Process
Renditions are a powerful tool for counterterrorism operations. They involve agents moving into a foreign country to execute a warrant. Once the fugitive is located, agents track, seize and transport him out of the country for interrogations, or to stand trial, as in the cases of Lebanese hijacker Fawaz Younis, CIA shooter Mir Amal Kanzi, 1993 World Trade Center bombers Abdel Basit (aka Ramzi Yousef) and Mahmud Abouhalima, and even Ilich Ramirez Sanchez (aka Carlos the Jackal).
Some of the individuals targeted for renditions have warrants out for their arrest, but are taking refuge in countries that either lack the law enforcement capability to capture them or cannot arrest and extradite them for political reasons. By contrast, the renditions where there is no indictment or warrant and where the suspect is transported to a secret prison for interrogation and detention without a public trial are far more controversial. Renditions of either kind virtually always occur with the knowledge of the host country, and usually with the host government’s express consent. (Few countries wish to shelter suspected terrorist masterminds.)
Renditions thus involve legal questions as much as they do diplomatic questions. Before renditions can be carried out, the Washington bureaucracy kicks into full swing. The U.S. State Department must consider the diplomatic ramifications. The ambassador in the host country must consider his or her position and judge the response of his or her contacts in the host country government. The U.S. Justice Department must also sign on. Finally, the agency in charge of actually nabbing the suspect must be willing to work within any restrictions imposed by any one of the many individuals who must approve the operation.
Even when the government ultimately deems a rendition operation legal, numerous factors can still stymie the effort (not least of which is that by the time all the necessary approvals have been obtained, the window of opportunity to nab the suspect might have closed). So while Obama’s executive order in theory permits renditions, it is only one part of the whole process; the appropriate members of Obama’s administration must also be on board.
Many members of the Obama administration also served in the Clinton administration, which was widely seen as considering all legal ramifications of potential renditions before taking any action. As a former deputy attorney general in the Clinton administration, new Attorney General Eric Holder enjoyed a reputation for deliberating on renditions to the point of inaction — effectively vetoing such operations.
While an appearance of greater attention to the law might come as a relief to many, actors in the field do not have the luxury of endless deliberation and total consensus — they have a narrow window of opportunity in which to act on perishable intelligence. Assuming that Obama’s administration acts with deliberation and pursues consensus building (as he himself has emphasized, and has demonstrated in the bipartisan nature of his Cabinet selections), the legality of renditions might become moot if they are not agreed upon in a timely manner. There is a fine line to walk between efficiency and legality in this field, with extremes on either side being detrimental to national security.
By their very nature, renditions are ad hoc and rarely fit into a nice, clean process, something that explains their controversial nature. They frequently occur in countries allied to the United States, meaning the practice falls outside the scope of war. And renditions resulting in suspects’ standing trial are far less controversial than those involving secret prisons, harsh interrogation tactics and reliance on third countries to carry out interrogations — tactics disfavored by the Obama administration.
Alternatives to Rendition
Apprehending suspects in foreign countries does not always involve controversial tactics. U.S. counterterrorism officials also use tactics abroad that are not forbidden under U.S. law, though they might be illegal if used within the United States (and could well be illegal in the country where U.S. agents employ them). In general, such tactics remain constant as administrations change. These tactics include surveillance of foreign targets, ruse operations and economic incentives and punishments to encourage cooperation in counterterrorism efforts.
Ruse operations, a less controversial way to apprehend fugitives than renditions, involve deception, obviating the need to jump through the bureaucratic hoops required for renditions. Ruse operations involve luring suspects to a location where U.S. agents can apprehend them legally. This involves persuading targets to venture into international waters, for example, or even to travel to the United States, where U.S. agents lie in wait.
While such tactics avoid the legal complexities surrounding renditions, they are extremely difficult to carry out. Suspects worth chasing around the world typically are not overly gullible, and know where it is safe to travel. So while there is no reason to believe that ruse operations will cease anytime soon, successful ones are few and far between.
Sometimes killing a terrorist target is both more efficient and less legally complex than renditions or ruse operations. Tactical strikes, such as the unmanned aerial vehicle-launched missile strikes against suspected al Qaeda targets in Pakistan, both remove a suspected terrorist target and avoid drawn-out legal processes. Like its predecessor, the Obama administration apparently sees striking at al Qaeda targets along the Pakistani-Afghan border as acceptable within the scope of the ongoing war in Afghanistan, despite Pakistani protests. The latest such U.S. strike came Jan. 23, just three days after Obama took office. Given the administration’s presumed hesitation based on legal reservations and an unwillingness to expand warfare beyond the Afghan theater, this tactic is unlikely to pop up in other areas of the world without a serious threat escalation.
Secret Prisons and Interrogation Issues
Obama on Jan. 22 also ordered the CIA to close its secret prisons around the world that hold detainees without adhering to U.S. legal standards. Because fewer than 100 detainees were held in these prisons, however, this is a minor point.
A different executive order also issued Jan. 22 applied the interrogation guidelines outlined in the U.S. military field handbook and the Geneva Conventions to the CIA. Obama and Holder also have made it clear that the new administration views waterboarding as torture and thus illegal, settling the debate on the matter.
Still, it is only a matter of time before new techniques used by interrogators in the field will face questions of legality and morality. No national leader can micromanage at the field level. Even though the Justice Department and senior White House officials in the Bush administration signed secret findings authorizing the CIA to conduct waterboarding in specific cases, tactical, field-level topics do not stick around at the level of national policy for very long.
With secret prisons on the way out, more restrictions on how agents act in the field and an expected decline in renditions, a greater U.S. reliance on third countries to carry out rendition operations is possible. During the Clinton and Bush administrations, countries like Egypt and Jordan were known to cooperate with U.S. agencies in detaining and interrogating prisoners.
Critics claimed that relying on third countries exploited a loophole that allowed the United States to see that unsavory acts were committed without directly carrying them out. Obama’s emphasis on using diplomacy to improve the U.S. image in the world suggests that his administration will turn to other countries for counterterrorism assistance instead of operating unilaterally. Obama already has asked for other countries to help out more in Afghanistan (specifically European countries). Obama might also tap third countries like Portugal, Switzerland or Germany to take in detainees leaving Guantanamo who are not sent back to home countries like Yemen and Saudi Arabia after the facility’s closure. Working with these countries to ensure safe delivery of the detainees out of U.S. custody will remove a lightning rod for criticism of the United States in the Muslim world.
Delegating counterterrorism responsibilities to other countries allows the United States to avoid the legal complexities inherent in renditions, secret prisons and harsh interrogation. But ultimately, increased reliance on other countries with different interests can enhance the overall complexity of missions. It is also important to remember that the United States possesses one of the most capable counterterrorism forces in the world, and that other countries simply cannot carry out the same missions that the United States does. This is not to say that pursuing U.S. interests abroad does not call for diplomacy (which is one of the administration’s main tools to fight terror), but that seeking international approval and establishing legal cover does reduce efficiency and restrain U.S. capabilities. Finding the balance between fighting terror efficiently and remaining within legal boundaries will be a key challenge for the Obama administration.
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By JAMES TARANTO
The Obama administration must have been unhappy last night with ABC News, which sent out a pair of "Breaking News" emails: "Obama Likely to Order Charges Dropped Against Alleged U.S.S. Cole Bombing Mastermind," said the first. The second announced that the charges had, in fact, been dropped. The effect was to create an impression that the administration had gone even softer on terror than anyone had feared it would.
In fact, the dismissal of charges against Abd al-Rahim al-Nashiri was an insignificant development, as detailed in this Associated Press story. Charges against all other Guantanamo detainees, including 9/11 planner Khalid Sheikh Mohammad, had already been dismissed pursuant to President Obama's executive order halting the military-commission process pending review. The presiding judge in the al-Nashiri trial had effectively defied the order by scheduling an arraignment for today. His superior overruled him, and properly so. Whatever the merits of Obama's policies, he is the commander in chief, and military officers have a duty to follow his orders.
Al-Nashiri and the other defendants are not about to be turned loose. The cases against them were dismissed without prejudice, which means new charges can be brought against them. And they are still enemy combatants. Obama has declared his intention to remove them from Guantanamo by January, but he has not pledged to free them. Releasing these terrorists would endanger American security. Delaying their trial, or refraining from putting them on trial at all, would not.
Podcast
James Taranto on detainee policy.
This points to perhaps the biggest error the Bush administration made in its detention policy: placing a heavy emphasis on war-crimes trials--"bringing terrorists to justice"--as opposed to detention for the purpose of keeping them off the battlefield. The administration thereby invited comparisons with the civilian criminal-justice system, with its solicitous attitude toward the rights of the accused. The Bush administration's law-enforcement mindset probably hindered national security, and almost certainly would have done so eventually without a change in policy.
Many Guantanamo detainees are dangerous but cannot be prosecuted, even in a military commission, because of a lack of evidence that they have committed specific crimes. Had the commission trials proceeded on schedule--and we have the Supreme Court to thank for delaying them this long--at some point the Bush administration would have faced a political problem in that it would have had to explain why the worst of the worst were getting trials while the merely worse of the worst were being held forever without charges.
As far as we know, top Bush officials were oblivious to this problem. We made the point to then-Attorney General Alberto Gonzales at a Wall Street Journal editorial board meeting in September 2006, and he showed no sign of comprehension. President Bush's public comments around the same time, in which he said he wanted to close Guantanamo after the military commissions had done their work, suggest he also did not understand it.
There is reason to think that the Bush administration was already succumbing to pressure to release detainees who could not be tried criminally, even if they still posed a danger. By the Pentagon's estimate, some 60 former Guantanamo detainees have returned to the battlefield. This number has prompted some skepticism, but no one denies that some detainees have resumed combat.
If the Obama administration follows its ideological inclinations, it will compound Bush's errors, releasing even more dangerous but unprosecutable terrorists, and perhaps moving trials to civilian courts, which could compromise national security by forcing the release of classified material and the freeing of terrorists who managed to get acquitted or to have convictions overturned on appeal.
But the new administration has not actually instituted any such policies; it has merely undertaken a review. It is possible that those conducting the review will figure all this out, and that they will find a way of reorienting detention policies to make security, rather than justice, the central priority.
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http://www.latimes.com/news/nationworld/nation/la-na-obama-detainees10-2009feb10,0,6334034.story?track=rss
From the Los Angeles Times
Miranda rule may hamper detainee trials
None of the men held at Guantanamo were advised of their rights against self-incrimination. That and other issues may cause problems for President Obama's goal of trying them in a civil legal system.
By Julian E. Barnes and David G. Savage
February 10, 2009
Reporting from Washington — Accused in a 2002 grenade blast that wounded two U.S. soldiers near an Afghan market, Mohammed Jawad was sent as a youth to Guantanamo Bay. Now, under orders by President Obama, he could one day be among detainees whose fate is finally decided by a U.S. court.
But in a potential problem, Pentagon officials note that most of the evidence against Jawad comes from his own admissions. And neither he nor any other detainee at the U.S. prison at Guantanamo Bay, Cuba, was ever told about their rights against self-incrimination under U.S. law.
The Miranda warning, a fixture of American jurisprudence and staple of television cop shows, may also be one of a series of constructional hurdles standing between Obama's order to close the island prison and court trials on the mainland.
A procession of similar challenges -- secret evidence, information from foreign spy services and coerced statements -- also could spell trouble for prosecutors.
All of these problems illustrate the larger difficulty that lies ahead as the nation moves from the "law of war" orientation used by the Bush administration in dealing with detainees to the civilian legal approach preferred by Obama.
Obama last month announced sweeping changes, ordered humane treatment and invited in the international Red Cross. But the changeover will not be easy or quick, underscoring the complexity of undoing the Bush administration's policies.
John D. Hutson, a former chief judge advocate general of the Navy who advised the Obama transition team, said the new administration simply has not decided on rules to detain and try terrorism suspects -- those at Guantanamo now, or those captured in the future.
"It's still up in the air," Hutson said, "to the consternation of some of the human rights groups."
The administration has launched a review of the individual detainee cases, aimed at determining who can be prosecuted in federal courts.
"Miranda is an issue -- it is a potential issue in prosecution," said a senior Obama administration official, speaking on condition of anonymity because the review is ongoing. "The purpose of the review is to see how much of an issue and to see in what cases it is possible to proceed."
The administration is also reviewing whether the controversial military commission system instituted by President George W. Bush should be retained in some form for detainees who cannot be tried because of Miranda or other legal hurdles.
"The executive order purposely did not eliminate or do away with military commissions, and that is because there is an understanding that option needs to remain open to see what the review turns up," the senior Obama administration official said. "Some revised type of military commission might possibly be necessary, but that is very much an open question."
Under the Bush administration's wartime approach, prisoners were captured and interrogated for intelligence purposes, then held as a preventive measure. No Obama official has suggested that prisoners should have been read their rights on a battlefield.
But once the decision was made to put them on trial, the legal picture changed. Some legal experts said they should have been re-interviewed and warned that their statements would be used against them. Others said that for many, the history of their captivity makes trial in civilian court improbable.
"If you want to prosecute them, I have to think Miranda would apply. Miranda always applies in criminal prosecution," said a former Bush administration official, who spoke about pending cases on condition of anonymity. "Miranda hasn't applied to most things that happened in war before because there is no prosecution involved."
However, federal courts may find that Miranda does not apply to interrogations conducted for the purpose of intelligence gathering, said Gabor Rona, the international legal director for Human Rights First. Instead, judges may decide whether to accept confessions based on whether the statements were coerced.
"The idea that the failure to give Miranda warnings is a great impediment to using federal courts is a simplistic falsehood," Rona said.
The prosecution of Jawad, now 24, has been hampered in other ways. Before Jawad's military commission case was halted last month, a military judge had barred prosecutors from using Jawad's confession to Afghan authorities as trial evidence, saying it was obtained through torture.
Jawad is not among the so-called high-value detainees at Guantanamo, whom U.S. officials charge had significant roles in Al Qaeda or in planning the Sept. 11 attacks. But those cases could also present problems involving coerced evidence, classified information and constitutional rights because of the collision between civil and wartime measures for dealing with detainees.
Lawyers and judges amid the controversy have noted that neither Congress nor the Supreme Court has grounded U.S. policy in one arena or the other, leaving uncertain which set of rules applies.
A federal judge in Washington hearing habeas corpus claims from Guantanamo prisoners expressed frustration on the issue.
"I don't understand how the Supreme Court made the decision it made and left that question open," U.S. District Judge Richard J. Leon said during an October hearing.
Meanwhile, civil liberties groups, while applauding Obama's intention of overhauling the government's approach to terrorism, are concerned that he also has held some Bush-era policies as options.
As an example, Jameel Jaffer, director of the ACLU's National Security Project, called Obama's plan to close Guantanamo "a promising start" but said it leaves open the option of preventive detention.
"That should be retired," Jaffer said. "The right way to deal with people suspected of committing terrorism crimes is to prosecute them in ordinary federal courts."
julian.barnes@latimes.com
david.savage@latimes.com
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President Obama has done a masterful job disguising his Administration's growing antiterror maturity, but this week produced further evidence that he is erring on the side of keeping the country safe rather than appeasing the political left. The Justice Department filed to dismiss a federal appeals case involving rendition, embracing an argument developed by . . . the Bush Administration.
APIn other words, the anti-antiterror lobby is being exposed as more radical than its putative banner carrier. As Mr. Obama is learning, the left's exertions to disarm the country's counterterrorism arsenal are as dangerous now as they were prior to his election.
In this closely watched case, the American Civil Liberties Union sued the flight-logistics outfit Jeppesen DataPlan in 2007 on behalf of Binyam Mohamed and four other Guantanamo detainees. The argument was that the Boeing subsidiary was complicit in arranging flights for rendition, a policy that transfers certain terror prisoners seized abroad to other countries for interrogation. Mohamed and his compatriots claim they are the victims of torture overseas.
The Bush Administration argued the case should be dismissed because open proceedings could damage national security by disclosing state secrets. A lower court agreed. Most everyone expected the Obama Justice Department to dump the secrecy line when the case came up for review before the left-leaning Ninth Circuit Court of Appeals on Monday, apparently including the Ninth Circuit.
Judge Mary Schroeder asked leadingly, "Is there anything that might have happened" to cause Justice to shift its views? "No, your honor," the Justice attorney, Douglas Letter, replied. A startled Judge Schroeder tried again. "The change in Administration has no bearing?" Mr. Letter reiterated that his positions had been "authorized" and "thoroughly vetted with the appropriate officials within the new Administration."
The Obama Administration says it will invoke the state secrets privilege more sparingly than its predecessor. But it is really admitting that lifting the hood on classified intelligence-gathering would let terrorists know what to expect, and to shift their operations to avoid detection. Perhaps the Obama team has also stumbled upon the larger game behind lawsuits like the one against Jeppesen -- which is to intimidate private companies into refusing to cooperate with the government on national security.
The left has failed to achieve its policy ambitions through Congress or by directly challenging the government in court. So the latest tactic is suing third parties such as Jeppesen -- note that the ACLU is not suing here to win Mohamed's release -- to hamstring the executive branch via the courts. These companies thought they were doing their patriotic duty by lending a hand.
But the anti-antiterror trial bar uses lawsuits to raise the costs for these private actors of cooperating with the intelligence community, and the legal exposure makes it that much more difficult for the feds to gain private cooperation. Sometimes the suits shut down such cooperation altogether. The telecom companies, faced with multibillion-dollar civil complaints over warrantless wiretapping, refused to proceed without legal immunity, and the 2007-2008 political dispute nearly ended the program. The FISA appeals court revealed last month that one (still anonymous) telecom even sued the government to opt out.
The larger story here is that the anti-antiterror lobby is losing the man it thought was its strongest ally. During his campaign, Mr. Obama talked as if he really believed that the Bush Administration was uniquely wicked on national security. Joe Biden cosponsored Senate legislation that would have prevented the executive branch from making state-secrets claims to shelve lawsuits, rather than shielding individual evidence from judicial (and public) scrutiny.
Now it seems that the Bush Administration's antiterror architecture is gaining new legitimacy, just as Eisenhower validated Truman's Cold War framework. Mr. Obama claims to have banned coercive interrogation techniques, except in those cases where more extreme measures are necessary to save lives. He says he'll shut down Gitmo in a year or so, but his subordinates -- including Elena Kagan during her confirmation hearings for Solicitor General this week -- admit that indefinite detention will still be necessary for some terrorists. He walked back his wiretap absolutism even before he was elected. Now the Administration has endorsed the same secrecy posture that he once found so offensive, merely saying that it will be used less frequently. We'll see.
These are all laudable signs of Mr. Obama's antiterror progress. Perhaps some day he'll acknowledge his debt to his predecessor.
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WASHINGTON — Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush’s “war on terrorism,” the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda.
In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.’s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.
The administration has also embraced the Bush legal team’s arguments that a lawsuit by former C.I.A. detainees should be shut down based on the “state secrets” doctrine. It has also left the door open to resuming military commission trials.
And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in American custody, the Obama administration issued a statement thanking the British government “for its continued commitment to protect sensitive national security information.”
These and other signs suggest that the administration’s changes may turn out to be less sweeping than many had hoped or feared — prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.
In an interview, the White House counsel, Gregory B. Craig, asserted that the administration was not embracing Mr. Bush’s approach to the world. But Mr. Craig also said President Obama intended to avoid any “shoot from the hip” and “bumper sticker slogans” approaches to deciding what to do with the counterterrorism policies he inherited.
“We are charting a new way forward, taking into account both the security of the American people and the need to obey the rule of law,” Mr. Craig said. “That is a message we would give to the civil liberties people as well as to the Bush people.”
Within days of his inauguration, Mr. Obama thrilled civil liberties groups when he issued executive orders promising less secrecy, restricting C.I.A. interrogators to Army Field Manual techniques, shuttering the agency’s secret prisons, ordering the prison at Guantánamo Bay, Cuba, closed within a year and halting military commission trials.
But in more recent weeks, things have become murkier.
During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.
Ms. Kagan’s support for an elastic interpretation of the “battlefield” amplified remarks that Attorney General Eric H. Holder Jr. made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.
Moreover, the nominee for C.I.A. director, Leon E. Panetta, opened a loophole in Mr. Obama’s interrogation restrictions. At his hearing, Mr. Panetta said that if the approved techniques were “not sufficient” to get a detainee to divulge details he was suspected of knowing about an imminent attack, he would ask for “additional authority.”
To be sure, Mr. Panetta emphasized that the president could not bypass antitorture statutes, as Bush lawyers claimed. And he said that waterboarding — a technique that induces the sensation of drowning, and that the Bush administration said was lawful — is torture.
But Mr. Panetta also said the C.I.A. might continue its “extraordinary rendition” program, under which agents seize terrorism suspects and take them to other countries without extradition proceedings, in a more sweeping form than anticipated.
Before the Bush administration, the program primarily involved taking indicted suspects to their native countries for legal proceedings. While some detainees in the 1990s were allegedly abused after transfer, under Mr. Bush the program expanded and included transfers to third countries — some of which allegedly used torture — for interrogation, not trials.
Mr. Panetta said the agency is likely to continue to transfer detainees to third countries and would rely on diplomatic assurances of good treatment — the same safeguard the Bush administration used, and that critics say is ineffective.
Mr. Craig noted that while Mr. Obama decided “not to change the status quo immediately,” he created a task force to study “rendition policy and what makes sense consistent with our obligation to protect the country.”
He urged patience as the administration reviewed the programs it inherited from Mr. Bush. That process began after the election, Mr. Craig said, when military and C.I.A. leaders flew to Chicago for a lengthy briefing of Mr. Obama and his national security advisers. Mr. Obama then sent his advisers to C.I.A. headquarters to “find out the best case for continuing the practices that had been employed during the Bush administration.”
Civil liberties groups praise Mr. Obama’s early executive orders on national security, but say other signs are discouraging.
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For example, Mr. Obama’s Justice Department last week told an appeals court that the Bush administration was right to invoke “state secrets” to shut down a lawsuit by former C.I.A. detainees who say a Boeing subsidiary helped fly them to places where they were tortured.
Margaret Satterthwaite, a faculty director at the human rights center at the New York University law school, said, “It was literally just Bush redux — exactly the same legal arguments that we saw the Bush administration present to the court.”
Mr. Craig said Mr. Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance. Mr. Holder has also begun a review of every open Bush-era case involving state secrets, Mr. Craig said, so people should not read too much into one case.
“Every president in my lifetime has invoked the state-secrets privilege,” Mr. Craig said. “The notion that invoking it in that case somehow means we are signing onto the Bush approach to the world is just an erroneous assumption.”
Still, the decision caught the attention of a bipartisan group of lawmakers. Two days after the appeals court hearing, they filed legislation to bar using the state-secrets doctrine to shut down an entire case — as opposed to withholding particular evidence.
The administration has also put off taking a stand in several cases that present opportunities to embrace or renounce Bush-era policies, including the imprisonment without trial of an “enemy combatant” on domestic soil, Freedom of Information Act lawsuits seeking legal opinions about interrogation and surveillance, and an executive-privilege dispute over Congressional subpoenas of former White House aides to Mr. Bush over the firing of United States attorneys.
Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”
The administration’s recent policy moves have attracted praise from outspoken defenders of the Bush administration. Last Friday, The Wall Street Journal’s editorial page argued that “it seems that the Bush administration’s antiterror architecture is gaining new legitimacy” as Mr. Obama’s team embraces aspects of Mr. Bush’s counterterrorism approach.
Anthony D. Romero, executive director of the American Civil Liberties Union, said the sequence of “disappointing” recent events had heightened concerns that Mr. Obama might end up carrying forward “some of the most problematic policies of the Bush presidency.”
Mr. Obama has clashed with civil libertarians before. Last July, he voted to authorize eavesdropping on some phone calls and e-mail messages without a warrant. While the A.C.L.U. says the program is still unconstitutional, the legislation reduced legal concerns about one of the most controversial aspects of Mr. Bush’s antiterror strategy.
“We have been some of the most articulate and vociferous critics of the way the Bush administration handled things,” Mr. Craig said. “There has been a dramatic change of direction.”
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WASHINGTON — The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.
In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release.
“Having considered the matter, the government adheres to its previously articulated position,” wrote Michael F. Hertz, acting assistant attorney general.
The closely watched case is a habeas corpus lawsuit on behalf of several prisoners who have been indefinitely detained for years without trial. The detainees argue that they are not enemy combatants, and they want a judge to review the evidence against them and order the military to release them.
The Bush administration had argued that federal courts have no jurisdiction to hear such a case because the prisoners are noncitizens being held in the course of military operations outside the United States. The Obama team was required to take a stand on whether those arguments were correct because a federal district judge, John D. Bates, asked the new government whether it wanted to alter that position.
The Obama administration’s decision was generally expected among legal specialists. But it was a blow to human rights lawyers who have challenged the Bush administration’s policy of indefinitely detaining “enemy combatants” without trials.
The power of civilian federal judges to review individual decisions by the executive branch to hold a terrorism suspect as an enemy combatant was one of the most contentious legal issues surrounding the Bush administration. For years, President Bush’s legal team argued that federal judges had no authority under the Constitution to hear challenges by detainees being held at the military prison at Guantánamo Bay, Cuba, and elsewhere.
The Supreme Court rejected the Bush administration’s legal view for prisoners held at Guantánamo in landmark rulings in 2004 and 2006. But those rulings were based on the idea that the prison was on United States soil for constitutional purposes, based on the unique legal circumstances and history of the naval base.
Rights lawyers have been hoping that courts would extend those rulings to allow long-term detainees being held at United States military bases elsewhere in the world to sue for release, too. There are about 600 detainees at Bagram and several thousand in Iraq.
Jack Balkin, a Yale Law School professor, said it was too early to tell what the Obama administration would end up doing with the detainees at Bagram. He said some observers believed that the Obama team would end up making a major change in policy but simply needed more time to come up with it, while others believed that the administration had decided “to err on the side of doing things more like the Bush administration did, as opposed to really rethinking and reorienting everything” about the detention policies it inherited because it had too many other problems to deal with.
“It may take some time before we see exactly what is going on — whether this is just a transitory policy or whether this is really their policy: ‘No to Guantánamo, but we can just create Guantánamo in some other place,’ ” Mr. Balkin said.
After becoming president last month, Mr. Obama issued orders requiring strict adherence to antitorture rules and shuttering the Guantánamo prison within a year. He also ordered a review of whether conditions there meet the standards of humane treatment required by the Geneva Conventions, and a review of what could be done with each of the 245 detainees who remain at the prison.
On Friday, government officials said that a Pentagon official had completed the Guantánamo report, concluding that the site complies with the Geneva Conventions’ requirements for humane treatment — including procedures for force-feeding prisoners on hunger strike by strapping them down and inserting a nasal tube, a practice prisoners’ lawyers have denounced. The report does recommend that some prisoners be given greater human contact, however.
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Its the NY Slimes, so caveat lector:
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U.S. Will Give Qaeda Suspect a Civilian Trial
DAVID JOHNSTON and NEIL A. LEWIS
Published: February 26, 2009
WASHINGTON — The Justice Department, in an abrupt change in policy from the Bush administration, is preparing to bring terrorism-related charges against a man identified as an operative of Al Qaeda who has been held in a military brig for more than five years, government officials said Thursday.
The charges would move the case of the only enemy combatant to be held on American soil, Ali Saleh Kahlah al-Marri, into a civilian criminal court. The Bush administration had argued that he could be held indefinitely without being charged.
The decision also would allow the Obama administration to avoid taking a position for the time being on whether a president may detain legal residents indefinitely without trial.
The Justice Department faced a March 23 deadline to file a brief with the Supreme Court declaring whether it was continuing to hold to the Bush administration’s position that the government had the authority to detain legal residents like Mr. Marri indefinitely, without charges.
The decision to move Mr. Marri to a civilian court should give the Obama administration time to sidestep that issue for now as it sets about a large-scale review of detention policies that would affect those prisoners being held at Guantánamo Bay, Cuba, and those who may later be captured on suspicion of involvement with terrorism.
Mr. Marri was arrested in Peoria, Ill., in December 2001, and moved to the Navy brig in Charleston, S.C., in 2003. The Bush administration described him as a sleeper agent for Al Qaeda.
Mr. Marri is expected to be charged in Illinois as early as Friday with providing material support to terrorist groups. The Justice Department would then probably ask the Supreme Court to drop the case from its docket, saying that the issue was moot.
The decision to bring criminal charges against Mr. Marri was reported separately Thursday on the Web sites of The Washington Post and The New Yorker.
At least in part, the decision is a demonstration that Obama administration officials believe the nation’s civilian courts are capable of handling some terrorism cases.
Bush administration officials had argued that the president needed the authority to detain some terrorism suspects indefinitely because it was impracticable to prosecute many of them in civilian courts.
The issue as to whether there are some terrorism cases that cannot be successfully brought in a civilian criminal court is also at the heart of the debate about what to do with many of the 245 detainees still at Guantánamo.
Attorney General Eric H. Holder Jr. said Thursday that legal teams would reassess each of the inmates at Guantánamo to decide whether they should be prosecuted for criminal offenses or released.
“We need to look at these people again,” he said in an interview at his office at the Justice Department. “What kind of threats do they represent, if they pose any threats at all? We are determined to do this on an individualized basis.”
Mr. Holder said that some detainees were likely to be found to represent a low enough security risk to warrant their release, but that others would be likely to be found to have engaged in terrorist acts and would be prosecuted under a legal system that he said “must be seen as fair and must be fair.”
He said that department officials had not determined in what forum such prosecutions might take place, but that officials had not ruled out calling for legislation to create a new legal entity like a civilian national security court.
Several lawyers both inside and outside the academic world have said there was a need for such a new court that would allow the government to deal with the most troublesome group of terrorist suspects: those who are believed to be too dangerous to release but who could not be prosecuted effectively because it would require highly classified evidence.
Justice Department officials declined to discuss the developments on the Marri case. But after taking office, President Obama ordered a review of the situation and the decision to charge Mr. Marri in federal court reflected the results of that review, officials said.
Jonathan Hafetz of the American Civil Liberties Union, the lead lawyer in the case, said bringing charges would “definitely be a positive step in that the government will no longer be detaining Mr. Marri without charge and returning him to the civilian justice system.”
But Mr. Hafetz said the criminal charges should have been filed seven years ago, when Mr. Marri was first arrested in Peoria on suspicion of ties to Al Qaeda.
He said the Supreme Court should reject any government argument that the case is moot because the issue of whether the government may indefinitely detain legal residents or those in Guantánamo remains alive.
The case should go forward, Mr. Hafetz said, “to make clear, once and for all, that the indefinite military detention of legal residents or American citizens is illegal, and to prevent this from ever happening again.”
If the Supreme Court does not consider the case, it would leave in place a decision of the federal appeals court in Richmond, that upheld President George W. Bush’s authority to detain Mr. Marri indefinitely and without charging him.
In preparation for arguments before the Supreme Court, the Bush administration provided a sworn 2004 statement from Jeffrey N. Rapp, a military intelligence official. It said Mr. Marri had met with Osama bin Laden and Khalid Sheikh Mohammed, the chief plotter of the Sept. 11 attacks, in the summer of 2001.
“Al-Marri offered to be an Al Qaeda martyr or to do anything else that Al Qaeda requested,” Mr. Rapp said.
The Qaeda leaders told Mr. Marri, the statement said, to leave for the United States and to make sure he got there before Sept. 11.
John Schwartz contributed reporting from New York.
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http://www.msnbc.msn.com/id/14122554/
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http://www.msnbc.msn.com/id/14122554/
Ah yes, the joys of "gassing" or "correctional cocktails".
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The Obama Administration this week released its predecessor's post-9/11 legal memoranda in the name of "transparency," producing another round of feel-good Bush criticism. Anyone interested in President Obama's actual executive-power policies, however, should look at his position on warrantless wiretapping. Dick Cheney must be smiling.
APIn a federal lawsuit, the Obama legal team is arguing that judges lack the authority to enforce their own rulings in classified matters of national security. The standoff concerns the Oregon chapter of the Al-Haramain Islamic Foundation, a Saudi Arabian charity that was shut down in 2004 on evidence that it was financing al Qaeda. Al-Haramain sued the Bush Administration in 2005, claiming it had been illegally wiretapped.
At the heart of Al-Haramain's case is a classified document that it says proves that the alleged eavesdropping was not authorized under the Foreign Intelligence Surveillance Act, or FISA. That record was inadvertently disclosed after Al-Haramain was designated as a terrorist organization; the Bush Administration declared such documents state secrets after their existence became known.
In July, the Ninth Circuit Court of Appeals upheld the President's right to do so, which should have ended the matter. But the San Francisco panel also returned the case to the presiding district court judge, Vaughn Walker, ordering him to decide if FISA pre-empts the state secrets privilege. If he does, Al-Haramain would be allowed to use the document to establish the standing to litigate.
The Obama Justice Department has adopted a legal stance identical to, if not more aggressive than, the Bush version. It argues that the court-forced disclosure of the surveillance programs would cause "exceptional harm to national security" by exposing intelligence sources and methods. Last Friday the Ninth Circuit denied the latest emergency motion to dismiss, again kicking matters back to Judge Walker.
In court documents filed hours later, Justice argues that the decision to release classified information "is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power . . . to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access." The brief continues that federal judges are "ill-equipped to second-guess the Executive Branch."
That's about as pure an assertion of Presidential power as they come, and we're beginning to wonder if the White House has put David Addington, Mr. Cheney's chief legal aide, on retainer. The practical effect is to prevent the courts from reviewing the legality of the warrantless wiretapping program that Mr. Obama repeatedly claimed to find so heinous -- at least before taking office. Justice, by the way, is making the same state secrets argument in a separate lawsuit involving rendition and a Boeing subsidiary.
Hide the children, but we agree with Mr. Obama that the President has inherent Article II Constitutional powers that neither the judiciary nor statutes like FISA can impinge upon. The FISA appeals court said as much in a decision released in January, as did Attorney General Eric Holder during his confirmation hearings. It's reassuring to know the Administration is refusing to compromise core executive-branch prerogatives, especially on war powers.
Then again, we are relearning that the "Imperial Presidency" is only imperial when the President is a Republican. Democrats who spent years denouncing George Bush for "spying on Americans" and "illegal wiretaps" are now conspicuously silent. Yet these same liberals are going ballistic about the Bush-era legal memos released this week. Cognitive dissonance is the polite explanation, and we wouldn't be surprised if Mr. Holder released them precisely to distract liberal attention from the Al-Haramain case.
By the way, those Bush documents are Office of Legal Counsel memos, not policy directives. They were written in the immediate aftermath of a major terrorist attack, when more seemed possible, and it would have been irresponsible not to explore the outer limits of Presidential war powers in the event of a worst-case scenario. Based on what we are learning so far about Mr. Obama's policies, his Administration would do the same.
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European countries that have offered to help the Obama administration close the detention center at Guantánamo Bay, Cuba, have begun raising questions about the security risks and requirements if they accept prisoners described by the Bush administration as “the worst of the worst,” according to diplomats and other officials.
Guantánamo Bay Naval Base (Cuba)The concerns, and a deep suspicion of whether the American intelligence community will share full information on the prisoners, are likely to complicate the resettlement effort, which is critical to President Obama’s fulfilling his pledge to close Guantánamo within a year of his taking office.
The offers, from Spain, Portugal, Italy, France, Belgium, Switzerland and other countries, have been widely seen as efforts to win favor with the new administration by helping to close the camp, which was a contentious issue during the Bush years.
Still, with a first round of talks on the Guantánamo issues scheduled for Monday in Washington between Obama administration officials and a high-level delegation from the European Union, several European leaders have recently emphasized that they can make no firm commitments until they are given complete details on the prisoners.
“We’d have to study concrete cases,” María Teresa Fernández de la Vega Sanz, Spain’s deputy prime minister, said in an interview last week.
Secretary of State Hillary Rodham Clinton recently told reporters she was “quite encouraged at the positive, receptive responses we’ve been getting” to requests for help in accepting Guantánamo detainees.
But some European officials said the Obama administration had yet to detail what would be involved in resettling detainees and whether the United States would also open its doors to Guantánamo prisoners, which the Bush administration declined to do.
It is not clear exactly what conditions the Obama administration may wish to impose, what the detainees’ immigration status would be or whether any detainees released to Europe would be eligible for complete freedom. “We understand, you have a big problem,” said one European official who said he would speak only if not identified. “And we appreciate what President Obama has said about closing Guantánamo. But that doesn’t automatically mean putting all the remaining inmates on a plane and sending them to Europe.”
Obama administration officials say some 60 of the remaining 241 detainees, those who cannot be sent to their home countries for humanitarian or other reasons, could be resettled in Europe.
A senior State Department official conceded that there were some concerns in Europe about accepting Guantánamo detainees. But the official, speaking on the condition of anonymity because he was not designated to speak publicly on the issue, argued: “It is really just a small effort to help us deal with a legacy of the past. This is something we inherited, too.”
A senior French official said that France was “ready to help,” but that “Guantánamo is an American responsibility.”
“It’s not an absolute condition, but it would be easier if the U.S. administration is willing to take some detainees,” said the French official, who spoke on the condition of anonymity, as did several officials in other countries, to avoid antagonizing the Obama administration.
American officials conceded that talks with Europe were likely to be complex, but said they were working with intelligence agencies to provide as much information about detainees as possible. The senior State Department official said that the White House was considering whether any detainees might be admitted into the United States, in part because of the European focus on that issue.
The detainees most often mentioned for resettlement in the United States are 17 Uighurs, members of a Chinese Muslim minority, who American officials say cannot be returned to China for fear of mistreatment. The men have argued that they were allies of the United States who were wrongly rounded up in Afghanistan and Pakistan in 2001. After court battles, the Bush administration conceded that the men were not enemies of the United States.
Both American and European Union officials described the talks scheduled for Monday as a critical first step for any possible resettlement of Guantánamo detainees, saying that common European ground rules would ease the way toward decisions by individual countries.
Jacques Barrot, a European Union vice president who is to lead the European delegation, said there was an opportunity “to turn together a dark page” in the history of the fight against terrorism. But officials said the delegation was arriving with far more questions than answers.
Among the host of questions, European officials said, was whether the former prisoners would need to be monitored, whether they would have full travel rights in Europe and whether detainees might entangle their countries’ courts in years of legal battles by suing former American officials for their imprisonment and treatment.
Obama administration officials are working on a two-pronged plan to close the prison. They are analyzing how many detainees might be tried, most likely in the United States, and working toward transferring scores of the others.
The Bush administration often failed when it asked other countries to accept detainees, partly because those requests were usually accompanied by public comments defending the imprisonments by describing the detainees as dangerous terrorists.
The new administration is sending a different message. “We are less vested in trying to prove that these people are rightly held,” the senior State Department official said.
Given that stance by the Obama administration, some European officials say Washington’s focus on sending the detainees to Europe raises many questions.
Germany’s interior minister, Wolfgang Schäuble, has suggested publicly that if Guantánamo detainees pose no security risk, there is no reason the United States should not take them.
Pekka Lintu, Finland’s ambassador in Washington, said, “We should know what is being asked of us.”
William Glaberson reported from New York, and Steven Erlanger from Paris. Reporting was contributed by Victoria Burnett from Madrid, Judy Dempsey from Berlin, Margot Williams from New York and Mark Landler from Washington.
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Spanish Court Weighs Inquiry on Torture for 6 Bush-Era Officials
comments
MARLISE SIMONS
Published: March 28, 2009
LONDON — A Spanish court has taken the first steps toward opening a criminal investigation into allegations that six former high-level Bush administration officials violated international law by providing the legal framework to justify the torture of prisoners at Guantánamo Bay, Cuba, an official close to the case said.
The case, against former Attorney General Alberto R. Gonzales and others, was sent to the prosecutor’s office for review by Baltasar Garzón, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet. The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants.
The move represents a step toward ascertaining the legal accountability of top Bush administration officials for allegations of torture and mistreatment of prisoners in the campaign against terrorism. But some American experts said that even if warrants were issued their significance could be more symbolic than practical, and that it was a near certainty that the warrants would not lead to arrests if the officials did not leave the United States.
The complaint under review also names John C. Yoo, the former Justice Department lawyer who wrote secret legal opinions saying the president had the authority to circumvent the Geneva Conventions, and Douglas J. Feith, the former under secretary of defense for policy.
Most of the officials cited in the complaint declined to comment on the allegations or could not be reached on Saturday. However their defenders have said their legal analyses and policy work on interrogation practices, conducted under great pressure after the 2001 terrorist attacks, are now being unfairly second-guessed after many years without a terrorist attack on the United States.
The court case was not entirely unexpected, as several human rights groups have been asking judges in different countries to indict Bush administration officials. One group, the Center for Constitutional Rights, had asked a German prosecutor for such an indictment, but the prosecutor declined.
Judge Garzón, however, has built an international reputation by bringing high-profile cases against human rights violators as well as international terrorist networks like Al Qaeda. The arrest warrant for General Pinochet led to his detention in Britain, although he never faced a trial. The judge has also been outspoken about the treatment of detainees at Guantánamo Bay.
Spain can claim jurisdiction in the case because five citizens or residents of Spain who were prisoners at Guantánamo Bay have said they were tortured there. The five had been indicted in Spain, but their cases were dismissed after the Spanish Supreme Court ruled that evidence obtained under torture was not admissible.
The 98-page complaint, a copy of which was obtained by The New York Times, is based on the Geneva Conventions and the 1984 Convention Against Torture, which is binding on 145 countries, including Spain and the United States. Countries that are party to the torture convention have the authority to investigate torture cases, especially when a citizen has been abused.
The complaint was prepared by Spanish lawyers, with help from experts in the United States and Europe, and filed by a Spanish human rights group, the Association for the Dignity of Prisoners.
The National Court in Madrid, which specializes in international crimes, assigned the case to Judge Garzón. His acceptance of the case and referral of it to the prosecutor made it likely that a criminal investigation would follow, the official said.
Even so, arrest warrants, if they are issued, would still be months away.
Gonzalo Boye, the Madrid lawyer who filed the complaint, said that the six Americans cited had had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.
Secret memorandums by Mr. Yoo and other top administration lawyers helped clear the way for aggressive policies like waterboarding and other harsh interrogation techniques, which the C.I.A. director, the attorney general and other American officials have said amount to torture.
The other Americans named in the complaint were William J. Haynes II, former general counsel for the Department of Defense; Jay S. Bybee, Mr. Yoo’s former boss at the Justice Department’s Office of Legal Counsel; and David S. Addington, who was the chief of staff and legal adviser to Vice President Dick Cheney.
Mr. Yoo declined to comment on Saturday, saying that he had not seen or heard of the petition.
Mr. Feith, who was the top policy official at the Pentagon when the prison at Guantánamo was established, said he did not make the decision on interrogation methods and was baffled by the allegations. “I didn’t even argue for the thing I understand they’re objecting to,” he said.
But Mr. Boye said that lawyers should be held accountable for the effects of their work. Noting that the association he represents includes many lawyers, he said: “This is a case from lawyers against lawyers. Our profession does not allow us to misuse our legal knowledge to create a pseudo-legal frame to justify, stimulate and cover up torture.”
Prosecutions and convictions under the Torture Convention have been rare.
Reed Brody, a lawyer at Human Rights Watch who has specialized in this issue, said that even though torture was widely practiced, there were numerous obstacles, including “a lack of political will, the problem of gathering evidence in a foreign country and the failure of countries to pass the necessary laws.”
This year for the first time, the United States used a law that allows it to prosecute torture in other countries. On Jan. 10, a federal court in Miami sentenced Chuckie Taylor, the son of the former Liberian president, to 97 years in a federal prison for torture, even though the crimes were committed in Liberia.
Last October, when the Miami court handed down the conviction, Attorney General Michael B. Mukasey applauded the ruling and said: “This is the first case in the United States to charge an individual with criminal torture. I hope this case will serve as a model to future prosecutions of this type.”
The United States, however, would be expected to ignore an extradition request for former officials, although other investigations within the United States have been proposed. Calls for the Justice Department to open a criminal investigation have so far been resisted by the Obama administration, but for more than four years, the Justice Department ethics office has been conducting its own investigation into the work of Mr. Yoo and some of his colleagues.
While the officials named in the complaint have not addressed these specific accusations, Mr. Yoo defended his work in an opinion column in The Wall Street Journal on March 7, warning that the Obama administration risked harming national security if it punished lawyers like himself.
“If the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today’s intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future,” Mr. Yoo wrote.
Scott Shane and Eric Schmitt contributed reporting from Washington.
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Breaking News Alert
The New York Times
Thursday, April 2, 2009 -- 12:25 PM ET
-----
Detention at Afghan Base Is Subject to U.S. Courts
A federal judge ruled on Thursday that some prisoners at a
military air base in Afghanistan can use U.S. civilian courts
to challenge their detention.
Read More:
http://www.nytimes.com/?emc=na
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Rachel Maddow gleefully put on her show (anyone who will disrepute Bush and or Rep in general) a former Gitmo soldier who stated he was ashamed of the abuse he witnessed of prisoners. Abuse which according to his account included someone punching one of the prisoners in the face and another time a prisoner thinking he was going to be executed when he was asked to kneel (obviously because in his country this would have meant he was going to have his head chopped off).
Of course such incredible abuse and along with a few seconds or minutes of waterboarding places Bush/Cheney/Rumsfiled up there with Stalin, Hitler, Saddam and all the rest of the butchers in modern history.
I am not ashamed of W et al, just of the left that mocks them for political reasons.
It sounded to me that any high school football player receives more abuse than any of these prisoners; at least from this eye witness account.
"Torture" - what a joke!
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Guantanamo: 99% of the abuse is of the prisoners against the guards while 99% of the stories are about alleged abuse against the prisoners. Seems to me our concerns are misplaced.
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Guantanamo: 99% of the abuse is of the prisoners against the guards ...
Ahhh Doug, care to document that statement?
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"Guantanamo: 99% of the abuse is of the prisoners against the guards ..."
I think I was low on that estimate. It is based on my opinion from all that I have read and heard from first hand accounts. Here is one report, though I was unable to find the most recent author that prompted me to post that comment. Jdn, please also take into account my bias in not believing most allegations the captured terrorists make against American serviceman.
http://law.shu.edu/news/guantanamo_third_report_7_11_06.pdf
General Hood: It is not unusual for guards to have feces, and urine hurled at them. Spitting is the most common. Threats to their families back home may be the most serious.
I'm happy to look at other views. Please post any reports you know indicating the detainees are respectful and well-behaved, lol.
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Doug, did you read the entire report that you posted as your reference? And look at it's conclusions?
It basically repudiates the government's position.
"The data shows, remarkably, that the detainees are comparatively cowed and unthreatening to their guards but pose a substantial danger to themselves."
As for being "respectful and well-behaved" well, I doubt if I would be either if I was being held for years away from my family and homeland without any
charges or proof of wrongdoing; being denied even basic rights.
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Ever been spit on? I had an inmate spit a mouthful of bloody saliva into my face/eyes and had to spend a year going through HIV and Hep testing.
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http://www.weeklystandard.com/weblogs/TWSFP/2009/02/gitmo_may_be_one_of_the_toughe.asp
Gitmo May Be One of the Toughest Prisons on the Planet--for the Guards
The Washington Post story (linked below) declares that Guantanamo is "one of the toughest prisons on the planet."
Last May, in an attempt to put to rest some of this nonsense about Gitmo, Rear Admiral Mark Buzby, then commander of Joint Task for Guantanamo, explained the difference between "the Guantanamo that exists in ... pop culture and the media and most people's minds" and the "Guantanamo that exists here, the one that I see every day".
Our Camp 5 and Camp 6, which is where 75 percent of our population -- detainee population lives, those two buildings are actually models of a facility in Indiana -- a prison in Indiana and a prison in Michigan that were brought down here and built, so that the very same conditions that U.S. Bureau of Prisons prisoners live in are what our detainees live in, in terms of their place of incarceration.
Every detainee, no matter what their compliancy status is -- in other words, how well they behave and everything else -- they all get at least two hours of outdoor recreation with other people every day, every single day. They also get a shower every single day, which is actually more than the Bureau of Prisons offers their high-security folks. For those other 25 percent that are in highly compliant status -- in other words, they behave very well and follow the camp rules -- they are in a place called Camp 4, which is a very open-air, communal sort of facility, where they live in groups of six in a bunk room, if you will. And they have access to recreation about 22 hours a day, including group recreation and group prayer and all that sort of thing.
So to say that our conditions are especially arduous or different than ... what a normal prisoner might find in the Bureau of Prisons systems ... I think is probably twisting the truth quite a bit.
So life in Gitmo doesn't seem too hard for detainees, especially considering that most of them are accused of fighting with al Qaeda and the Taliban.
Life for the guards, however, is not so easy. See this detainee activity report from last April. Just a few statistics on what the Gitmo guards endured in 2007:
135 physical assaults
132 assaults with bodily fluids
1,734 incidents of failure to comply with orders
That means there was about one assault against the guards for every detainee held in Gitmo. Contrast that with New York state prisons. Erik Kriss, a spokesman for New York's Department of Correctional Services, tells me that in 2008 the rate of inmate assaults against staff throughout the state was 9 for every 1,000 inmates. So the assault rate is 100 times higher at Gitmo than the New York prisons.
Posted by John McCormack on February 23, 2009 04:30 P
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JDN:
Is that documentation sufficient for you to acknwledge that a fair case can be made?
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Battlefield Injustice
By INVESTOR'S BUSINESS DAILY | Posted Friday, April 03, 2009 4:20 PM PT
War On Terror: A federal court says that even those held in Afghanistan must also be tried in American courts. Why not? After all, if there is no global war on terror, how can anybody be prisoners of that war?
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Read More: Global War On Terror | Judges & Courts
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Although the "war on terror" no longer exists, we still have the "overseas contingency operation" in Afghanistan. They are still shooting at us and we are still shooting at them.
We are still capturing and holding what used to be called enemy combatants or even that more archaic term — prisoners of war.
Now a federal judge has ruled that where detainees are captured or held, not what they were trying to do, namely kill Americans, is paramount.
Whatever the proper term for them is now, U.S. District Judge John Bates decided Thursday that those not captured in Afghanistan but being held there are endowed, like their Gitmo counterparts, with the same inalienable rights as the American citizens they were sworn to kill.
That includes the right to challenge their incarceration in American courts.
After the Supreme Court ruled last year that Guantanamo detainees had the legal right to challenge their detentions in U.S. courts, four detainees captured outside Afghanistan being held at Bagram Air Force Base in Afghanistan thought they had a get-out-of-jail-free card. After that ruling, petitions were filed on their behalf in a U.S. district court.
The Obama administration took the position that Bagram Air Force Base, where some 600 jihadists are currently held, differed from Gitmo in that Bagram is located in an active war zone even if Gitmo is technically U.S. territory where the U.S. Constitution holds sway. That was when the war on terror was still called a war.
Judge Bates rejected this when he ruled that non-Afghan detainees captured outside that country and moved to Bagram should also have access to U.S. courts to prevent the U.S. from being able to "move detainees physically beyond the reach of the Constitution and detain them indefinitely."
Sen. Lindsey Graham, R-S.C., rightly called the decision "dangerous and naive," and said it puts troops in harm's way for judges to micromanage distant wars.
"Using this logic, in World War II it would not have allowed us to capture Nazi operatives anywhere but in Germany," Graham said.
Ironically, at a time when foreign laws and treaties seem to be finding their way into U.S. court rulings, both the Supreme Court ruling and Judge Bates' ruling seem to fly in the face of Article 84 of the Geneva Conventions, which says prisoners of any stripe captured in a war shall not get tried in civil courts.
In short, we're in violation of the Geneva Conventions here.
Bates' ruling affects only three of the four who challenged their detention at Bagram. He reserved judgment on Haji Wazir because he is an Afghan citizen.
The other three are from outside Afghanistan. Fadi al Magaleh and Amin al Bakri are from Yemen. Redha al-Najar is from Tunisia. All say they were captured outside Afghanistan.
Bates argued that it is "one thing to detain those captured on a surrounding battlefield at a place like Bagram" but that it "is quite another to apprehend people in foreign countries — far from any Afghan battlefield — and then bring them to a theatre of war, where the Constitution arguably may not reach."
But how can there be a battlefield if there is no war?
"Overseas contingency operations," like war, are hell. They are not crime scenes where U.S. troops should be required to read their opponents their rights, take witness testimony, gather evidence and remember where they were on a particular afternoon.
We would ask, what part of "global war on terror" does Judge Bates not understand?
The entire globe is an active theater of war, and where prisoners are captured or held makes no difference. But this is the nonsense you get when an administration plays word games after actively opposing the military tribunals where these matters should be settled.
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Posted by: Crafty_Dog
JDN:
Is that documentation sufficient for you to acknwledge that a fair case can be made?
Actually "No". :-D
"Life for the guards is not so easy" I don't doubt that nor have I ever said it was "easy".
But then life for the detainees is not all "easy" either...
Doug's own support reference indicated that life for the detainee is quite the opposite.
The detainee is the one who is being abused. Abuse of the detainees has been well documented and frankly is
much worse than the detainees limited abuse of the guards.
However, my objection was Doug's quote;
Guantanamo: 99% of the abuse is of the prisoners against the guards while 99% of the stories are about alleged abuse against the prisoners. Seems to me our concerns are misplaced.
Doug then in another post then went on further to say that he thought his estimate was "low", i.e. the abuse by the prisoners against the guards actually exceeds 99% of the abuses committed.
:?
Let's just say I think both sides are committing abuse and that 99% applied to either side is wrong.
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"Both sides are committing abuse". Really? Did an MP accidentally brush against a qu'ran? No aromatherapy and pilates classes? The halal meals didn't offer free range chicken?
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JDN, I also made clear in the second post that I was only posting my opinion, which should have clear to you on the first. I'll expand on my opinion, but it is only "wrong" if you prove it is not my opinion, lol.
In my opinion, about 99% of America's service men and women are good people and they by and large enlist for the right reasons and serve honorable. Along the way, some are provoked into or choose bad behaviors at times, but most of those stories turn out to be stories. What did John Kerry say, tearing ears off and burning villages. I look at all those stories skeptically although once in a while one turns out to be true.
On the 'other side', you have terrorists who are on a mission to terrorize the western world, spread jihad and kill infidels. Among the detainees, you may have an innocent bystander, that happens in war. In my opinion, I doubt that more than 1% of the detainees did not have some affiliation with the mission of terror I just described. We didn't detain some lady from the grocery store for looking Arab or Muslim ; these were people captured in combat and are held for national security reasons.
Once captured, the detainees are still on a mission and discrediting the United States is part of it, whether to bait a guard into unsavory behavior or just to invent the story for the international inquisitors and journalists.
"Doug's reference" was the quote I took from a general telling how frequent these abhorrent abuses against the guards are. The link was provided so the reader could trace the quote. That you found something else interesting in that report is fine with me, but it is now 'your reference'. I have no idea how something else later in the report would change the General's quote unless he later retracted what he said so clearly previously. He didn't.
I've disclosed my bias ad nauseum on this - I'm pulling for western civilization and safe neighborhoods - and I have no curiosity whatsoever why you or others see some kind of moral equivalence between American servicemen and captured terrorists, as if this is USA playing Jihad in a quiddich contest rather than America fighting off suicide bombers and planners to disrupt their agenda of carnage in what used to be called the global war on terror.
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Doug, I absolutely agree with your statement,
"In my opinion, about 99% of America's service men and women are good people and they by and large enlist for the right reasons and serve honorable."
However your original post to which I disagreed stated,
"Guantanamo: 99% of the abuse is of the prisoners against the guards while 99% of the stories are about alleged abuse against the prisoners."
The two statements are not congruous.
As for "your" source, it seems reasonable to me that if one is to quote a few sentences, the entire body of work should be examined. In this instance, the
study documented numerous examples of abuse by guards against detainees and repudiated the general's biased comments. Imagine if I quoted a few "make nice"
passages out of the qu'ran? I bet GM would be all over me! :evil:
I too am "pulling for western civilization" however I don't believe the solution is throw away all that we believe in and that has made our country great. Or
to deny that abuse of detainees has taken place; that is simply wrong.
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It came as good news yesterday from Attorney General Eric Holder that the government isn't going to prosecute any Central Intelligence Agency officials who participated in the government's waterboarding interrogations. Mr. Holder cited the simple logic that it would be unfair to prosecute these officials for acts ruled legal at the time by the Justice Department. Mr. Holder also pointedly said the U.S would defend the CIA interrogators against attempted prosecutions from overseas.
Mr. Holder's reference to out-of-area prosecutions is surely a reference to Spain, the source of yesterday's second piece of good news on the antiterror front. Spain's attorney general, Candido Conde-Pumpido, said his office would not support Judge Baltasar Garzon's outrageous effort to prosecute six Bush Administration officials for their role in the U.S. antiterror effort. Spain's AG said any such prosecution would turn his nation's National Court "into a plaything" for politics. Judge Garzon gets the final call, but the odds are strong this judicial overreach is ending.
What remains to be seen is whether the American left, maddened by these two decisions, will now demand that Congress gin up a "Truth Commission" to dissect the U.S. war on terror during the Bush years. This would hamstring even a gentler war on terror by the Obama team, as no official would risk being hung out to dry later by Congressional Democrats or the partisans they appoint to a commission. For elaboration on that we recommend the piece opposite by former Attorney General Michael Mukasey and former CIA director Michael Hayden.
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By MICHAEL HAYDEN and MICHAEL B. MUKASEY
The Obama administration has declassified and released opinions of the Justice Department's Office of Legal Counsel (OLC) given in 2005 and earlier that analyze the legality of interrogation techniques authorized for use by the CIA. Those techniques were applied only when expressly permitted by the director, and are described in these opinions in detail, along with their limits and the safeguards applied to them.
AP
9/11 mastermind Khalid Sheikh Mohammed.
The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.
Proponents of the release have argued that the techniques have been abandoned and thus there is no point in keeping them secret any longer; that they were in any event ineffective; that their disclosure was somehow legally compelled; and that they cost us more in the coin of world opinion than they were worth. None of these claims survives scrutiny.
Soon after he was sworn in, President Barack Obama signed an executive order that suspended use of these techniques and confined not only the military but all U.S. agencies -- including the CIA -- to the interrogation limits set in the Army Field Manual. This suspension was accompanied by a commitment to further study the interrogation program, and government personnel were cautioned that they could no longer rely on earlier opinions of the OLC.
Although evidence shows that the Army Field Manual, which is available online, is already used by al Qaeda for training purposes, it was certainly the president's right to suspend use of any technique. However, public disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them, and can supplement their training accordingly and thus diminish the effectiveness of these techniques as they have the ones in the Army Field Manual.
Moreover, disclosure of the details of the program pre-empts the study of the president's task force and assures that the suspension imposed by the president's executive order is effectively permanent. There would be little point in the president authorizing measures whose nature and precise limits have already been disclosed in detail to those whose resolve we hope to overcome. This conflicts with the sworn promise of the current director of the CIA, Leon Panetta, who testified in aid of securing Senate confirmation that if he thought he needed additional authority to conduct interrogation to get necessary information, he would seek it from the president. By allowing this disclosure, President Obama has tied not only his own hands but also the hands of any future administration faced with the prospect of attack.
Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption. It will also incur the utter contempt of our enemies. Somehow, it seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.
Which brings us to the next of the justifications for disclosing and thus abandoning these measures: that they don't work anyway, and that those who are subjected to them will simply make up information in order to end their ordeal. This ignorant view of how interrogations are conducted is belied by both experience and common sense. If coercive interrogation had been administered to obtain confessions, one might understand the argument. Khalid Sheikh Mohammed (KSM), who organized the Sept. 11, 2001 attacks, among others, and who has boasted of having beheaded Daniel Pearl, could eventually have felt pressed to provide a false confession. But confessions aren't the point. Intelligence is. Interrogation is conducted by using such obvious approaches as asking questions whose correct answers are already known and only when truthful information is provided proceeding to what may not be known. Moreover, intelligence can be verified, correlated and used to get information from other detainees, and has been; none of this information is used in isolation.
The terrorist Abu Zubaydah (sometimes derided as a low-level operative of questionable reliability, but who was in fact close to KSM and other senior al Qaeda leaders) disclosed some information voluntarily. But he was coerced into disclosing information that led to the capture of Ramzi bin al Shibh, another of the planners of Sept. 11, who in turn disclosed information which -- when combined with what was learned from Abu Zubaydah -- helped lead to the capture of KSM and other senior terrorists, and the disruption of follow-on plots aimed at both Europe and the U.S. Details of these successes, and the methods used to obtain them, were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006. Any protestation of ignorance of those details, particularly by members of those committees, is pretense.
The techniques themselves were used selectively against only a small number of hard-core prisoners who successfully resisted other forms of interrogation, and then only with the explicit authorization of the director of the CIA. Of the thousands of unlawful combatants captured by the U.S., fewer than 100 were detained and questioned in the CIA program. Of those, fewer than one-third were subjected to any of the techniques discussed in these opinions. As already disclosed by Director Hayden, as late as 2006, even with the growing success of other intelligence tools, fully half of the government's knowledge about the structure and activities of al Qaeda came from those interrogations.
Nor was there any legal reason compelling such disclosure. To be sure, the American Civil Liberties Union has sued under the Freedom of Information Act to obtain copies of these and other memoranda, but the government until now has successfully resisted such lawsuits. Even when the government disclosed that three members of al Qaeda had been subjected to waterboarding but that the technique was no longer part of the CIA interrogation program, the court sustained the government's argument that the precise details of how it was done, including limits and safeguards, could remain classified against the possibility that some future president may authorize its use. Therefore, notwithstanding the suggestion that disclosure was somehow legally compelled, there was no legal impediment to the Justice Department making the same argument even with respect to any techniques that remained in the CIA program until last January.
There is something of the self-fulfilling prophecy in the claim that our interrogation of some unlawful combatants beyond the limits set in the Army Field Manual has disgraced us before the world. Such a claim often conflates interrogation with the sadism engaged in by some soldiers at Abu Ghraib, an incident that had nothing whatever to do with intelligence gathering. The limits of the Army Field Manual are entirely appropriate for young soldiers, for the conditions in which they operate, for the detainees they routinely question, and for the kinds of tactically relevant information they pursue. Those limits are not appropriate, however, for more experienced people in controlled circumstances with high-value detainees. Indeed, the Army Field Manual was created with awareness that there was an alternative protocol for high-value detainees.
In addition, there were those who believed that the U.S. deserved what it got on Sept. 11, 2001. Such people, and many who purport to speak for world opinion, were resourceful both before and after the Sept. 11 attacks in crafting reasons to resent America's role as a superpower. Recall also that the first World Trade Center bombing in 1993, the attacks on our embassies in Kenya and Tanzania, the punctiliously correct trials of defendants in connection with those incidents, and the bombing of the USS Cole took place long before the advent of CIA interrogations, the invasion of Saddam Hussein's Iraq, or the many other purported grievances asserted over the past eight years.
The effect of this disclosure on the morale and effectiveness of many in the intelligence community is not hard to predict. Those charged with the responsibility of gathering potentially lifesaving information from unwilling captives are now told essentially that any legal opinion they get as to the lawfulness of their activity is only as durable as political fashion permits. Even with a seemingly binding opinion in hand, which future CIA operations personnel would take the risk? There would be no wink, no nod, no handshake that would convince them that legal guidance is durable. Any president who wants to apply such techniques without such a binding and durable legal opinion had better be prepared to apply them himself.
Beyond that, anyone in government who seeks an opinion from the OLC as to the propriety of any action, or who authors an opinion for the OLC, is on notice henceforth that such a request for advice, and the advice itself, is now more likely than before to be subject after the fact to public and partisan criticism. It is hard to see how that will promote candor either from those who should be encouraged to ask for advice before they act, or from those who must give it.
In his book "The Terror Presidency," Jack Goldsmith describes the phenomenon we are now experiencing, and its inevitable effect, referring to what he calls "cycles of timidity and aggression" that have weakened intelligence gathering in the past. Politicians pressure the intelligence community to push to the legal limit, and then cast accusations when aggressiveness goes out of style, thereby encouraging risk aversion, and then, as occurred in the wake of 9/11, criticizing the intelligence community for feckless timidity. He calls these cycles "a terrible problem for our national security." Indeed they are, and the precipitous release of these OLC opinions simply makes the problem worse.
Gen. Hayden was director of the Central Intelligence Agency from 2006 to 2009. Mr. Mukasey was attorney general of the United States from 2007 to 2009.
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Helen Thomas: Why is the president blocking habeas corpus from prisoners at Bagram? I thought he taught constitutional law. And these prisoners have been there . . .
Robert Gibbs: You're incorrect that he taught on constitutional law.
You know we live in interesting times when Helen Thomas is going after Barack Obama. Miss Thomas was asking the White House press secretary last week why detainees at Bagram Air Base in Afghanistan should not have the same right to challenge their detention in federal court that last year's Supreme Court ruling in Boumediene v. Bush gave to Guantanamo's detainees. All Mr. Gibbs could do was interrupt and correct the doyenne of the White House press corps about Mr. Obama's class as a law professor.
The precipitate cause of Miss Thomas's question was a ruling earlier this month by federal district Judge John Bates. Judge Bates says that last year's Supreme Court ruling on Gitmo does apply to Bagram. The administration has appealed, saying that giving detainees such rights could lead to protracted litigation, disclosure of intelligence secrets and harm to American security. The wonderful irony is that, at least on the logic, everyone is right.
Start with Judge Bates. The judge is surely correct when he says the detainees brought in to Bagram from outside the country are "virtually identical" to those held at Guantanamo. He's also correct in asserting that the Supreme Court ruled the way it did out of concern "that the Executive could move detainees physically beyond the reach of the Constitution and detain an individual" at Bagram.
But President Obama's appeal is also right. Though most headlines from the past few days have focused on the release of Justice Department memos on CIA interrogation, the president's embrace of the Bush position on Bagram is far more striking. Mr. Gibbs became tongue-tied while trying to explain that stand. But the Justice Department brief is absolutely correct in asserting that "there are many legitimate reasons, having nothing to do with the intent to evade judicial review, why the military might detain an individual in Bagram."
Finally, critics like Miss Thomas also have it right. In a long and thorough post called "Obama and habeas corpus -- then and now," Glenn Greenwald, a former constitutional law litigator who blogs at Salon.com, exposes the gaping contradiction between past Obama rhetoric on the inviolability of the right to habeas corpus and the new Obama reality. He also quotes Mr. Obama's reaction to Boumediene as a "rejection of the Bush administration's attempt to create a legal black hole at Guantanamo."
Manifestly, Mr. Greenwald believes that "black hole" is simply moving to Bagram. "I wish I could be writing paeans celebrating the restoration of the Constitution and the rule of law," he writes. "But these actions -- these contradictions between what he said and what he is doing, the embrace of the very powers that caused so much anger towards Bush/Cheney -- are so blatant, so transparent, so extreme, that the only way to avoid noticing them is to purposely shut your eyes as tightly as possible and resolve that you don't want to see it, or that you're so convinced of his intrinsic Goodness that you'll just believe that even when it seems like he's doing bad things, he must really be doing them for the Good."
How can all these people be right? The answer is that each is responding to a different contradiction raised by the president's Guantanamo policy. In an impassioned 2006 speech on the Senate floor on the right to habeas corpus, Mr. Obama declared, "I do not want to hear that this is a new world and we face a new kind of enemy." During the campaign, his language implied that all we needed to settle the detainee issue once and for all was to shut down Gitmo.
As president, he is finding out that this very much is a new world, that we do face a new enemy, and that the problems posed by Guantanamo have less to do with the place than the people we detain there.
Put simply, the U.S. needs the ability to detain people we know to be dangerous without the evidence that might stand up in a federal criminal court. Because we can't say when this war will end, moreover, we also need to be able to detain them indefinitely. This is what makes the war on terror different, and why our policies will never fit neatly into a legal approach that is either purely criminal or purely military.
The good news is that Mr. Obama is smart enough to know that the relative obscurity of Bagram, not to mention the approval he has received on Guantanamo, enables him to do the right thing here without, as Mr. Greenwald notes, worrying too much that he will be called to account for a substantive about-face.
The bad news is that we seem to have reached the point where our best hope for sensible war policy now depends largely on presidential cynicism.
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Yemen Dispute Slows Closing of Guantánamo
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LinkedinDiggFacebookMixxMySpaceYahoo! BuzzPermalinkBy WILLIAM GLABERSON and ROBERT F. WORTH
Published: April 23, 2009
The Obama administration’s effort to return the largest group of Guantánamo Bay detainees to Yemen, their home country, has stalled, creating a major new hurdle for the president’s plan to close the prison camp in Cuba by next January, American and Yemeni officials say.
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Canada Told to Request the Return of a Citizen at Guantánamo (April 24, 2009) “We’re at a complete impasse,” said one American official who is involved in the issue but was speaking without authorization and so requested anonymity. “I don’t know that there’s a viable Plan B.”
The Yemeni government has asked Washington to return its detainees and has said that it would need substantial aid to rehabilitate the men. But the Obama administration is increasingly skeptical of Yemen’s ability to provide adequate rehabilitation and security to supervise returned prisoners. In addition, American officials are wary of sending detainees to Yemen because of growing indications of activity by Al Qaeda there.
The developments are significant for the Obama administration because the 97 Yemeni detainees make up more than 40 percent of the remaining 241 prisoners at Guantánamo Bay. The question of what to do with them “is integral to the process of closing Guantánamo,” said Ken Gude, an associate director at the Center for American Progress who has written about closing the prison camp.
The standoff over the Yemeni detainees comes on top of other difficulties that have emerged since President Obama announced his intention to close the prison that has drawn international criticism for years.
Some Republicans in Congress have mounted stiff resistance to closing Guantánamo, and officials in some American communities, fearing that terrorism suspects could be tried or held in their courts or prisons, said they would fight any such plans. Also, while some European governments have promised to resettle detainees, specific agreements have been slow in coming.
The Yemenis not only are the biggest group of detainees, but also are widely seen as the most difficult to transfer out of Guantánamo. Other countries are wary of many of the Yemeni detainees because jihadist groups have long had deep roots in Yemen, one of the poorest countries in the Arab world and the homeland of Osama bin Laden’s father. If the Yemenis are not sent home, there may be few other options for many of the 97 men, detainees’ lawyers and human rights groups say.
Still, Muhi al-Deen al-Dhabi, Yemen’s deputy foreign affairs minister, said in an interview that the United States was now trying to persuade other countries to accept Yemeni detainees and appeared to have rejected Yemen’s request to have its citizens at Guantánamo returned.
“If the United States is going to transfer the Yemeni detainees to a third party, we cannot stop that,” Mr. Dhabi said.
Yemen’s president, Ali Abdullah Saleh, met last month with Mr. Obama’s deputy national security adviser, John O. Brennan. The State Department said Mr. Brennan raised “the U.S. government’s concerns about the direct return of detainees to Yemen.”
The Bush administration also failed to reach a deal with President Saleh, but the Obama administration had hoped to get increased cooperation from Yemen, which critics say has a history of coddling Islamic extremists and releasing convicted terrorists. Complicating the task is the fact that security in Yemen has been deteriorating for more than a year, with several terrorist attacks, including a suicide bombing outside the American Embassy compound in September that killed 13 people.
Among the 97 Yemeni detainees are some men who appear to be candidates for transfer to other countries, including about a dozen with ties to Saudi Arabia. American officials have described some of the Yemenis as jihadist foot soldiers and have suggested that a few, like a student captured while visiting other Yemenis in Pakistan, may simply have been at the wrong place at the wrong time.
Perhaps a dozen or more Yemeni detainees could face prosecution in the United States, including Ramzi bin al-Shibh, who was charged in the Bush administration’s military commission system with being a coordinator of the Sept. 11, 2001, attacks.
But with just nine months remaining before Mr. Obama’s January 2010 deadline for closing the prison, some lawyers for the men say they are becoming convinced that there may be no viable strategy to relocate them.
David H. Remes, a lawyer for 16 Yemeni detainees, said it appeared that many of the men might remain in American custody. “Unless President Obama reconsiders his decision to close Guantánamo,” Mr. Remes said, “the Yemeni detainees would have to be brought to the U.S. and put in some sort of prison.”
Although administration officials would not comment on the talks with Yemen, a senior administration official said the government was “working to ensure that any detainee who is transferred abroad will be appropriately monitored, rehabilitated, and assimilated back into their society.”
The complexities of the issues surrounding the detainees are a reflection of Yemen’s tangled domestic and international problems. It is a state that often appears on the verge of chaos. A weak central government is fighting a persistent insurgency in the north, restive separatists in the south and a growing Qaeda presence.
Some Yemeni officials say President Saleh, a wily former army officer, has used the internal threats — and perhaps even nurtured them — to press the United States and Yemen’s neighbor Saudi Arabia for more aid.
As a result, people who have discussed the detainee issues with Yemeni officials say the Obama administration’s frustration with the Yemeni government may be well founded.
Mr. Saleh has publicly demanded the return of the detainees. But Joanne Mariner, director of Human Rights Watch’s terrorism and counterterrorism program, said that after meeting top Yemeni officials, it appeared that the Saleh government seemed to see the detainees as a potential source of security and financial problems.
“Politically, they need to give the impression that they’re fighting to get their people back,” Ms. Mariner said, but she added that it was not clear whether the Yemeni officials were working to meet any American requirements.
One senior Yemeni official, she said, seemed to suggest that Yemen would require a huge payment from the American government to resettle the detainees. A proper rehabilitation program, the official claimed, could cost as much as $1 million for each detainee, totaling nearly $100 million.
In the recent interview, Mr. Dhabi, the deputy foreign affairs minister, did not mention a price tag. But he said that creating a rehabilitation program would be “long, costly and would require cooperation.” He said the Americans were “disappointed” to hear that.
Every option for the Yemenis at Guantánamo seems to have its roadblocks. There have long been reports that many Yemeni detainees may go to Saudi Arabia’s rehabilitation program for former jihadists. That program has been widely praised in the Middle East, despite recent disclosures that some graduates who are former Guantánamo detainees have returned to terrorism.
But the Saudis have noted that Yemen demands that its citizens be sent home, and a high-level Saudi official said his country would not take any of the detainees unless Yemen asked it to.
William Glaberson reported from New York, and Robert F. Worth from Beirut, Lebanon. Margot Williams contributed reporting from New York.
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"Reality bites BO in butt again"
The only ones being bitten in the butt are the American people.
BO is already getting the rave reviews for his "first 100 days" in the MSM.
Of course Carville gives him an A- but when Ed Rollins gives him a B.........
BO is comfortable doing the "triangulation" thing with the purported "torture" (non) issue letting the legislatures deal with the prosecutions while he sits back and pretends he is above it all. All he did was selectively release information so his blood hounds in the House/Senate can do the dirty work. Recall Pelosi's statement that they will "cover his back".
It is all pay back time for the independent counsel that went after Clinton and the subsequent impeachment.
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WASHINGTON (AP) - House Democrats are refusing to pay for President Barack Obama's plan to relocate prisoners from the Guantanamo detention facility where enemy combatants are being held.
Obama has signed an executive order to close the facility at Guantanamo Bay, Cuba, by early next year. But the Pentagon has yet to come up with a plan on where to put the 240 or so prisoners. Between 50-100 are likely to be sent to the United States.
No lawmaker wants the accused terrorists in their backyard. House Democrats unveiled a $94.4 billion war funding bill Monday and it had no money for the relocation plan. The step is not likely to be the last word, however. If needed, money could be transferred later—without a politically difficult vote.
Copyright 2009 The Associated Press.
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Ah, the bane of the liberals; NIMBY.
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Well, this could be interesting. Our GM and Yale Law Review on the same side?!?
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1389511
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second post of the morning
On his second day in office, President Obama ordered the Pentagon to mothball Guantanamo within one year, purportedly to reclaim the "moral high ground." That earned applause from the anti-antiterror squadrons, yet it is now causing all kinds of practical and political problems in what used to be known as the war on terror.
AP
This mess grew even more chaotic this week, when Democrats refused the Administration's $50 million budget request to transfer some of the remaining 241 Gitmo detainees to a prison likely to be somewhere in the U.S. and perhaps to a new one built with taxpayer dollars. "What do we do with the 50 to 100 -- probably in that ballpark -- who we cannot release and cannot try?" Defense Secretary Robert Gates recently asked Congress.
The best answer is Gitmo. But the antiwar left wants terrorists treated like garden-variety criminals in the civilian courts or maybe military courts martial. The not-so-minor problem is that even states that send leftists to Congress don't want to host Gitmo-II. Think California, where Alcatraz could be an option. The abandoned San Francisco Bay prison has Gitmo's virtue of relative isolation -- but Senator Dianne Feinstein, the chairman of the Intelligence Committee, claims it is a national treasure. The terrorist-next-door problem is also rising to a high boil in Kansas politics, given that Fort Leavenworth is being eyed too.
More urgently, the Administration risks losing all control once enemy combatants set foot on formal U.S. soil, which the courts could determine entitles the terrorists to the same Constitutional protections as U.S. citizens. One federal judge has already ordered that 17 detainees -- the Uighurs, a Chinese ethnic minority -- be released domestically. Another judge has ruled that the Supreme Court's 5-4 Boumediene decision, which granted detainees the right to file habeas petitions in U.S. courts, extends to Bagram Air Base in Afghanistan, where the military is holding three times as many prisoners as Guantanamo.
In his Boumediene dissent, Chief Justice John Roberts indicted the majority's "set of shapeless procedures to be defined by federal courts at some future date," and was he ever right. How will judges prevent the public disclosure of classified material? What about Miranda rights, or evidence obtained under battlefield conditions?
Such questions nearly scuttled the Justice Department's case against Ali Saleh Kahlah al-Marri, which flamed out last week with a sentence of only 15 years. According to the plea agreement, al-Marri entered the U.S. on September 10, 2001 on orders from Khalid Sheikh Mohammed to begin research on chemical weapons and potential targets. Prosecutors were hampered by the possibility of disclosing intelligence sources and methods, as well as (yet another) political flare-up about interrogation and detention.
For these reasons and more, the Obama Administration has done a 180-degree turn on George W. Bush's military commissions. Mr. Obama called this meticulous legal process "an enormous failure" during his campaign and suspended it when he cashiered Gitmo, but now Mr. Gates says it is "still very much on the table." The Administration may soon announce that it will be reactivated, with a few torques to the rules of secrecy and evidence to attempt to appease the human-rights lobby.
The hardest Gitmo cases are those prisoners who are known to be dangerous or were actively involved in terror networks but haven't committed crimes per se. Others involve evidence that is insufficient for successful prosecutions but sufficient enough to determine that release or transfer would pose a grave security risk. Many of these detainees are Yemeni, and the Yemeni government is demanding that Washington repatriate them.
That would be an unmitigated disaster, whatever Yemen's promises of rehabilitation. Director of National Intelligence Dennis Blair recently reported that Yemen "is re-emerging as a jihadist battleground and potential regional base of operations for al Qaeda to plan internal and external attacks, train terrorists and facilitate the movement of operatives."
Terror groups have conducted some 20 attacks on U.S. or Western targets in Yemen, the most recent in September against the U.S. embassy, which killed six guards and four civilians. The recidivism rate of those detainees who the military has judged to be good candidates for release from Gitmo is already high, and the danger for the 90 or so Yemenis and others ought to be unacceptable.
Which brings us back to Gitmo's new location, if it ever gets one. Since 1987, the political system has been deadlocked over burying a negligible amount of nuclear waste deep within a remote mountain in Nevada, so it's hard to imagine how it will deal with a terrorist problem that is far more -- how to put it? -- radioactive. Safe to say that any new setting will not be in a 2012 swing state, and you don't have to be a cynic to wonder if it will have two Republican Senators. Mr. Obama could have avoided this mess had he kept his Gitmo options open, but to adapt a famous phrase, the President broke Guantanamo so now he owns the inmates.
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By DEBRA BURLINGAME
In February I was among a group of USS Cole and 9/11 victims' families who met with the president at the White House to discuss his policies regarding Guantanamo detainees. Although many of us strongly opposed Barack Obama's decision to close the detention center and suspend all military commissions, the families of the 17 sailors killed in the 2000 attack in Yemen were particularly outraged.
Over the years, the Cole families have seen justice abandoned by the Clinton administration and overshadowed by the need of the Bush administration to gather intelligence after 9/11. They have watched in frustration as the president of Yemen refused extradition for the Cole bombers.
Now, after more than eight years of waiting, Mr. Obama was stopping the trial of Abu Rahim al-Nashiri, the only individual to be held accountable for the bombing in a U.S. court. Patience finally gave out. The families were giving angry interviews, slamming the new president just days after he was sworn in.
The Obama team quickly put together a meeting at the White House to get the situation under control. Individuals representing "a diversity of views" were invited to attend and express their concerns.
On Feb. 6, the president arrived in the Roosevelt Room to a standing though subdued ovation from some 40 family members. With a White House photographer in his wake, Mr. Obama greeted family members one at a time and offered brief remarks that were full of platitudes ("you are the conscience of the country," "my highest duty as president is to protect the American people," "we will seek swift and certain justice"). Glossing over the legal complexities, he gave a vague summary of the detainee cases and why he chose to suspend them, focusing mostly on the need for speed and finality.
Many family members pressed for Guantanamo to remain open and for the military commissions to go forward. Mr. Obama allowed that the detention center had been unfairly confused with Abu Ghraib, but when asked why he wouldn't rehabilitate its image rather than shut it down, he silently shrugged. Next question.
Mr. Obama was urged to consult with prosecutors who have actually tried terrorism cases and warned that bringing unlawful combatants into the federal courts would mean giving our enemies classified intelligence -- as occurred in the cases of the al Qaeda cell that carried out the 1993 World Trade Center bombing and conspired to bomb New York City landmarks with ringleader Omar Abdel Rahman, the "Blind Sheikh." In the Rahman case, a list of 200 unindicted co-conspirators given to the defense -- they were entitled to information material to their defense -- was in Osama bin Laden's hands within hours. It told al Qaeda who among them was known to us, and who wasn't.
Mr. Obama responded flatly, "I'm the one who sees that intelligence. I don't want them to have it, either. We don't have to give it to them."
How could anyone be unhappy with such an answer? Or so churlish as to ask follow-up questions in such a forum? I and others were reassured, if cautiously so.
News reports described the meeting as a touching and powerful coming together of the president and these long-suffering families. Mr. Obama had won over even those who opposed his decision to close Gitmo by assuaging their fears that the review of some 245 current detainees would result in dangerous jihadists being set free. "I did not vote for the man, but the way he talks to you, you can't help but believe in him," said John Clodfelter to the New York Times. His son, Kenneth, was killed in the Cole bombing. "[Mr. Obama] left me with a very positive feeling that he's going to get this done right."
"This isn't goodbye," said the president, signing autographs and posing for pictures before leaving for his next appointment, "this is hello." His national security staff would have an open-door policy.
Believe . . . feel . . . hope.
We'd been had.
Binyam Mohamed -- the al Qaeda operative selected by Khalid Sheikh Mohammed (KSM) for a catastrophic post-9/11 attack with co-conspirator Jose Padilla -- was released 17 days later. In a follow-up conference call, the White House liaison to 9/11 and Cole families refused to answer questions about the circumstances surrounding the decision to repatriate Mohamed, including whether he would be freed in Great Britain.
The phrase "swift and certain justice" had been used by top presidential adviser David Axelrod in an interview prior to our meeting with the president. "Swift and certain justice" figured prominently in the White House press release issued before we had time to surrender our White House security passes. "At best, he manipulated the families," Kirk Lippold, commanding officer of the USS Cole at the time of the attack and the leader of the Cole families group, told me recently. "At worst, he misrepresented his true intentions."
Last week, Attorney General Eric Holder told German reporters that 30 detainees had been cleared for release. This includes 17 Chinese fundamentalist Muslims, the Uighurs, some of whom admit to having been trained in al Qaeda and Taliban camps and being associated with the East Turkistan Islamic Party. This party is led by Abdul Haq, who threatened attacks on the 2008 Olympics Games in Beijing and was recently added to the Treasury Department's terrorist list. The Obama administration is considering releasing the Uighurs on U.S. soil, and it has suggested that taxpayers may have to provide them with welfare support. In a Senate hearing yesterday, Mr. Holder sidestepped lawmakers' questions about releasing detainees into the U.S. who have received terrorist training.
What about the terrorists who may actually be tried? The Justice Department's recent plea agreement with Ali Saleh al-Marri should be of grave concern to those who believe the Obama administration will vigorously prosecute terrorists in the federal court system.
Al-Marri was sent to the U.S. on Sept. 10, 2001, by KSM to carry out cyanide bomb attacks. He pled guilty to one count of "material support," a charge reserved for facilitators rather than hard-core terrorists. He faces up to a 15-year sentence, but will be allowed to argue that the sentence should be satisfied by the seven years he has been in custody. This is the kind of thin "rule of law" victory that will invigorate rather than deter our enemies.
Given all the developments since our meeting with the president, it is now evident that his words to us bore no relation to his intended actions on national security policy and detainee issues. But the narrative about Mr. Obama's successful meeting with 9/11 and Cole families has been written, and the press has moved on.
The Obama team has established a pattern that should be plain for all to see. When controversy erupts or legitimate policy differences are presented by well-meaning people, send out the celebrity president to flatter and charm.
Most recently, Mr. Obama appeared at the CIA after demoralizing the agency with the declassification and release of memos containing sensitive information on CIA interrogations. He appealed to moral vanity by saying that fighting a war against fanatic barbarians "with one hand tied behind your back" is being on "the better side of history," even though innocent lives are put at risk. He promised the assembled staff and analysts that if they keep applying themselves, they won't be personally marked for career-destroying sanctions or criminal prosecutions, even as disbelieving counterterrorism professionals -- the field operatives and their foreign partners -- shut down critical operations for fear of public disclosure and political retribution in the never-ending Beltway soap opera called Capitol Hill.
It worked: On television, his speech looked like a campaign rally, with people jumping up and down, cheering. Meanwhile, the media have moved on, even as they continue to recklessly and irresponsibly use the word "torture" in their stories.
I asked Cmdr. Kirk Lippold why some of the Cole families declined the invitation to meet with Barack Obama at the White House.
"They saw it for what it was."
Ms. Burlingame, a former attorney and a director of the National September 11 Memorial Foundation, is the sister of Charles F. "Chic" Burlingame III, the pilot of American Airlines flight 77, which was crashed into the Pentagon on Sept. 11, 2001.
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Second post of day:
Contractor pleads guilty to Taliban shooting
By Matthew Barakat - The Associated Press
Posted : Wednesday Feb 4, 2009 16:34:47 EST
ALEXANDRIA, Va. — An Army contractor is facing up to 15 years in prison after pleading guilty to manslaughter in the shooting death of a handcuffed Taliban member who had just set one of the contractor’s colleagues on fire.
Don M. Ayala, 46, of New Orleans struck a plea bargain Tuesday in federal court in Alexandria, avoiding murder charges that could have resulted in life in prison.
Ayala provided security on what the Army calls a Human Terrain Team, in which social scientists and anthropologists are embedded with combat brigades to help soldiers understand local culture.
On Nov. 4, Ayala and two other team members were on a walking patrol about 80 miles west of Kandahar, in a village called Chehel Gazi. Team member Paula Loyd was distributing candy to villagers and talking about gas prices with an Afghan man, Abdul Salam, when he lit a pitcher of fuel on fire and threw it on her.
According to court documents, Ayala helped arrest and subdue Salam, who was then placed in plastic restraints. Ayala kept a pistol pointed at Salam’s head as he continued to resist arrest.
After a few minutes, when Ayala learned how badly Loyd had been burned, Ayala shot Salam in the head, killing him instantly.
The Taliban claimed responsibility for the attack on Loyd, 36, who suffered second- and third-degree burns over 60 percent of her body and died from her injuries last month at an Army hospital in San Antonio.
Ayala’s case had been the first case in which federal prosecutors brought murder charges against a military contractor serving in Iraq or Afghanistan under the Military Extraterritorial Jurisdiction Act, the 2000 law that allows such prosecutions.
Ayala was employed by Strategic Analysis, Inc., an Arlington company working as a subcontractor for BAE Systems, which has its U.S. Headquarters in Rockville, Md. Strategic Analysis did not immediately return a phone call Wednesday seeking comment. Ayala had previously worked for contractors providing personal security for Afghan President Hamid Karzai and Iraqi Prime Minister Nouri al-Maliki.
Ayala is scheduled for sentencing on May 8.
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KABUL (Reuters) - A U.S. civilian shot dead an Afghan civilian who tried to set fire to another American on Tuesday, the U.S. military said.
At least 4,000 people have been killed in Afghanistan this year, some 1,000 of them civilians. It is still rare though for foreign civilians to be directly engaged in the conflict.
The shooting occurred after an altercation, a U.S. military statement said.
"Reports indicate the local national was shot after pouring and igniting a flammable liquid on another U.S. civilian. The civilian sustained serious burns and was transported to the nearest coalition forces medical facility for treatment," it said.
Taliban insurgents said children had poured petrol on a female foreign soldier and set fire to her while she was searching homes in the town of Maiwand in the southern province of Kandahar.
"The soldier caught fire immediately after petrol was poured on her and then explosions were set off because of the ammunition on her," the Taliban said on their Web site.
"As a result the female soldier was killed instantly and a large number of other foreign soldiers were wounded," it said.
It was not possible to verify the conflicting reports, but the Taliban frequently exaggerate foreign troop casualties.
(Writing by Jon Hemming; Editing by David Fox)
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From WSJ - Crafty's post, Debra Burlingame,sister of Charles Burlingame, pilot of the flight that was crashed into the Pentagon on Sept. 11, 2001:
"bringing unlawful combatants into the federal courts would mean giving our enemies classified intelligence -- as occurred in the cases of the al Qaeda cell that carried out the 1993 World Trade Center bombing and conspired to bomb New York City landmarks with ringleader Omar Abdel Rahman, the "Blind Sheikh." In the Rahman case, a list of 200 unindicted co-conspirators given to the defense -- they were entitled to information material to their defense -- was in Osama bin Laden's hands within hours. It told al Qaeda who among them was known to us, and who wasn't."
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What a powerful, specific example in the argument about why NOT to criminalize terrorism or bring court prosecutions of enemy combatants in times of war. Defendants in courts receive rights including the right to see the evidence against them, which creates a motive to commit more acts of terror, get caught, expose our intelligence - information, people and methods - and sabotage our security.
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What a _________________!!! :x :x :x
Pelosi: I Was Told Interrogation Methods Were Lawful
The House speaker's statement came after CIA records showed Pelosi was briefed in September 2002 on the interrogation methods and appeared to contradict her claim last month that she was never told that waterboarding or other enhanced interrogation techniques were being used.
FOXNews.com
House Speaker Nancy Pelosi insisted Friday that she was briefed only once about the "enhanced" interrogation techniques being used on terrorism suspects and that she was assured by lawyers with the CIA and the Department of Justice that the methods were legal.
Pelosi issued a statement after CIA records released this week showed that Pelosi was briefed in September 2002 on the interrogation methods. The briefings memo appeared to contradict the speaker's claims that she was never told that waterboarding or other enhanced interrogation methods were being used.
"We were not -- I repeat -- were not told that waterboarding or any of these other enhanced interrogation methods were used," Pelosi said on April 23.
The emphasis seems to be on "were used," even though she conceded in a statement released Friday that she was told they would be used.
"As I said in my statement of December 9, 2007: 'I was briefed on interrogation techniques the (Bush) administration was considering using in the future. The administration advised that legal counsel for both the CIA and the Department of Justice had concluded that the techniques were legal,'" she said.
But even that statement is at odds with the official record of the briefings recorded in the CIA memo dated to Sept. 4, 2002. That memo says Pelosi received a "briefing on EITs (enhanced interrogation techniques), including use of EITs on Abu Zubaydah, background on authorities and a description of particular EITs that had been employed."
Pelosi noted that the media had reported this week that CIA Director Leon Panetta wrote in a cover letter accompanying the briefings memo that "the descriptions provided by the CIA may not be accurate."
Pelosi is fighting back against accusations that she and other Democrats are being motivated by politics in their attempt to establish an independent commission to investigate officials and lawyers involved with the Bush-era interrogation programs.
Pelosi is just one of 65 lawmakers who received 40 briefings dealing with the subject. Sen. Jay Rockefeller, D-W.Va., for instance, was repeatedly briefed, as was Rep. Jane Harman, D-Valif., who took over Pelosi's spot on the House Intelligence Committee.
In addition, from the beginning of the program in 2002 until it became public in the fall of 2006, the House held 13 votes to authorize intelligence funding at which time no one objected or demanded changes to any intelligence programs.
The briefings took place in the months after the Sept. 11, 2001, terror attacks. At the time, the CIA was getting actionable intelligence that helped disrupt several terrorist plots.
Lawmakers apparently didn't want to stop that. But when it became public, Pelosi and others shifted gears and started criticizing a program they had known about for years, claimed GOP strategist Brad Blakeman.
"Either the speaker has a veracity problem or an incompetence problem and it could be both," Blakeman told FOX News. "The fact of the matter is she was briefed and she was hoping that the top secret nature of these briefings would shield her from this information coming out."
Blakeman added that he trusts the notes made at the briefings more than Pelosi's memory.
Justice Department officials are not likely to recommend criminal charges against the three Bush administration lawyers who the wrote the memos approving the interrogation methods, but two could face disciplinary action from their state bar associations.
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"Justice Department officials are not likely to recommend criminal charges against the three Bush administration lawyers who the wrote the memos approving the interrogation methods, but two could face disciplinary action from their state bar associations."
Of course. This was never about justice. It was never about morality. It was just to *get* Republicans.
Will Pelosi be held accountable?
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Note that the administration has said it won't go after intelligence operatives either. Though they claim the high moral ground, that pesky self-interest keeps expediency on the front burner. I suspect before this term is over some interesting stuff will be coming out from "unnamed sources." Be interesting to see how the cheerleaders in the press corps will deal with leaked info.
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WASHINGTON — In an abrupt shift, Senate Democratic leaders said they would not provide the $80 million that President Obama requested to close the detention center at Guantánamo Bay, Cuba. The move escalates pressure on the president, who on Thursday is scheduled to outline his plans for the 240 terrorism suspects still held there.
In recent days, Mr. Obama has faced growing demands from both parties, but particularly Republicans, to lay out a more detailed road map for closing the Guantánamo prison and to provide assurances that detainees would not end up on American soil, even in maximum security prisons.
The move by Senate Democrats to strip the $80 million from a war-spending bill and the decision to bar, for now, transfer of detainees to the United States, raised the possibility that Mr. Obama’s order to close the camp by Jan. 22, 2010, might have to be changed or delayed.
“Guantánamo makes us less safe,” the Senate majority leader, Harry Reid of Nevada, said at a news conference where he laid out the party’s rationale for its decision, which is expected to be voted on this week. “However, this is neither the time nor the bill to deal with this. Democrats under no circumstances will move forward without a comprehensive, responsible plan from the president. We will never allow terrorists to be released into the United States.”
Senate Democrats said they still backed Mr. Obama’s decision to close the prison. But lawmakers have not exactly been eager to accept detainees in their home states. When the tiny town of Hardin, Mont., offered to put the terrorism suspects in its empty jail, Montana’s senators, both Democrats, and its representative, a Republican, quickly voiced opposition.
Administration officials have indicated that if the Guantánamo camp closes as scheduled more than 100 prisoners may need to be moved to the United States, including 50 to 100 who have been described as too dangerous to release.
Of the 240 detainees, 30 have been cleared for release. Some are likely to be transferred to foreign countries, though other governments have been reluctant to take them. Britain and France have each accepted one former detainee. And while as many as 80 of the detainees will be prosecuted, it remains unclear what will happen to those who are convicted and sentenced to prison.
At the White House, the press secretary, Robert Gibbs, said the administration expected that Congress would eventually release the money to close the camp, and he suggested that the concerns of lawmakers would start to be addressed on Thursday, when Mr. Obama will present a “hefty pa rt” of his plan.
At the Pentagon, a spokesman, Geoff Morrell, said he believed that the administration remained on track to meet the deadline for closing the prison. “I see nothing to indicate that that date is at all in jeopardy,” Mr. Morrell said.
As the administration has struggled with the issue, it has come under assault from the right and the left.
Conservatives have sought to portray the president as weak on national security. Liberals, including some human rights advocates, have criticized several of Mr. Obama’s decisions, including his plan to revive the military commissions created by the Bush administration to prosecute terrorism suspects held at Guantánamo.
Lawmakers, mindful of polls showing wide public opposition to bringing detainees to the United States, have expressed concerns about the safety of their constituents, and some have said that any location housing detainees, even the most secure prisons, would become a potential target for a terrorist attack.
On Tuesday Republicans, including the Senate minority leader, Mitch McConnell of Kentucky, who has been warning for weeks about the dangers of closing the prison, applauded the Democrats’ decision.
At a news conference, Mr. McConnell said he hoped it was a prelude to keeping the camp open and dangerous terrorism suspects offshore, where he said they belong. He noted that no prisoner had escaped from Guantánamo since the Sept. 11 attacks.
“Guantánamo is the perfect place for these terrorists,” Mr. McConnell said. “However, if the president ends up sticking with this decision to close it next January, obviously they need a place to be. It ought not to be the United States of America.”
Senate Democrats on Tuesday conceded that their decision to shift course in part reflected the success of Republicans in putting them on the defensive.
But the Democrats said they had also acted to avert a partisan feud that would delay the military-spending measure, which is needed to finance the wars in Iraq and Afghanistan and other national security programs through Sept. 30.
, , ,
continued
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Wow, when the New York Times stops obfuscating on this front, perhaps one should look other signs of the apocalypse (see photo).
1 in 7 Freed Detainees Rejoins Fight, Report Found
May 21, 2009
1 in 7 Freed Detainees Rejoins Fight, Report Found
By ELISABETH BUMILLER
WASHINGTON — An unreleased Pentagon report provides new details concluding that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guantánamo Bay, Cuba, has returned to terrorism or militant activity, according to administration officials.
The conclusion could strengthen the arguments of critics who have warned against releasing any more prisoners as part of President Obama’s plan to shut down the prison by January 2010. Past Pentagon reports on Guantánamo recidivism, however, have been met with skepticism from civil liberties groups and criticized for their lack of detail.
The Pentagon promised in January that the latest report would be released soon, but Bryan Whitman, a Pentagon spokesman, said this week that the findings were still “under review.”
Two administration officials who spoke on condition of anonymity said the report was being held up by Defense Department employees fearful of upsetting the White House, at a time when even Congressional Democrats have begun to show misgivings over Mr. Obama’s plan to close Guantánamo.
The White House has said that Mr. Obama will provide further details about his plans for closing the prison there in a speech Thursday morning at the National Archives.
Pentagon officials said there had been no pressure from the White House to suppress the report, and said they believed that the Defense Department employees, some of them holdovers from the Bush administration, were acting pre-emptively to protect their jobs.
The report is the subject of numerous Freedom of Information Act requests from news media organizations, and Mr. Whitman said that he expected it to be released shortly. The report, a copy of which was made available to The New York Times, says the Pentagon believes that 74 prisoners released from Guantánamo have returned to terrorism, making for a recidivism rate of nearly 14 percent.
The report was made available by an administration official sympathetic to its findings who said the delay was creating unnecessary “conspiracy theories” about the holdup.
A Defense Department official said there was little will inside the Pentagon to release the report because it had become politically radioactive under Mr. Obama.
“If we hold it, then everybody claims it’s political and you’re protecting the Obama administration,” said the official, who asked for anonymity because of the sensitivity of the situation. “And if we let it go, then everybody says you’re undermining Obama.”
Previous assertions by the Pentagon that substantial numbers of former Guantánamo prisoners had returned to terrorism were harshly criticized by civil liberties and human rights groups who said the information was too vague to be credible and amounted to propaganda in favor of keeping the prison open. The Pentagon began making these assertions in 2007 but stopped earlier this year, shortly before Mr. Obama took office. In recent days, the Pentagon has run into rising objections in Congress to closing the prison, particularly from Senator Harry Reid of Nevada, the Democratic majority leader, who said recently that Guantánamo detainees would “never” be released in the United States.
On Wednesday, Michele A. Flournoy, the under secretary of defense for policy, reminded reporters that many of these now expressing reservations about the transfer of prisoners from Guantánamo had also called for the closing it.
“I think there will be some that need to end up in the United States,” she said.
Among the 74 former prisoners that the report says are again engaged in terrorism, 29 have been identified by name by the Pentagon, including 16 named for the first time in the report. The Pentagon has said that the remaining 45 could not be named because of national security and intelligence-gathering concerns.
In the report, the Pentagon confirmed that two former Guantánamo prisoners whose terrorist activities had been previously reported had indeed returned to the fight. They are Said Ali al-Shihri, a leader of Al Qaeda’s Yemeni branch suspected in a deadly bombing of the United States embassy in Sana, Yemen’s capital, last year, and Abdullah Ghulam Rasoul, an Afghan Taliban commander, who also goes by the name Mullah Abdullah Zakir.
The Pentagon has so far provided no way of authenticating its 45 unnamed recidivists, and only a few of the 29 people who are identified by name can be independently verified as having engaged in terrorism since their release. Many of the 29 are simply described as associating with terrorists or training with terrorists, with almost no other details provided.
“It’s part of a campaign to win the hearts and minds of history for Guantánamo,” said Mark P. Denbeaux, a professor at Seton Hall University School of Law who has represented Guantánamo detainees and co-written three studies highly critical of the Pentagon’s previous recidivism reports. “They want to be able to claim there really were bad people there.”
Mr. Denbeaux acknowledged that some of the named detainees had engaged in verifiable terrorist acts since their release, but he said his research showed that their numbers were small. “We’ve never said there weren’t some people who would return to the fight,” Mr. Denbeaux said. “It seems to be unavoidable. Nothing is perfect.”
Terrorism experts said that a 14 percent recidivism rate was far lower than the rate for prisoners in the United States, which, they said, can run as high as 68 percent three years after release. The experts also said that while Americans might have a lower level of tolerance for recidivism among Guantánamo detainees, there was no evidence that any of those released had engaged in elaborate operations like the Sept. 11, 2001, attacks.
“Terrorism is perpetrated by organizations and not individuals,” said Bruce Hoffman, a terrorism expert at Georgetown University.
In addition to Mr. Shihri and Mr. Rasoul, at least three others among the 29 named have engaged in verifiable terrorist activity or have threatened terrorist acts.
Abu Hareth Muhammad al-Awfi, a Saudi national who was released from Guantánamo to Saudi Arabia in November 2007, and who is named on the most recent list of 16, appeared with Mr. Al-Shihri in a video released by Al Qaeda’s Yemeni branch in January and reported by news organizations at the time. Like Mr. Shihri, Mr. Awfi passed through a Saudi rehabilitation program for jihadists after their release from the prison. The program has been seen as a model, and the Saudi government has previously said that none of its graduates had returned to terrorism.
In the video, Mr. Awfi threatened attacks against Saudi Arabia and spoke angrily about Israeli attacks on Hamas in Gaza.
Another on the list of 29 whose case has been widely reported is Abdullah Salih al-Ajmi, a Kuwaiti who was in Guantánamo from 2002 to 2005 and who subsequently carried out a suicide bomb attack in Mosul, Iraq, in 2008. The attack killed several Iraqi soldiers.
Margot Williams contributed reporting from New York.
http://www.nytimes.com/2009/05/21/us/politics/21gitmo.html?_r=1
(http://www.wayodd.com/funny-pictures2/funny-pictures-hell-freezes-over-14l.jpg)
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By DAVID B. RIVKIN JR. and LEE A. CASEY
President Barack Obama is retaining many important Bush administration antiterror policies, including the detention without trial of jihadist captives as well as military commissions. He is determined, however, to close the Guantanamo detention facility because he believes doing so will not cause many problems in the U.S., and will improve our image abroad and bolster international support for U.S. antiterror policies. He will be disappointed on all counts.
Guantanamo has always been a symbol, rather than the substance, of complaints against America's "war on terror." It's the military character of the U.S. response to 9/11 that foreign and domestic critics won't accept.
There are also longstanding ideological currents at work here. At least since the 1970s, "progressive" international activists have sought to level the playing field between nation states (especially the U.S. and Israel) and nonstate actors such as the Palestine Liberation Organization and Hamas. Although international humanitarian law is supposed to apply neutrally to all belligerents, international opinion now gives nonstate actors far more leeway to ignore fundamental norms such as the rule against deliberately targeting civilians. The underlying implication is that terrorist tactics, however regrettable, are justified as the only means of achieving laudable goals like national liberation.
This mindset will not change if Guantanamo closes. At the same time, closing the detention facilities will create numerous headaches quite beyond the security issues raised by dangerous detainees who might escape or serve as a magnet for terrorist attacks in U.S.-based facilities.
One immediate problem, identified by FBI Director Robert Mueller, is the very real possibility that the Guantanamo detainees will recruit more terrorists from among the federal inmate population and continue al Qaeda operations from the inside. Radical Islamists already preach jihad in prisons -- this was how the just-arrested New York synagogue bombers were recruited -- and criminal gangs have proved that a half-in/half-out management model works.
A longer-term problem is that once Guantanamo is closed the option of holding captured enemy combatants any place overseas will be undermined. Over time, more and more such individuals, including the ones convicted by military commissions, would have to be brought to the U.S., especially as Europe backs away from taking such individuals. Aggregating the world's worst jihadists on American soil, from which they can never be repatriated, is not a smart way to fight a war.
Meanwhile, the legality of incarcerating captured terrorists in U.S. domestic prisons is far from clear. Today the Guantanamo detainees are held under well-established laws of war permitting belligerents to confine captured enemies until hostilities are over. This detention, without the due process accorded criminal defendants, has always been legally justified because it emphatically is not penal in nature but a simple expedient necessary to keep captives from returning to the fight. It was on this basis that the Supreme Court approved the detention of war-on-terror captives, without trial, in Hamdi v. Rumsfeld (2004).
The Guantanamo detainees are "unlawful" enemy combatants and not "prisoners of war" under the Geneva Conventions. Yet they are still combatants, not convicts. By contrast, the individuals held in the federal prison system, and especially those in the maximum security facilities suggested for the Guantanamo detainees, are convicted criminals.
It is very doubtful that under the customary laws and customs of war, the Hamdi decision, or Common Article 3 of the Geneva Conventions (which the Supreme Court also has applied to the war on terror) the Guantanamo detainees can be treated like convicted criminals and consigned without trial to the genuinely fearsome world of a super-max prison.
Segregating the detainees from the overall prison population -- to maintain the "non-penal" character of their confinement as well as to frustrate any recruiting activities or continuing al Qaeda operations -- is also legally dubious. Unless a new Guantanamo is to be constructed, this segregation will have to take place in existing isolation wards used to discipline (and sometimes protect) federal inmates.
This could mean solitary confinement, perhaps for 23 hours a day, without regard to a detainee's conduct or disciplinary status. The chances that courts would consider this to be the "humane" treatment required by the Geneva conventions are not overwhelming.
The Obama administration can be certain these conditions will be challenged in the courts, and it is difficult to see how, in light of current judicial attitudes, the detainees will be denied the entire panoply of constitutional rights claimed by ordinary inmates -- including lawsuits challenging their conditions of confinement. If courts conclude that these conditions are unconstitutional, or that they cannot be held indefinitely as enemy combatants, judges could mandate the release of these jihadists into the U.S.
Mr. Obama can still reverse his decision to close Guantanamo. This would cost him significant political support among his base. But making unpopular decisions to serve the national interest is a president's duty and obligation. In this regard, Mr. Obama should follow his predecessor's example and put American national security before the vagaries of popular approval.
Messrs. Rivkin and Casey worked in the Justice Department under Presidents Reagan and George H.W. Bush, and have served as expert members of the U.N. Subcommission on the Promotion and Protection of Human Rights.
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http://hotair.com/archives/2009/06/10/good-news-us-reportedly-reading-terrorists-their-miranda-rights-now/
Good news: U.S. reportedly reading terrorists their Miranda rights now
POSTED AT 6:22 PM ON JUNE 10, 2009 BY ALLAHPUNDIT
Say, weren’t we warned during the campaign that this might happen if Obama won? Take it away, Sarahcuda:
Terrorist states are seeking nuclear weapons without delay … he wants to meet them without preconditions.
Al-Qaida terrorists still plot to inflict catastrophic harm on America … he’s worried that someone won’t read them their rights?
As I recall, she ate no small amount of crap for accusing him of that given his silence on the matter before the election. But then, this is the same woman who said enormous tax hikes were inevitable under The One in order to pay for his catastrophic expansion of government, notwithstanding his campaign promises not to raise taxes on the middle class. How’s that prediction working out so far? Crazy Sarah and her nutty theories.
Anyway, yeah. Miranda warnings:
If Tenet is right, it’s a good thing KSM was captured before Barack Obama became president. For, the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee. “The administration has decided to change the focus to law enforcement. Here’s the problem. You have foreign fighters who are targeting US troops today – foreign fighters who go to another country to kill Americans. We capture them…and they’re reading them their rights – Mirandizing these foreign fighters,” says Representative Mike Rogers, who recently met with military, intelligence and law enforcement officials on a fact-finding trip to Afghanistan.
Rogers, a former FBI special agent and U.S. Army officer, says the Obama administration has not briefed Congress on the new policy. “I was a little surprised to find it taking place when I showed up because we hadn’t been briefed on it, I didn’t know about it. We’re still trying to get to the bottom of it, but it is clearly a part of this new global justice initiative.”
It was thoughtful of the most transparent administration evah to force Rogers to find out about this on the battlefield. There’s a certain perverse logic to it, though: If you’re unwilling to use any form of enhanced interrogation to save lives, you might as well go the whole nine yards and affirmatively warn detainees that they don’t have to talk to you. That’s what a law-enforcement approach to terrorism means — accepting a heightened risk of an attack by eschewing certain preventative measures in order to heighten the risk of conviction in court later by following criminal procedure. How this squares with The One’s willingness to send drones into Pakistan and torpedo houses packed with people on the say-so of informants is beyond me, but I’m sure we’ll get a speech on it at some point down the line. Exit question: Why institute a Miranda policy for terrorists captured abroad before the Supreme Court’s even heard the issue? They might find a wrinkle distinguishing classic criminal cases from prisoners of war — especially if Sotomayor’s half as tough on crime as the White House spin team keeps assuring us she is.
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Here's the piece GM's posting quotes:
Not Right
The Obama administration grants Miranda rights to detainees in Afghanistan.
by Stephen F. Hayes
06/10/2009 2:05:00 PM
When 9/11 mastermind Khalid Sheikh Mohammad was captured on March 1, 2003, he was not cooperative. "I'll talk to you guys after I get to New York and see my lawyer," he said, according to former CIA Director George Tenet.
Of course, KSM did not get a lawyer until months later, after his interrogation was completed, and Tenet says that the information the CIA obtained from him disrupted plots and saved lives. "I believe none of these successes would have happened if we had had to treat KSM like a white-collar criminal -- read him his Miranda rights and get him a lawyer who surely would have insisted that his client simply shut up," Tenet wrote in his memoirs.
If Tenet is right, it's a good thing KSM was captured before Barack Obama became president. For, the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee. "The administration has decided to change the focus to law enforcement. Here's the problem. You have foreign fighters who are targeting US troops today -- foreign fighters who go to another country to kill Americans. We capture them and they're reading them their rights -- Mirandizing these foreign fighters," says Representative Mike Rogers, who recently met with military, intelligence and law enforcement officials on a fact-finding trip to Afghanistan.
Rogers, a former FBI special agent and U.S. Army officer, says the Obama administration has not briefed Congress on the new policy. "I was a little surprised to find it taking place when I showed up because we hadn't been briefed on it, I didn't know about it. We're still trying to get to the bottom of it, but it is clearly a part of this new global justice initiative."
That effort, which elevates the FBI and other law enforcement agencies and diminishes the role of intelligence and military officials, was described in a May 28 Los Angeles Times article.
The FBI and Justice Department plan to significantly expand their role in global counter-terrorism operations, part of a U.S. policy shift that will replace a CIA-dominated system of clandestine detentions and interrogations with one built around transparent investigations and prosecutions.
Under the "global justice" initiative, which has been in the works for several months, FBI agents will have a central role in overseas counter-terrorism cases. They will expand their questioning of suspects and evidence-gathering to try to ensure that criminal prosecutions are an option, officials familiar with the effort said.
Thanks in part to the popularity of law and order television shows and movies, many Americans are familiar with the Miranda warning -- so named because of the landmark 1966 Supreme Court case Miranda v. Arizona that required police officers and other law enforcement officials to advise suspected criminals of their rights.
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.
A lawyer who has worked on detainee issues for the U.S. government offers this rationale for the Obama administration's approach. "If the US is mirandizing certain suspects in Afghanistan, they're likely doing it to ensure that the treatment of the suspect and the collection of information is done in a manner that will ensure the suspect can be prosecuted in a US court at some point in the future."
But Republicans on Capitol Hill are not happy. "When they mirandize a suspect, the first thing they do is warn them that they have the 'right to remain silent,'" says Representative Pete Hoekstra, the ranking Republican on the House Intelligence Committee. "It would seem the last thing we want is Khalid Sheikh Mohammed or any other al-Qaeda terrorist to remain silent. Our focus should be on preventing the next attack, not giving radical jihadists a new tactic to resist interrogation--lawyering up."
According to Mike Rogers, that is precisely what some human rights organizations are advising detainees to do. "The International Red Cross, when they go into these detention facilities, has now started telling people -- 'Take the option. You want a lawyer.'"
Rogers adds: "The problem is you take that guy at three in the morning off of a compound right outside of Kabul where he's building bomb materials to kill US soldiers, and read him his rights by four, and the Red Cross is saying take the lawyer -- you have now created quite a confusion amongst the FBI, the CIA and the United States military. And confusion is the last thing you want in a combat zone."
One thing is clear, though. A detainee who is not talking cannot provide information about future attacks. Had Khalid Sheikh Mohammad had a lawyer, Tenet wrote, "I am confident that we would have obtained none of the information he had in his head about imminent threats against the American people."
Stephen F. Hayes is a senior writer at THE WEEKLY STANDARD.
http://www.weeklystandard.com/Content/Public/Articles/000/000/016/605iidws.asp
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Milt, Rogt, JDN?
http://latimesblogs.latimes.com/washington/2009/06/barack-obama-george-w-bush-detainees.html
Obama prepares to hold Gitmo guys indefinitely, just as Bush did
In yet another sign of political perfidy, the White House of President George W. Bush has drafted a presidential executive order that would allow that double-dealing Republican chief executive to hold suspected terrorist detainees indefinitely.
According to the president's intentions, such suspects could be detained for long periods of time, virtually indefinitely. Is this really what the nation voted for last November?
Oh, wait. No. According to an exclusive Washington Post/Pro Publica report this afternoon, it's the refreshing new Democratic administration of Barack Obama that's now preparing this new executive order to hold certain terrorist suspects indefinitely.
This is an obviously inspiring sign of the new style of leadership the Democrat promised and is finally bringing to the White House. As one blogger put it, George W. Obama. And it shows the kind of powerful political pragmatism with which the ex-senator from Illinois approaches this job at such a crucial and globally turbulent time.Strangely, it was leaked to the Post on a slow summer Friday afternoon when it wouldn't gain much attention.
According to the Post report, the 44th president is now starting to think that closure of the internationally-reviled Guantanamo Bay detention facility, which Obama announced with so much fanfare on his first day in office last winter, may be impossible to actually accomplish before the one-year deadline he set for himself before actually planning where else to put these prisoners.
In other words, fanfare aside, status quo ante. Democrat or Republican, same deal. Ex-Vice President Dick Cheney will be so pleased that the Obama-Biden folks finally accepted his advice to protect national security.
Another sign, finally, of real change after eight long years of the very same thing.
-- Andrew Malcolm
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I am still on vacation but I could answer this post pretty quickly.
http://www.salon.com/opinion/greenwald/2009/06/27/preventive_detention/
It links to several commentators who are critical of the Obama policy
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Michael Yon throws his weight behind a search for SF soldiers to fight habeas corpus in Afpakia.
http://www.michaelyon-online.com/disturbing-developments.htm
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U.S. to Expand Review of Detainees in Afghan Prison Sign in to Recommend
ERIC SCHMITT
Published: September 12, 2009
WASHINGTON — The Obama administration soon plans to issue new guidelines aimed at giving the hundreds of prisoners at an American detention center in Afghanistan significantly more ability to challenge their custody, Pentagon officials and detainee advocates say.
The new Pentagon guidelines would assign a United States military official to each of the roughly 600 detainees at the American-run prison at the Bagram Air Base north of Kabul. These officials would not be lawyers but could for the first time gather witnesses and evidence, including classified material, on behalf of the detainees to challenge their detention in proceedings before a military-appointed review board.
Some of the detainees have already been held at Bagram for as long as six years. And unlike the prisoners at the Guantánamo Bay naval base in Cuba, these detainees have had no access to lawyers, no right to hear the allegations against them and only rudimentary reviews of their status as “enemy combatants,” military officials said.
The changes, which are expected to be announced as early as this week after an obligatory Congressional review, come as the Obama administration is picking through the detention policies and practices of the Bush administration, to determine what it will keep and what it will abandon in an effort to distance itself from some of the harsher approaches used under President George W. Bush. Human rights groups and prisoner advocates cautiously hailed the policy changes but said the government’s track record in this area had been so poor that they wanted to see concrete results before making hard judgments.
The decision has an immediately pragmatic side, too, coming as the administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.
Some of the changes in the American detention policies are already under way. The Pentagon is closing the decrepit Bagram prison and replacing it this fall with a new 40-acre complex that officials say will be more modern and humane. In a recent policy reversal, the military for the first time is notifying the International Committee of the Red Cross of the identities of militants who were being held in secret at a camp in Iraq and another in Afghanistan run by United States Special Operations forces.
The Bagram prison has become an ominous symbol for Afghans — a place where harsh interrogation methods and sleep deprivation were used routinely in its early years, and where two Afghan detainees died in 2002 after being beaten by American soldiers and hung by their arms from the ceilings of isolation cells. Bagram also became a holding site for terrorism suspects captured outside Afghanistan and Iraq.
Since July, the prisoners at Bagram have refused to leave their cells to shower, meet with family members or Red Cross officials, or take part in other activities, to protest their indefinite imprisonment, human rights advocates said.
Pentagon officials said the new guidelines governing each detainee’s custody status reflect a broader shift to separate extremist militants from more moderate detainees instead of having them mixed together as they are now.
“We don’t want to hold anyone we don’t have to hold,” said one Defense Department official, who spoke on the condition of anonymity because the guidelines have not been formally announced. “It’s just about doing the right thing.”
The official declined to estimate how many detainees might be freed once they have new evidence and witnesses to testify on their behalf.
Sahr MuhammedAlly, a senior associate for law and security at the advocacy group Human Rights First who in April interviewed several former Bagram detainees in Afghanistan, called the proposed changes an improvement. But she said that “it remains to be seen whether they’ll be able to prevent arbitrary and indefinite detention.”
Tina Foster, the executive director of the International Justice Network, which is representing four Bagram detainees in a pending court case, expressed deep reservations.
“On paper, it appears they’re going to be changes that will allow detainees more opportunity to present their side of the story,” Ms. Foster said in a telephone interview. “But I think the procedures are just words on pieces of paper unless someone is there to ensure they’re being followed and the detainee has the ability to understand them and avail themselves of them.”
Military officials and human rights advocates also said there were questions about how quickly and comprehensively the guidelines could be put into practice, given concerns about shortages of qualified personnel to represent the detainees.
The changes have come as the administration is expected as early as Monday to file a formal written brief explaining its opposition to a ruling by a federal district judge, John D. Bates, in April. In it, he ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay.
The prisoners — two Yemenis and a Tunisian — say that they were captured outside Afghanistan and taken to Bagram, and that they have been held for more than six years without trials. Arguing that they were not enemy combatants, the detainees want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.
The Obama administration, like the Bush administration, has rejected this argument. Officials say the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention and ordered the military prison at Guantánamo closed within a year.
The new policy guidelines will bolster the government’s case, said the Defense Department official, who added, “We want to be able to go into court and say we have good review procedures.”
The Obama administration had sought to preserve Bagram as a haven where it could detain terrorism suspects beyond the reach of American courts, agreeing with the Bush administration’s view that courts had no jurisdiction over detainees there.
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barely mentioned that the last SEVEN heads of the CIA have asked BO to over-rule AG Holder's ongoing legal investigations into intel matters.
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http://www.michaelyon-online.com/images/pdf/maqaleh_%20amicus_as_filed.pdf
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The left have run their mouth so much about Gitmo and Bush that they are now caught on their own petard. This ruling claiming habeas rights in some areas and not others can not stand up. It makes no sense. There are no habeas rights on the battlefield. What in the constitution or history for that mater gives the courts the power to define the battlefield? It is only a way for the left to attack Bush and his legicy. They are going to destroy the intelligence gathering capability of this country at a time we are stepping up persure on Iran?! All for political points, the country be damed! Their huberis is breathtaking! If I did not think this foolish course of action would get Americans killed I would love to see them fail, however they are going to get many people killed maybe thousands of Americans. I am glad to see the Amicus Curiae Special Forces Association do something about this insanity. I only hope it succeeds.
Freki
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The blithering fatuousness of the Oboids boggles the mind to the point that one begins to wonder if it is on purpose.
Our country and its protectors are going to pay heavily.
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Where are all the left wing screamers? Remember "Boooooosh is shredding the constitution!!!!!"
Now all quiet.
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Coming soon to a civilian courtroom blocks from Ground Zero: Khalid Sheikh Mohammed and the four other al Qaeda planners of 9/11. Be sure to get your tickets early, and don't forget to watch out for the truck-bomb barricades and rooftop snipers.
Attorney General Eric Holder, who dropped this legal bomb on New York yesterday, called his decision to move their trial on war crimes from a military courtroom at Guantanamo Bay to American soil "the toughest" he has had to make. Other words come to mind. For starters, intellectually and morally confused, dangerous and political to a fault.
This decision befits President Obama's rushed and misguided announcement on his second day in office that he would close Gitmo within a year. This was before the Administration had thought through what to do with the 215 prisoners there, though it did win him applause in Europe and on the American left. Yesterday's decision rids Gitmo of these meddlesome detainee cases in order to speed up this entirely political shutdown.
View Full Image
Associated Press
Khalid Sheikh Mohammed
.Please spare us talk of the "rule of law." If that was the primary consideration, the U.S. already has a judicial process in place. The current special military tribunals were created by the 2006 Military Commissions Act, which was adopted with bipartisan Congressional support after the Supreme Court's Hamdan decision obliged the executive and legislative branches to approve a detailed plan to prosecute the illegal "enemy combatants" captured since 9/11.
Contrary to liberal myth, military tribunals aren't a break with 200-plus years of American jurisprudence. Eight Nazis who snuck into the U.S. in June 1942 were tried by a similar court and most were hanged within two months. Before the Obama Administration stopped all proceedings earlier this year pending yesterday's decision, the tribunals at Gitmo had earned a reputation for fairness and independence.
As it happens, Mr. Holder acknowledged their worth himself by announcing that the Guantanamo detainee who allegedly planned the 2000 bombing of the U.S.S. Cole off Yemen and four others would face military commission trials. (The Pentagon must now find a locale other than the multimillion-dollar, state-of-the-art facility at Gitmo for its tribunal.)
Why the difference? Mr. Holder seemed to suggest that the Cole bombers struck a military target overseas and thus are a good fit for a military trial, while KSM and comrades hit the U.S. and murdered civilians and thus deserve a U.S. civilian trial. But this entirely misunderstands that both groups are unlawful enemy combatants who are accused of war crimes, whatever their targets. Mr. Holder's justification betrays not a legal consistency but a fundamentally political judgment that he can make as he sees fit.
The Military Commissions Act, by contrast, devised a careful, consistent legal process for every detainee. Remember when critics blamed President Bush for exercising too much executive discretion?
Mr. Holder expressed confidence that KSM and the rest will be convicted, but it is telling that he also delayed filing formal charges. Will KSM be formally charged with the 9/11 murders, or merely with "material support" for terrorism or some lesser offense? The specific charges may depend on how much evidence is admissable in a civilian courtroom. The MCA allowed for the reality that much of the evidence against enemy combatants may be classified, and it allowed for some hearsay evidence on grounds that they have been picked up on a battlefield, not in Brooklyn. There is no CSI: Kandahar. A civilian court has far tighter rules of evidence.
KSM and his co-conspirators so far have refused legal counsel and at one point tried to plead guilty. They may again. But an army of self-declared defenders of human rights from Yale Law and Shearman & Sterling will clamor to represent them. Those lawyers are certain to challenge all evidence obtained after KSM's March 2003 capture on grounds that it was produced by "torture," if you call waterboarding torture.
As he said at a hearing in 2007, "I was responsible for the 9/11 operation from A to Z." But even that admission will probably be challenged on grounds that the trauma of his "torture" means he wasn't capable of "informed consent." Oh, and once he got to Gitmo in 2006, he may not have been read his Miranda rights in full. The possibility exists that one or more of these detainees could be acquitted on procedural grounds, which would be a travesty of justice.
One certain outcome is that an open civilian trial will provide valuable information to terrorists across the world about American methods and intelligence. Precisely because so much other evidence may not be admissable, prosecutors may have to reveal genuine secrets to get a conviction. Osama bin Laden learned a lot from the 1995 prosecution in New York of the "blind cleric" Sheik Omar Abdel Rahman for the first World Trade Center attack. His main tip was that the U.S. considered bin Laden a terrorist co-conspirator, leading him to abandon his hideout in Sudan for Afghanistan.
Terrorists also love a big stage, and none come bigger than New York. Zacarias Moussaoui, the so-called 20th hijacker, made his civilian trial a spectacle. Not even the best judge can entirely stop KSM and others from doing the same. And Mr. Holder has invited grave and needless security risks by tempting jihadists the world over to strike Manhattan while the trial is in session.
Most Americans, we suspect, can overlook the legal niceties and see this episode through the lens of common sense. Foreign terrorists who wage war on America and everything it stands for have no place sitting in a court of law born of the values they so detest. Mr. Holder has honored mass murder by treating it like any other crime.
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Power Line Blog: John Hinderaker, Scott Johnson, Paul Mirengoff
http://www.powerlineblog.com
Trying KSM: Why? An insane protocol
November 18, 2009 Posted by Scott at 3:18 PM
In his press conference this past Friday and in his testimony before the Senate Judiciary Committee today, Attorney General Holder has explained his decision to refer KSM and his 9/11 co-conspirators to trial based on a "protocol" released in July.
What protocol? I don't recall reading anything about it at the time it was released, or seeing anything about it in connection with Holder's decision to deliver KSM et al. to federal court in New York for trial cloaked with the constitutional rights of American citizens.
I called the Justice Department this morning to ask for a copy of the protocol and was directed to the document in issue. It is titled "Determination of Guantanamo Cases Referred for Prosecution." The first paragraph describes a process for determining which cases are to be referred for criminal prosecution. The second paragraph sets forth the "Factors for Determination of Prosecution." It reads as follows:
There is a presumption that, where feasible. referred cases will be prosecuted in an Article III [federal] court, in keeping with traditional principles of federal prosecution. Nonetheless, where other compelling factors make it more appropriate to prosecute a case in a reformed military commission, it may be prosecuted there. That inquiry-turns on the following three broad sets of factors, which are based on forum-selection factors traditionally used by federal prosecutors:
A. Strength of Interest. The factors to be considered here are the nature of the offenses to be charged or any pending charges; the nature and gravity of the conduct underlying the offenses; the identity of victims of the offense; the location in which the offenses occurred; the location and context in which the individual was apprehended; and the manner in which the case was investigated and evidence gathered, including the investigating entities.
B. Efficiency. The factors to be considered here are protection of intelligence sources and methods; the venue in which the case would be tried; issues related to multiple-defendant trials; foreign policy concerns; legal or evidentiary problems that might attend prosecution in the other jurisdiction: and efficiency and resource concerns.
C. Other Prosecution Considerations. The factors to be considered here are the extent to which the forum, and the offenses that could be charged in that forum, permit a full presentation of the wrongful conduct allegedly committed by the accused, and the available sentence upon conviction of those offenses.
Despite the bare bones nature of the enumerated factors and the lack of detail regarding how they are to applied, this is a shocking document. The operative presumption is a rule in favor of criminal prosecution. Nothing could more clearly indicate the Obama administration's treatment of the war on terrorism as a venture in aw enforcement. In the words of the late John Lennon: "WAR IS OVER! (if you want it)."
Given the referral of the case against KSM et al. for prosecution in federal court, we can do a little reverse engineering to figure out how the enumerated factors are apparently applied by the Obama administration. If the attack occurred in the United States, it weighs in favor of criminal prosecution. If the attack focused on American civilians, it weighs in favor of criminal prosecution. (It is less clear to me how the other factors are weighed and applied in practice.) Application of these factors can convert heinous acts of war and war crimes into criminal offenses with respect to which the perpetrators are subject to the protections of the Constitution of the United States.
That way madness lies. The Obama administration is engaged in a venture that will simultaneously undermine the prosecution of the war in which we are engaged while it blurs the distinction between war and crime. It is a venture that works a great burden on the federal courts and prosecutors. To what end?
With a few exceptions, Attorney General Holder has been exceedingly wary of articulating the application of the "factors" to KSM et al. other than by general reference to the "protocol." As we pointed out, what Holder has said about application of the factors makes no sense at all. Attacks on Americans in the United States are presumably to be treated as crimes subject to prosecution in federal court. Why? What is the underlying rationale? Again, Holder has been wary of articulating it.
Whatever it is, notice should be taken. The Obama administration's "protocol" sends up a red flag signaling a great danger to the people of the United States.
UPDATE: Andrew McCarthy comments here.
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The core issue is that the American legal system is not structured to fight the global jihad. The Clinton administration tried to indict al qaeda into submission. I think 9/11 demonstrated how unsuccessful that strategy was. The criminal justice system and the military both have roles in fighting the war, but we have to fight the war by aggressive, intelligence driven strikes. Just as they use asymmetrical tactics against us, we must use asymmetrical tactics against them. The way to fight and win is by hunting them down, capturing and killing their networks. You don't do that by trying to appease the ACLU.
We could never teach the jihadists to love us, we can however teach them to fear us. They have no legal standing under the rules of law. We can catch them, interrogate them and kill them as needed. We should not hesitate to do so.
http://corner.nationalreview.com/post/?q=M2UxNzE4YjJjODJhYmIyZDFjZmU2NTdmMzk5YTQyZTc=
Tuesday, January 05, 2010
Moussaoui Conviction Upheld [Andy McCarthy]
The Fourth Circuit U.S. Court of Appeals has affirmed the conviction and sentence of 9/11 conspirator Zacarias Moussaoui. Enthusiasts of the law-enforcement approach to terrorism will undoubtedly claim this development as more evidence that their strategy works. To the contrary, I have argued several times (see, e.g., here and here) that we dodged a bullet with Moussaoui — i.e., if he had not surprised everyone by pleading guilty, if he had instead insisted on proceeding with his trial (not just the penalty phase but the guilt phase), the case might well have ended disastrously.
The Fourth Circuit's 78-page decision bears me out. The appellate court notes that Moussaoui claims it was error for the trial judge to interfere with his unqualified right to represent himself; "to have personal, pretrial access to classified, exculpatory evidence"; and to be able to summon witnesses like co-conspirator Khalid Sheikh Mohammed for trial testimony. The Fourth Circuit acknowledges that all these claims have merit, but the court finds that Moussaoui, by pleading guilty, waived any claim of prejudice. Opinion at pp. 24–28. Even more alarming, the Fourth Circuit concedes that its waiver rationale is inconsistent with a decision by the Ninth Circuit on which Moussaoui relies — i.e., if the Fourth Circuit had followed the Ninth Circuit, there's a good chance it would have had to agree that, regardless of the guilty plea, Moussaoui's convictions should be reversed.
The Fourth Circuit also reminds us that the trial judge initially struck the death penalty from the case because the government refused to give Moussaoui access to the al-Qaeda prisoner witnesses. The Fourth Circuit reversed the judge at the time, but on the condition that it would be open to revisiting that conclusion if the government failed to provide Moussaoui with all the classified exculpatory information to which he was entitled. At that critical moment, Moussaoui decided to plead guilty. That is, we never found out what would have happened if Moussaoui had insisted on a trial at which he'd have access to all these witnesses and other national-defense information. The guilty-plea is deemed to have waived any claim by Moussaoui that he was denied the information to which he was entitled.
In the next case — like, say, KSM's civilian trial — the defendants will be smart enough not to plead guilty. They will insist on getting every piece of intelligence they're entitled to. And the prosecutors will look at this ruling on Moussaoui's appeal and realize they'd better give it to them or risk having the case thrown out. That's what the law-enforcement approach buys you.
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That seems like a sound reading to me.
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Who here thinks the founding fathers would have wanted jihadists to enjoy constitutional protections? "Lawfare" will be the death of us.
http://www.nydailynews.com/news/ny_crime/2010/01/05/2010-01-05_200m_a_year_for_terror_trial_here.html?print=1&page=all
Security for trial of 9/11 mastermind Khalid Shaikh Mohammed would cost $200M a year: sources
BY Michael Saul
NEWS POLITICAL CORRESPONDENT
Tuesday, January 5th 2010, 4:00 AM
Security for the federal trial of self-proclaimed 9/11 mastermind Khalid Shaikh Mohammed and four accused cohorts will run $200 million a year, sources told the Daily News.
The NYPD's newly revised projection is almost triple the estimate of $75 million in November, after Attorney General Eric Holder announced he would move the prisoners from Guantanamo to Manhattan for trial.
The legal process is expected to play out over more than a year.
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http://www.politico.com/blogs/politicolive/0110/Brenan_deal_on_the_table_for_terror_suspect.html#
Brennan: Deal 'on the table' for terror suspect
The U.S. Government is offering the suspect charged with attempting to bomb an aircraft on Christmas Day, Omar Abdulmutallab, some kind of incentives to share what he knows about Al Qaeda, White House counterterrorism adviser John Brennan said Sunday.
Asked why Abdulmutallab should cooperate given his right, as criminal defendant, to remain silent, Brennan replied: "He doesn't have to but he knows there are certain things that are on the table... if he wants to engage with us in a productive manner, there are ways he can do that."
Asked if Abdulmutallab's willingness to talk changed once he had an attorney, Brennan declined to answer. "I'm not going to address what he did before or after he talked with a lawyer," the adviser said.
Brennan declined to say what criteria are used to decide whether a prisoner should be taken into criminal court or before a military commission. "There are no downsides or upsides in particular cases," he said. "What we're trying to do is make the right determination in particular cases."
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http://online.wsj.com/article/SB10001424052748703436504574640560502410466.html?mod=rss_opinion_main
The Ramzi Yousef Standard
The Administration has ways of making terrorists not talk.
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By JAMES TARANTO
Two weeks from today is the deadline for emptying the terrorist detention facility at Guantanamo Bay, a cutoff that the newly inaugurated President Obama established as one of his first acts in office. No one anymore expects his administration to meet the deadline, and Newsweek's Michael Isikoff reports that there is increasing doubt as to whether it will carry out the promise at all. "I'm beginning to think that Guantánamo is not ever going to be closed," a Bush administration lawyer and Guantanamo foe, tells Isikoff: "I would bet some money that it's not going to get closed in the Obama presidency":
"To some extent, I think the administration has blown it," adds Marc Falkoff, a lawyer who represents some of the Yemeni detainees at Gitmo. "It has delayed, and they've gotten themselves into a reactive state and you can't get anything done when you're reacting to political winds. . . . It looks like Guantánamo will be around for the foreseeable future."
Obama's promise has run up against reality in several different ways. The revelation that former detainees now based in Yemen were involved in planning the Christmas attack in Detroit prompted the administration to announce a halt to repatriation of Yemenis. (In fairness, we hasten to note that the ex-detainees who rejoined the fight were released while George W. Bush was president.) It turns out there really are terrorists at Guantanamo--who knew?
Well, Democrats in Congress knew (though who knew they knew?). Isikoff reports that the administration cannot legally carry out its plan to move detainees to Illinois's Thomson Correctional Center:
The administration is already blocked from moving any Guantánamo detainees to the U.S. for purposes other than putting them on trial. That's the result of a rider to a congressional appropriations bill that passed overwhelmingly last spring and which expires Sept. 30.
In order to move the Yemenis and other Gitmo detainees to Thomson, the administration needs to persuade the Congress to lift the rider--in an election year, no less--a much more difficult task when the proposal is to move more than 100 detainees to the U.S. rather than 20 or 30.
Opposition to Obama's terrorist-importation plan is bipartisan, notes Isikoff: "If Republicans make big gains in the fall elections, as many analysts now predict, the odds of lifting the anti-Gitmo rider would become even steeper."
But here's the kicker. It turns out the detainees themselves prefer to stay put:
Many of the detainees may not even want to be transferred to Thomson and could conceivably even raise their own legal roadblocks to allow them to stay at Gitmo.
Falkoff notes that many of his clients, while they clearly want to go home, are at least being held under Geneva Convention conditions in Guantánamo. At Thomson, he notes, the plans call for them to be thrown into the equivalent of a "supermax" security prison under near-lockdown conditions.
To the limited extent that the Geneva Conventions have been held to protect unlawful enemy combatants, the detainees would enjoy that protection at Thomson too. They would also have additional rights under U.S. law, since they would be under the jurisdiction of the local U.S. district court rather than the special federal jurisdiction created by the Military Commissions Act of 2006. As a practical matter, though, their lives are cushier at Guantanamo than they would be at Thomson, in part because the risk of escape from a military facility in the middle of nowhere is considerably less than from a prison in the American heartland.
Podcast
James Taranto on Obama and Guantanamo.
.Is there any argument left for closing Guantanamo? Claims of detainee abuse were mostly bunk to begin with (remember when Isikoff's magazine claimed falsely that an interrogator had flushed a Koran down a toilet?), and any irregularities have long since been remedied. The president is reduced to making the frivolous claim that the existence of Guantanamo is dangerous because it is somehow useful to al Qaeda's recruiting efforts.
Ultimately, the case against Guantanamo can be reduced to an ad hominem attack. Obama and his supporters loathe it because it is a symbol of the hated George W. Bush. For the president of the United States, it is past time to move on from petty grievances and deal in a serious and forthright way with the demands of American national security.
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So, what are the liberals going to do now? Turns out the Gitmo terrorists actually like it there? What to do now, Obama?
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Politically Correct Killing? -- By: Victor Davis Hanson
National Review Online 3/3/10 3:00 AM webmaster@nationalreview.com (Victor Davis Hanson)
By all accounts, President Obama has vastly increased the number of Predator drone strikes during his 13 months in office and expanded the theater of missile operations by thousands of square miles. Indeed, since inauguration day, 2009, Predator and Reaper drone attacks may have killed over 500 suspected terrorists in Waziristan and Pakistan.
In January of this year alone, the United States conducted ten strikes, and may have killed some 70 suspected al-Qaeda or Taliban terrorists -- along with additional unknown others in their vicinity. When we killed Baitullah Mehsud, the leader of the Taliban in Pakistan, last summer, eleven others were blown up with him, among them his wife and father-in-law -- and, earlier, dozens of others were killed in strikes that failed to target him. In the first two months of 2010, the Obama administration conducted almost half the number of strikes that were conducted in all of 2008, the last full year of the Bush administration.
Why has Obama expanded a killing program that seemingly is at odds with his own past statements (“We’ve got to get the job done there, and that requires us to have enough troops so that we're not just air-raiding villages and killing civilians, which is causing enormous pressure over there”) -- as well as with his general efforts to envision the war on terror as more a criminal-justice operation where terrorists are tried in civilian courts and given their Miranda rights?
First, drone aircraft reflect our technological superiority and sensitivity about suffering casualties -- and give the U.S. enormous advantages in an asymmetrical war that often favors the enemy. Drones are far cheaper than conventional attack planes, and if they are downed, they cost no American lives.
Second, because of improved technology in the Predator program, a substantial increase in the number of our drones, and increased cooperation from the Pakistani government, the United States is now able to target far more suspected terrorists -- and kill them -- than ever before.
Third, killing suspected terrorists is far easier than capturing and detaining them. Apparently the Obama administration has concluded that dead men need no cells in Guantanamo, no interrogations, no Miranda rights, no sympathetic ACLU lawyers, and no trials in New York.
Fourth, the Obama administration apparently has been won over to the Bush notion that the number of terrorists is finite. Just as the Bush administration believed that the killing of top al-Qaeda operatives in Iraq -- Abu Musab al-Zarqawi for one -- weakened the insurgency, so too the Obama administration now believes that key individuals are unique, and that their lost terrorist expertise is not automatically replaced.
Fifth, the Obama administration apparently understands that there will be few political attacks from the Left on the Predator targeted-killing policy of the sort once voiced by candidate Obama. Obama understands that most of the loud leftwing criticism of the Bush anti-terrorism policy was less principled than political in nature, part of a larger effort to discredit the administration in general. Thus, the Constitution-shredding Bush-Cheney protocols of yesteryear -- renditions, military tribunals, intercepts, wiretaps, troops in Iraq, Guantanamo -- are apparently no longer subversive, but instead are considered useful tools in maintaining U.S. security.
Note that the characterization of the attacks as “assassinations” is not hyperbole; it is a more descriptive term than “bombings.” We are not always focusing on generic terrorist training camps and compounds to eliminate anonymous killers, but often targeting specific individuals whose names and profiles we know -- just as, say, the 1943 American P-38 fighter-squadron assassination of Admiral Yamamoto in the Pacific (“Operation Vengeance”) was different in character from the usual fighter and bomber missions against unknown Japanese.
So plenty of issues are raised by the Obama administration’s escalation of targeted assassinations that heretofore have not been fully voiced.
(1) The most obvious is the contradiction not just between the rhetoric of candidate Obama and President Obama (that is now old hat, as we have seen with renditions, tribunals, Guantanamo, etc.), but between Obama’s refashioning of the war on terror itself and the new greater reliance on targeted airborne assassinations. Investigations of Bush-administration officials who approved the waterboarding of three known terrorist masterminds responsible for thousands of American deaths seem incompatible with the more lethal tactics of executing suspected terrorists (and their families) in Pakistan and Waziristan. One difference, of course, as noted above, is that terrorists we execute are not technically in our custody. True, but in today’s sophisticated technological world, once the televised image of someone in Waziristan is beamed into Nevada, the soldier with his hand on the firing button seems to have more jurisdiction over a suspected terrorist than a jailer does over a known one in Guantanamo.
(2) I think the Obama administration will have to cease the commonplace U.S. criticism of targeted assassinations abroad, such as the objections we used to make to the Israelis’ missile attacks on Hamas officials. When one removes the word “war” from “war on terror,” and begins Mirandizing would-be mass murderers such as the Christmas Day bomber, then conflict devolves into the realm of espionage and criminal justice. Thus the line between a team of Israeli agents executing a known Hamas kingpin in Dubai and a squadron of Predators taking out dozens of suspected terrorists in Pakistan seems somewhat blurred. Was the conflict in Gaza and its aftermath any less a “war” than our own efforts in Afghanistan? More to the point, in the context of Obama’s voicing sharp criticism of the previous administration, promising Mr. Abdulmutallab his Miranda rights, and planning to try Khalid Sheikh Mohammed in New York, his administration’s assassination plans strike a false note. One expects Texans in loudly announced “wars on terror,” not Nobel peace laureates in “overseas contingency operations,” to order the summary execution of suspects -- and anyone unlucky enough to be nearby when the Hellfire missile hits.
(3) Once the Obama administration played to the media by announcing preliminary investigations of Bush-era CIA personnel and lawyers for the waterboarding of three terrorists, a dangerous precedent was established. One of the reasons the administration has not clarified its expanded Predator policy may well be that no liberal jurist now serving in the Justice Department wants his own imprint on a policy that, according to Obama’s past accusations, would be considered suspect in nature and its advocates perhaps criminally culpable at some future date. (Indeed, according to the current protocols of liberal jurisprudence, some current Department of Justice grandee might in a few years find a summons delivered to his Ivy League dean’s office, charging him with authorship of an “illegal” policy of targeted killing.)
I wholeheartedly support the president’s expanded use of Predators against suspected terrorists in Pakistan and its environs -- if we agree that we are in a global war on radical Islamic terrorism, and are also consistent in seeing our adversaries as non-uniformed enemy combatants not subject to the normal rules of war. But the expansion of targeted assassinations does not square with the administration’s past rhetoric and its present interest in seeing anti-terrorism as more akin to criminal justice than war.
In short, we need an examination of our entire policy from an administration that has expanded a controversial wartime tactic without the sort of legal clarifications it once insisted were essential in operations professed not to be exactly war.
-- NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution, the editor of Makers of Ancient Strategy: From the Persian Wars to the Fall of Rome, and the author of The Father of Us All: War and History, Ancient and Modern.
http://article.nationalreview.com/426666/politically-correct-killing/victor-davis-hanson
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By Debra Burlingame and Thomas Joscelyn
On the evening of Jan. 26, 2006, military guards at Guantanamo Bay made an alarming discovery during a routine cell check. Lying on the bed of a Saudi detainee was an 18-page color brochure. The cover consisted of the now famous photograph of newly-arrived detainees dressed in orange jumpsuits—masked, bound and kneeling on the ground at Camp X-Ray—just four months after 9/11. Written entirely in Arabic, it also included pictures of what appeared to be detainee operations in Iraq. Major General Jay W. Hood, then the commander of Joint Task Force-Guantanamo, concurred with the guards that this represented a serious breach of security.
Maj. Gen. Hood asked his Islamic cultural adviser to translate. The cover read: "Cruel. Inhuman. Degrades Us All: Stop Torture and Ill-Treatment in the 'War on Terror.'" It was published by Amnesty International in the United Kingdom and portrayed America and its allies as waging a campaign of torture against Muslims around the globe.
"One thread that runs through many of the testimonies from prisons in Afghanistan and Iraq, and from Guantanamo," the brochure read, "is that of anti-Arab, anti-Islamic, and other racist abuse."
How did the detainee get it? More importantly, who gave it to him?
David Klein
.Majeed Abdullah Al Joudi, the detainee in whose cell the brochure was first found, told guards he received the brochure from his lawyer. An investigation by JTF-GTMO personnel revealed that Julia Tarver Mason, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, had sent it to Al Joudi and eight of the firm's other detainee clients through "legal mail"—a designation for privileged lawyer-client communications that are exempt from screening by security personnel. Worse, the investigation showed that Ms. Mason's clients passed it to other detainees not represented by Paul, Weiss lawyers. In all, more than a dozen detainees received a copy.
At Guantanamo, "legal mail" is strictly limited to correspondence between counsel and a detainee that is related to representation of the detainee, privileged documents and publicly filed legal documents. But even "legal mail," according to the rules mandated by Judge Joyce Hens Green in a 2004 protective order, prohibits lawyers from giving detainees information relating to military operations, intelligence, arrests, political news and current events, and the names of U.S. government personnel. Lawyers are forbidden from discussing other detainee cases not directly related to the representation of their own client.
The Amnesty International brochure, handed out at a human rights conference in London, was a political advocacy screed in clear violation of that order, which was formulated to protect force security. Maj. Gen. Hood made a command decision. He banned the Paul, Weiss lawyers from access to Guantanamo. The DOJ notified the firm.
Paul, Weiss immediately went on the offensive, backed by what one former Defense Department official, who requested anonymity, called "an armada of habeas attorneys." They sued the government, demanding that it defend the decision to eject lawyers from Gitmo, making the straight-faced claim that the Amnesty International brochure was a legitimate "report" that was "directly related" to their clients' defense. But their bottom line argument amounted to this: A military commander at a secure overseas military facility in a time of war couldn't remove disruptive lawyers who were inciting captured enemy detainees and endangering the safety and security of military personnel unless he first got permission from a federal judge.
In a sworn affidavit submitted to the D.C. District Court and obtained by the writers of this article in a Freedom of Information Act request, Maj. Gen. Hood did not equivocate when it came to the Amnesty International pamphlet. "The very nature of this document gives tremendous moral support to those who would strike out against our country," he stated. "It is not a factual report. Instead it is filled with second and third hand accounts, photos of protests that were staged, inflammatory photos from Iraq and provocative story captions."
Maj. Gen. Hood noted that many of the captured al Qaeda terrorists held at the camp had been "specifically trained on the Manchester Manual [an al Qaeda training manual discovered at a safe house in Britain]," which "encourages detainees to claim torture and abuse." He warned that "[e]xamples and vignettes of alleged abuse of other detainees" could be used "to fabricate their own claims of abuse and torture."
In fact, from al Qaeda's perspective, the Amnesty International brochure was better than the Manchester Manual. It cued detainees that the abuses at Abu Ghraib "were not an aberration." The brochure told them that images from the Iraqi prison were consistent with "numerous allegations of torture and ill-treatment reported from detention centres in Afghanistan, Iraq and at Guantanamo Bay."
The message to the detainees was clear: If you want to claim you are being tortured, here is a vast menu of examples from which to choose.
But Maj. Gen. Hood's immediate concern about the magazine's "propaganda and misinformation" was the strong potential that it would incite detainees to act out against U.S. personnel in his facility. The Islamic cultural adviser agreed, telling Maj. Gen. Hood that "the tone of the magazine was highly inflammatory" and "would cause a negative reaction, especially amongst the more hard-core terrorist factions within the camp."
That was an understatement. Four months earlier, a core group of detainee leaders recruited as many as 131 detainees to engage in a coordinated hunger strike. The self-starvation was intended to make the detainees look like victims, win sympathy for their cause, and force the U.S. government to choose between letting them die or letting them go. The tactic worked to perfection. Human rights activists created a media firestorm with completely fabricated reports about Guantanamo medical staff using "forced feedings" to "torture" detainees.
Ms. Mason herself inflamed tensions with the hunger strikers during a visit to Guantanamo in October 2005. She told one of the detainees, Yousef Al Shehri, that the U.S. government had no court authority to feed him using a nasal tube, according to Justice Department documents. As a result, Al Shehri pulled out his feeding tube, persuaded detainees in his cell block to do the same and exhorted them to physically resist efforts to reinsert the tube. DOJ lawyers would later argue that Ms. Mason's advocacy "resulted in a disruption of camp security and a potential threat to the health of eight hunger-striking detainees."
Despite this history, Paul, Weiss attorneys were apparently so confident that the DOJ could be cowed into submission that they provided the court with exhibits—letters, emails and court filings—documenting gross violations of the protective order by other habeas attorneys whose access was not cut off, ostensibly to show that Paul, Weiss was being treated unfairly.
We obtained Justice Department accounts of some of those incidents under a Freedom of Information Act request. Examples included an incident in which a lawyer sent his detainee client the transcript of a virulently anti-American speech that compared military physicians to Joseph Mengele, the Nazi doctor of Auschwitz, called DOJ lawyers "desk torturers" and suggested that the "abuses carried out by U.S. forces at Abu Ghraib . . . could involve the President in the commission of war crimes."
Other incidents listed in the FOIA material included: a lawyer who was caught in the act of making a hand-drawn map of a detention camp's layout, including guard towers; a lawyer who sent a letter to his detainee client telling him that "we cannot depend on the military to do the right thing" and conveying his message of support to other detainees who were not his clients; lawyers who posted photos of Guantanamo security badges on the Internet; lawyers who provided news outlets with "interviews" of their clients using questions provided in advance by the news organization; and a lawyer who gave his client a list of all the detainees.
If the stated intent was to show that the government had singled out Paul, Weiss attorneys, the unstated purpose was to demonstrate something even more significant to the government's lawyers. They were outnumbered and outgunned. The Gitmo bar had grown to include some 400 lawyers from as many as 50 law firms that were subsidized by the millions of dollars earned from their paying corporate clients. They had the legal talent, the support of the international press and the judicial wind at their backs. They could bury the DOJ in paper. If one lawyer was taken out, she could be replaced by another.
"They were beaten down by the litigation," said the former Defense Department official who asked to remain anonymous. "If I'd gotten caught passing war news to detainees, my security clearance would have been pulled."
But why would American lawyers, after 9/11 and the brutal slaughter of 3,000 fellow citizens, hand members of al Qaeda information about the war in Iraq and Afghanistan? The records indicate that attorneys were printing news off the Internet and passing it to detainees at the same time that U.S. forces in Iraq were sustaining devastating casualties from IED attacks.
"They would bring contraband in their briefcases, in manila envelopes," an active-duty officer familiar with Defense Department records on attorney access violations told us. "They did it because they knew the detainees were hungry for news and they wanted to establish trust."
The desire to establish trust is evident in Ms. Mason's own affidavit to the D.C. court concerning the status of her firm's representation of Saudi detainees in habeas cases. The attorneys couldn't remain as attorney of record and go forward with a habeas case if the detainees wouldn't cooperate with them. "While we have made substantial progress in developing rapport and trust with our clients," she stated, "we have not yet been able to secure from all of them written acknowledgment of our representation." She attributes this to "torture and abuse . . . at the hands of the American military" as opposed to the Islamist mindset that sees no distinction between American attorneys in suits and American personnel in uniform. Indeed, court records reveal that Yousef Al Shehri wrote to the court, "expressing in no uncertain terms that he desires neither representation, nor a lawsuit on his behalf."
Ultimately, the government would reach a settlement with the Paul, Weiss lawyers. Ms. Mason and her team were allowed to resume their trips to Guantanamo in May 2006. But the DOJ's surrender emboldened the Gitmo bar even further. Last August, the Washington Post reported that three lawyers defending Khalid Sheikh Mohammed and his 9/11 co-conspirators showed their clients photographs of covert CIA officers in an attempt to identify the individuals who interrogated them after they were captured overseas. Lawyers working for the John Adams Project, formed to support the legal team representing KSM and his cohorts, provided the defense attorneys with the photographs, according to the Post. None of the attorneys under investigation were identified in the Post report.
In the last several days, the debate has taken a detour about what some have called a "shameful attack" on the "noble attorneys" who have chosen to defend "unpopular people." A national security organization, Keep America Safe (of which Ms. Burlingame is a board member), used the phrase "Al Qaeda 7" in an Internet ad to describe seven unnamed Department of Justice political appointees who previously represented or advocated on behalf of terrorists.
The purpose of the ad was to prod Attorney General Eric Holder to disclose to the public which detainee attorneys he has hired to work on behalf of the American people, and whether they are involved in the policy-making decisions that will affect the nation's safety and security while we are at war. He was asked for this information by several members of the U.S. Senate, and he was stonewalling.
The attorney general has the right to select whomever he chooses to work in his department, and to set policy as he sees fit. He does not, however, have the right to do it in the dark. The policies he advances must face the scrutiny of the American people, his No. 1 client.
The public has a right to know, for instance, that one of Mr. Holder's early political hires in the department's national security division was Jennifer Daskal, a former attorney for Human Rights Watch. Her work there centered on efforts to close Guantanamo Bay, shut down military commissions—which she calls "kangaroo courts"—and set detainees who cannot be tried in civilian courts free. She has written that freeing dangerous terrorists is an "assumption of risk" that we must take in order to cleanse the nation of Guantanamo's moral stain. This suggests that Ms. Daskal, who serves on the Justice Department's Detainee Policy Task Force, is entirely in sync with Mr. Holder and a White House whose chief counterterrorism official (John Brennan) considers a 20% detainee recidivism rate "not that bad."
It is entirely legitimate to ask who else among Mr. Holder's hires from the Gitmo bar is shaping or influencing national security policy decisions. Meanwhile, the public can decide whether the lawyers at Paul, Weiss who are volunteering at Guantanamo are an example of the legal profession's noblest traditions.
We spoke to Ms. Mason's executive assistant on Friday seeking her comments. Multiple calls and emails had not been returned as this paper went to press last night.
On Feb. 20, 2007, a post on the Paul, Weiss Web site proudly announced "Paul, Weiss achieves more victories for Guantanamo detainees." Two detainees were released from Gitmo to their home in Saudi Arabia. One was Majeed Abdullah Al Joudi, a recipient of the Amnesty International "report." The Web site needs an update. The Pentagon has identified Al Joudi as a "confirmed" recidivist who is "directly involved" with the facilitation of "terrorist activities."
Yousef Al Shehri, the detainee who led his cell block in the feeding tube rebellion, was also released in November 2007. In early 2009 he was listed on the Saudi Kingdom's list of 85 "most wanted" extremists. Yousef was killed last October during a shootout with Saudi security forces on his way to a martyrdom operation. He and another jihadist, disguised as women and wearing suicide vests, killed a security officer in the clash. Yousef's brother-in-law, Said Al Shehri, also released from Gitmo, is currently the second in command of al Qaeda in the Arabian Peninsula, the branch that launched the Christmas Day airline attack last year.
Ms. Burlingame, a former attorney, is the sister of Charles F. "Chic" Burlingame III, pilot of American Airlines flight 77, which was crashed at the Pentagon on September 11, 2001. She is a co-founder of Keep America Safe. Mr. Joscelyn is a senior fellow at the Foundation for Defense of Democracies.
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***The public has a right to know, for instance, that one of Mr. Holder's early political hires in the department's national security division was Jennifer Daskal, a former attorney for Human Rights Watch. Her work there centered on efforts to close Guantanamo Bay, shut down military commissions—which she calls "kangaroo courts"—and set detainees who cannot be tried in civilian courts free. She has written that freeing dangerous terrorists is an "assumption of risk" that we must take in order to cleanse the nation of Guantanamo's moral stain. This suggests that Ms. Daskal, who serves on the Justice Department's Detainee Policy Task Force, is entirely in sync with Mr. Holder and a White House whose chief counterterrorism official (John Brennan) considers a 20% detainee recidivism rate "not that bad."***
I hear the legal arguments on cable back and forth concerning Liz Cheney's views etc.
I don't think one needs to be an attorney to understand the reasoning of the arguments one way or the other.
That said I don't think "justice" is served with having endless streams of high priced and high priced attorneys argue ad nauseum every conceivable position as some sort of defense.
I cannot believe most Americans would not agree that the legal strategy can be reduced to a form of bullying adverseries for money or political or other form of idealogy.
I also beleive that most Americans would agree this legaleeze stuff is a form of weakness on our battle against our enemies - not a strenght as the left wants us to beleive.
Crafty, as an attorney where do you come down on this issue?
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high priced and high "powered"
Yes I get that much of the work was done - what is the phrase - bono?
Although it is hared to beleive that some of this what not done for some sort of networking advantage either with the gov. or amongst law firms or something else I don't know about such as political gain.
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My take FWIW: Even defendants who seem guilty of the nastiest of crimes, deserve able defense.
That said, one has to be engaged in some serious cranial rectal interface to not suspect that these attorneys are motivated by something other than that; therefore a very fair and very serious question is raised when they are selected to work at DOJ. The various dubious elements to AG Holder's background and performance on the job add to the stench.
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Crafty,
Thanks for your opinion. I have respect for some attornies. The medical profession is hardly filled with a total bunch of saints so I don't mean to come off as simply going after attornies.
I don't think we exemplify a system that is a model of a totally fair and great justice process as much as simply *stupid* and laughable to anyone with a brain when we send armies of attornies to defend enemies that even the vast majority of our own citizens could not even AFFORD.
Again, the sheer stupidity of it all... So let's give our enemies who want to kill us better legal counsel than 95% of our own people could not even afford!?!?
Palin said it right during her RNC speech for VP. We don't need to defend our nation with legal suits (more or less).
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As the saying goes "It's not a justice system, it's a legal system."
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Man on the street here.......
I have always regarded Gitmo as a resonably secure place to store active terrorists and their associates until we get to some phase of this war on terror that we can safely release them. Some of the higher level terrorists might need interrogated, so be it, as long as no permanent harm or disability is caused by the methods. We are not about revenge or any of that stuff, just keeping combatants off the field until the war is over, and getting what information we can from those who may have useful information.
I see these various attorneys and others as being actively subversive in the service of the enemy. we are imprisoning these people in a way accepted globally for several centuries, in accordance with international conventions. Given these people are working against a long standing, "civilized" agreement, what are they REALLY up to? Subversion of the current status quo, maybe? which puts them in the same equivalents status as the people in gitmo? Why are they being listened to, then? THAT is where a lot of my discontent comes from.
I see this as being made a legal/ human rights issue when it is simply a POW issue. We are treating the POW's we take far better than any of our POW's have EVER been treated. Our people are often beheaded for the press, and treated with permanently harmful abuse, etc.
So which side is in the right/wrong? Neither, but one is trying to be generally ethical, and the other is being deliberately brutal. Which one would you want to be Identified with?
It is strange that Brutal side advocates are finding positions in a "free" government eh? Anothe point of my diquiet and discontent.........
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Federal Judge Finds N.S.A. Wiretaps Were IllegalBy CHARLIE SAVAGE and JAMES RISEN
Published: March 31, 2010
NYT
LinkedinDiggFacebookMixxMySpaceYahoo! BuzzPermalink. WASHINGTON — A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush.
In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.
The ruling delivered a blow to the Bush administration’s claims that its surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.
The ruling by Judge Walker, the chief judge of the Federal District Court in San Francisco, rejected the Justice Department’s claim — first asserted by the Bush administration and continued under President Obama — that the charity’s lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.
The judge characterized that expansive use of the so-called state-secrets privilege as amounting to “unfettered executive-branch discretion” that had “obvious potential for governmental abuse and overreaching.”
That position, he said, would enable government officials to flout the warrant law, even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”
Because the government merely sought to block the suit under the state-secrets privilege, it never mounted a direct legal defense of the N.S.A. program in the Haramain case.
Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York Times disclosed its existence in December 2005: that the president’s wartime powers enabled him to override the FISA statute. But lawyers for Al Haramain were quick to argue that the ruling undermined the legal underpinnings of the war against terrorism.
One of them, Jon Eisenberg, said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”
“Judge Walker is saying that FISA and federal statutes like it are not optional,” Mr. Eisenberg said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”
A Justice Department spokeswoman, Tracy Schmaler, noted that the Obama administration had overhauled the department’s procedures for invoking the state-secrets privilege, requiring senior officials to personally approve any assertion before lawyers could make it in court. She said that approach would ensure that the privilege was invoked only when “absolutely necessary to protect national security.”
The ruling is the second time a federal judge has declared the program of wiretapping without warrants to be illegal. But a 2006 decision by a federal judge in Detroit, Anna Diggs Taylor, was reversed on the grounds that those plaintiffs could not prove that they had been wiretapped and so lacked legal standing to sue.
Several other lawsuits filed over the program have faltered because of similar concerns over standing or because of immunity granted by Congress to telecommunications companies that participated in the N.S.A. program.
By contrast, the Haramain case was closely watched because the government inadvertently disclosed a classified document that made clear that the charity had been subjected to surveillance without warrants.
Although the plaintiffs in the Haramain case were not allowed to use the document to prove that they had standing, Mr. Eisenberg and six other lawyers working on the case were able to use public information — including a 2007 speech by an F.B.I. official who acknowledged that Al Haramain had been placed under surveillance — to prove it had been wiretapped.
Judge Walker’s opinion cataloged other such evidence and declared that the plaintiffs had shown they were wiretapped in a manner that required a warrant. He said the government had failed to produce a warrant, so he granted summary judgment in favor of the plaintiffs.
But Judge Walker limited liability in the case to the government as an institution, rejecting the lawsuit’s effort to hold Robert S. Mueller III, the F.B.I. director, personally liable.
Mr. Eisenberg said that he would seek compensatory damages of $20,200 for each of the three plaintiffs in the case — or $100 for each of the 202 days he said they had shown they were subjected to the surveillance. He said he would ask the judge to decide how much to award in punitive damages, a figure that could be up to 10 times as high. And he said he and his colleagues would seek to be reimbursed for their legal fees over the past five years.
The 2005 disclosure of the existence of the program set off a national debate over the limits of executive power and the balance between national security and civil liberties. The arguments continued over the next three years, as Congress sought to forge a new legal framework for domestic surveillance.
In the midst of the presidential campaign in 2008, Congress overhauled the Foreign Intelligence Surveillance Act to bring federal statutes into closer alignment with what the Bush administration had been secretly doing. The legislation essentially legalized certain aspects of the program. As a senator then, Barack Obama voted in favor of the new law, despite objections from many of his supporters. President Obama’s administration now relies heavily on such surveillance in its fight against Al Qaeda.
The overhauled law, however, still requires the government to obtain a warrant if it is focusing on an American citizen or an organization inside the United States. The surveillance of Al Haramain would still be unlawful today if no court had approved it, current and former Justice Department officials said.
But since Mr. Obama took office, the N.S.A. has sometimes violated the limits imposed on spying on Americans by the new FISA law. The administration has acknowledged the lapses but said they had been corrected.
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Tearing Away the Veil
By JEAN-FRANÇOIS COPÉ
Published: May 4, 2010
MOMENTUM is building in Europe for laws forbidding the wearing of garments that cover the face, like the Islamic burqa and niqab, in public. Just last week, the lower house of the Belgian Parliament overwhelmingly passed a ban on face coverings. And next week, the French Assembly will most likely approve a resolution that my party, the Union for a Popular Movement, has introduced condemning such garments as against our republican principles, a step toward a similar ban.
Amnesty International condemned the Belgian law as “an attack on religious freedom,” while other critics have asserted that by prohibiting the burqa, France would impinge upon individual liberties and stigmatize Muslims, thereby aiding extremists worldwide.
This criticism is unjust. The debate on the full veil is complicated, and as one of the most prominent advocates in France of a ban on the burqa, I would like to explain why it is both a legitimate measure for public safety and a reaffirmation of our ideals of liberty and fraternity.
First, the freedom to dress the way one wants is not what’s at stake here. Our debate is not about a type of attire or the Islamic head scarf that covers the hair and forehead. The latter is obviously allowed in France. The ban would apply to the full-body veil known as the burqa or niqab. This is not an article of clothing — it is a mask, a mask worn at all times, making identification or participation in economic and social life virtually impossible.
This face covering poses a serious safety problem at a time when security cameras play an important role in the protection of public order. An armed robbery recently committed in the Paris suburbs by criminals dressed in burqas provided an unfortunate confirmation of this fact. As a mayor, I cannot guarantee the protection of the residents for whom I am responsible if masked people are allowed to run about.
The visibility of the face in the public sphere has always been a public safety requirement. It was so obvious that until now it did not need to be enshrined in law. But the increase in women wearing the niqab, like that of the ski mask favored by criminals, changes that. We must therefore adjust our law, without waiting for the phenomenon to spread.
The permanent concealment of the face also raises the question of social interactions in our democracies. In the United States, there are very few limits on individual freedom, as exemplified by the guarantees of the First Amendment. In France, too, we are passionately attached to liberty.
But we also reaffirm our citizens’ equality and fraternity. These values are the three inseparable components of our national motto. We are therefore constantly striving to achieve a delicate balance. Individual liberty is vital, but individuals, like communities, must accept compromises that are indispensable to living together, in the name of certain principles that are essential to the common good.
Let’s take one example: The fact that people are prohibited from strolling down Fifth Avenue in the nude does not constitute an attack on the fundamental rights of nudists. Likewise, wearing headgear that fully covers the face does not constitute a fundamental liberty. To the contrary, it is an insurmountable obstacle to the affirmation of a political community that unites citizens without regard to differences in sex, origin or religious faith. How can you establish a relationship with a person who, by hiding a smile or a glance — those universal signs of our common humanity — refuses to exist in the eyes of others?
Finally, in both France and the United States, we recognize that individual liberties cannot exist without individual responsibilities. This acknowledgment is the basis of all our political rights. We are free as long as we are responsible individuals who can be held accountable for our actions before our peers. But the niqab and burqa represent a refusal to exist as a person in the eyes of others. The person who wears one is no longer identifiable; she is a shadow among others, lacking individuality, avoiding responsibility.
From this standpoint, banning the veil in the street is aimed at no particular religion and stigmatizes no particular community. Indeed, French Muslim leaders have noted that the Koran does not instruct women to cover their faces, while in Tunisia and Turkey, it is forbidden in public buildings; it is even prohibited during the pilgrimage to Mecca. Muslims are the first to suffer from the confusions engendered by this practice, which is a blow against the dignity of women.
Through a legal ban, French parliamentarians want to uphold a principle that should apply to all: the visibility of the face in the public sphere, which is essential to our security and is a condition for living together. A few extremists are contesting this obvious fact by using our democratic liberties as an instrument against democracy. We have to tell them no.
Jean-François Copé is the majority leader in the French National Assembly and the mayor of Meaux.
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Question presented: What of Glenn Beck's hypothetical last night in the context of the Kagan nomination and her statement in support of treating someone accused of raising money for AQ as an enemy combatant: What if another Timothy McVeigh strikes? Can the State use what Mukasey describes below to go after those of us who actively support the 912 movement/the Tea Party?
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Shazad and the pre-911 paradigm
By MICHAEL B. MUKASEY
Some good news from the attempted car bombing in Times Square on May 1 is that—at the relatively small cost of disappointment to Broadway theater-goers—it teaches valuable lessons to help deal with Islamist terrorism. The bad news is that those lessons should already have been learned.
One such lesson has to do with intelligence gathering. Because our enemies in this struggle do not occupy a particular country or location, intelligence is our only tool for frustrating their plans and locating and targeting their leaders. But as was the case with Umar Faruk Abdulmutallab, who tried to detonate a bomb aboard an airplane over Detroit last Christmas Day, principal emphasis was placed on assuring that any statements Faisal Shahzad made could be used against him rather than simply designating him an unlawful enemy combatant and assuring that we obtained and exploited any information he had.
On Sunday, Attorney General Eric Holder said that in regard to terrorism investigations he supports "modifying" the Miranda law that requires law enforcement officials to inform suspects of their rights to silence and counsel. But his approach—extension of the "public safety exemption" to terror investigations—is both parsimonious and problematic. The public safety exemption allows a delay in Miranda warnings until an imminent threat to public safety—e.g., a loaded gun somewhere in a public place that might be found by a child—has been neutralized. In terror cases it is impossible to determine when all necessary intelligence, which in any event might not relate to an imminent threat, has been learned.
The lesson from our experience with Abdulmutallab, who stopped talking soon after he was advised of his rights and did not resume for weeks until his family could be flown here to persuade him to resume, should have been that intelligence gathering comes first. Yes, Shahzad, as we are told, continued to provide information even after he was advised of his rights, but that cooperation came in spite of and not because of his treatment as a conventional criminal defendant.
Moreover, once Shahzad cooperated, it made no more sense with him than it did with Abdulmutallab to publicize his cooperation and thereby warn those still at large to hide and destroy whatever evidence they could. The profligate disclosures in Shahzad's case, even to the point of describing his confession, could only hinder successful exploitation of whatever information he provided.
The Shahzad case provides a reminder of the permanent harm leaks of any kind can cause. An Associated Press story citing unnamed law enforcement sources reported that investigators were on the trail of a "courier" who had helped provide financing to Shahzad.
A courier would seem oddly out of place in the contemporary world where money can be transferred with the click of a mouse—that is, until one recalls that in 2006 the New York Times disclosed on its front page a highly classified government program for monitoring electronic international money transfers through what is known as the Swift system.
That monitoring violated no law but was leaked and reported as what an intelligence lawyer of my acquaintance referred to as "intelliporn"—intelligence information that is disclosed for no better reason than that it is fun to read about, and without regard for the harm it causes. Of course, terrorists around the world took note, and resorted to "couriers," making it much harder to trace terrorist financing.
In the hours immediately following the discovery and disarming of the car bomb, media outlets and public figures fell all over themselves to lay blame as far as possible from where it would ultimately be found. Secretary of Homeland Security Janet Napolitano suggested the incident was entirely isolated and directed her agency's personnel to stand down. New York Mayor Michael Bloomberg sportingly offered to wager a quarter on the proposition that the bomb was the work of a solitary lunatic, perhaps someone upset over passage of the health-care bill, and much merriment was had over how primitive the bomb had been and how doomed it was to fail.
This sort of reaction goes back much further than this administration. Consider the chain of events leading to the 1993 World Trade Center bombing and eventually 9/11.
In November 1990, Meir Kahane, a right-wing Israeli politician, was assassinated after delivering a speech at a Manhattan hotel by El-Sayid Nosair, quickly pigeonholed as a lone misfit whose failures at work had driven him over the edge. The material seized from his home lay largely unexamined in boxes until a truck bomb was detonated under the World Trade Center in 1993, when the perpetrators of that act announced that freeing Nosair from prison was one of their demands.
Authorities then examined the neglected boxes and found jihadi literature urging the attacks on Western civilization through a terror campaign that would include toppling tall buildings that were centers of finance and tourism. An amateur video of Kahane's speech the night he was assassinated revealed that one of the 1993 bombers, Mohammed Salameh, was present in the hall when Nosair committed his act, and the ensuing investigation disclosed that Nosair was supposed to have made his escape with the help of another, Mahmoud Abouhalima, who was waiting outside at the wheel of a cab.
Nosair jumped into the wrong cab and the terrified driver pulled over and ducked under the dashboard, at which point Nosair tried to flee on foot and was captured. Salameh was captured when the vehicle identification number on the truck that carried the bomb led investigators to a rental agency, where he showed up days later to try to retrieve the deposit on the truck so that he could finance his escape.
Despite the toll from the first World Trade Center blast—six killed, hundreds injured, tens of millions of dollars in damage—and the murder of Kahane, much sport was made of how inept the perpetrators were.
Nosair and the 1993 Trade Center bombers were disciples of cleric Omar Abdel Rahman, known as the "blind sheikh," who was tried and convicted in 1995 along with nine others for conspiring to wage a war of urban terror that included not only that bombing and the Kahane assassination but also a plot to bomb simultaneously the Holland and Lincoln Tunnels, the George Washington Bridge and the United Nations.
One of the unindicted co-conspirators in that case was a then-obscure Osama bin Laden, who would declare in 1996 and again in 1998 that militant Islamists were at war with the United States. In 1998, his organization, al Qaeda, arranged the near-simultaneous bombing of American Embassies in Kenya and Tanzania.
Despite the declaration of war and the act of war, the criminal law paradigm continued to define our response. Along with immediate perpetrators, and some remote perpetrators including Khalid Sheikh Mohammed, bin Laden was indicted, and the oft-repeated vow to "bring them to justice" was repeated. Unmoved, and certainly undeterred, bin Laden in 2000 unleashed the attack in Yemen on the destroyer USS Cole, killing 17.
That was followed by Sept. 11, 2001, and it appeared for a time that Islamist fanaticism would no longer be greeted with condescending mockery. To the phrase "bring them to justice" was added "bring justice to them." The country appeared ready to adopt a stance of war, and to be ready to treat terrorists as it had the German saboteurs who landed off Long Island and Florida in 1942—as unlawful combatants under the laws of war who were not entitled to the guarantees that the Constitution grants to ordinary criminals.
There have been more than 20 Islamist terrorist plots aimed at this country since 9/11, including the deadly shooting by U.S. Army Maj. Nidal Hasan, those of Abdulmutallab and Shahzad, and those of Najibullah Zazi and his cohorts, Bryant Neal Vinas and his, against commuter railroads and subways in New York; of plotters who targeted military personnel at Fort Dix, N.J., Quantico, Va., and Goose Creek, S.C., and who murdered an Army recruiter in Little Rock, Ark.; of those who planned to blow up synagogues in New York, an office building in Dallas, and a courthouse in Illinois, among others.
Yet the pre-9/11 criminal law paradigm is again setting the limit of Attorney General Holder's response, even to the point of considering the inapposite public safety exception to Miranda as a way to help intelligence gathering. He continues to press for a civilian trial for Khalid Sheikh Mohammed and others who had long since been scheduled to be tried before military commissions.
A significant lesson lurking in Shahzad's inadequacy, and the history that preceded it, is that one of the things terrorists do is persist. Ramzi Yousef's shortcomings in the first attempt to blow up the World Trade Center were made up for by Khalid Sheikh Mohammed. We should see to the good order of our institutions and our attitudes before someone tries to make up for Faisal Shahzad's shortcomings.
Mr. Mukasey was attorney general of the United States from 2007 to 2009.
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Question presented: What of Glenn Beck's hypothetical last night in the context of the Kagan nomination and her statement in support of treating someone accused of raising money for AQ as an enemy combatant: What if another Timothy McVeigh strikes? Can the State use what Mukasey describes below to go after those of us who actively support the 912 movement/the Tea Party?
Unless you knowingly raise money for the Timothy McVeigh or a terrorist group that espouses your ideals, there isn't anything illegal in lawful political speech.
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Understood, of course. But what if Progressives are in charge and start defining us as terrorist threats, e.g. as was seen in that Homeland Security report a few months back and this logic is already established for Islamo-fascism?
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You still have to establish a nexus between the fund raising and the terrorist act. The Animal Liberation Front may bomb a research lab, but this doesn't mean you can then arrest everyone who doesn't like testing on animals. You could however pursue both the bombers and those that provided the funds for the bombing, if the funds were given knowing they would allow for a terrorist act to be committed.
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Agreed that that is the current law.
What is not clear to me however is what a legal category of no Miranda rights for US citizens declared by the State to be X would look like; ditto where they could lose their citizenship, as proposed by Senator Lieberman.
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It's POTH, so caveat lector:
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U.N. Official to Ask U.S. to End C.I.A. Drone StrikesBy CHARLIE SAVAGE
Published: May 27, 2010
WASHINGTON — A senior United Nations official is expected to call on the United States next week to stop Central Intelligence Agency drone strikes against people suspected of belonging to Al Qaeda, complicating the Obama administration’s growing reliance on that tactic in Pakistan.
Philip Alston, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, said Thursday that he would deliver a report on June 3 to the United Nations Human Rights Council in Geneva declaring that the “life and death power” of drones should be entrusted to regular armed forces, not intelligence agencies. He contrasted how the military and the C.I.A. responded to allegations that strikes had killed civilians by mistake.
“With the Defense Department you’ve got maybe not perfect but quite abundant accountability as demonstrated by what happens when a bombing goes wrong in Afghanistan,” he said in an interview. “The whole process that follows is very open. Whereas if the C.I.A. is doing it, by definition they are not going to answer questions, not provide any information, and not do any follow-up that we know about.”
Mr. Alston’s views are not legally binding, and his report will not assert that the operation of combat drones by nonmilitary personnel is a war crime, he said. But the mounting international concern over drones comes as the Obama administration legal team has been quietly struggling over how to justify such counterterrorism efforts while obeying the laws of war.
In recent months, top lawyers for the State Department and the Defense Department have tried to square the idea that the C.I.A.’s drone program is lawful with the United States’ efforts to prosecute Guantánamo Bay detainees accused of killing American soldiers in combat, according to interviews and a review of military documents.
Under the laws of war, soldiers in traditional armies cannot be prosecuted and punished for killing enemy forces in battle. The United States has argued that because Qaeda fighters do not obey the requirements laid out in the Geneva Conventions — like wearing uniforms — they are not “privileged combatants” entitled to such battlefield immunity. But C.I.A. drone operators also wear no uniforms.
Paula Weiss, a C.I.A. spokeswoman, called into question the notion that the agency lacked accountability, noting that it was overseen by the White House and Congress. “While we don’t discuss or confirm specific activities, this agency’s operations take place in a framework of both law and government oversight,” Ms. Weiss said. “It would be wrong to suggest the C.I.A. is not accountable.”
Still, the Obama administration legal team confronted the issue as the Pentagon prepared to restart military commission trials at Guantánamo Bay. The commissions began with pretrial hearings in the case of Omar Khadr, a Canadian detainee accused of killing an Army sergeant during a firefight in Afghanistan in 2002, when Mr. Khadr was 15.
The Pentagon delayed issuing a 281-page manual laying out commission rules until the eve of the hearing. The reason, officials say, is that government lawyers had been scrambling to rewrite a section about murder because it has implications for the C.I.A. drone program.
An earlier version of the manual, issued in 2007 by the Bush administration, defined the charge of “murder in violation of the laws of war” as a killing by someone who did not meet “the requirements for lawful combatancy” — like being part of a regular army or otherwise wearing a uniform. Similar language was incorporated into a draft of the new manual.
But as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition could be construed as a concession by the United States that C.I.A. drone operators were war criminals. Jeh Johnson, the Defense Department general counsel, and his staff ultimately agreed with that concern. They redrafted the manual so that murder by an unprivileged combatant would instead be treated like espionage — an offense under domestic law not considered a war crime.
“An accused may be convicted,” the final manual states, if he “engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.”
Under that reformulation, the C.I.A. drone operators — who reportedly fly the aircraft from agency headquarters in Langley, Va. — might theoretically be subject to prosecution in a Pakistani courtroom. But regardless, the United States can argue to allies that it is not violating the laws of war.
Mr. Alston, the United Nations official, said he agreed with the Obama legal team that “it is not per se illegal” under the laws of war for C.I.A. operatives to fire drone missiles “because anyone can stand up and start to act as a belligerent.” Still, he emphasized, they would not be entitled to battlefield immunity like soldiers.
Mary Ellen O’Connell, a Notre Dame University law professor who has criticized the use of drones away from combat zones, also agreed with the Obama administration’s legal theory in this case. She said it could provide a “small modicum” of protection for C.I.A. operatives, noting that Germany had a statute allowing it to prosecute violations of the Geneva Conventions, but it does not enforce domestic Pakistani laws against murder.
In March, Mr. Koh delivered a speech in which he argued that the drone program was lawful because of the armed conflict with Al Qaeda and the principle of self-defense. He did not address several other murky legal issues, like whether Pakistani officials had secretly consented to the strikes. Mr. Alston, who is a New York University law professor, said his report would analyze such questions in detail, which may increase pressure on the United States to discuss them.
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The OSS killed lawful combatants in WWII, and as they did not wear uniforms fighting behind enemy lines, they were not lawful combatants.
It's not about right or wrong, just doing whatever they can to undercut us in this war.
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Why Has Holder Indicted the Times Square Bomber?
The DOJ is running up against the limits of the civilian justice system
After the initial spate of chest-beating, we hadn’t heard much from the Justice Department about the case of would-be Times Square bomber Faisal Shahzad and the many ways it illustrates how splendidly the criminal justice system performs in terrorism cases — even the cases of enemy combatants who could otherwise be held indefinitely and interrogated for intelligence purposes.
Now comes word from the U.S. attorney’s office for the Southern District of New York that Shahzad has been indicted. He is charged with ten terrorism counts, ranging from bombing and terrorism conspiracies to the transportation and attempted use of a weapon of mass destruction. This is a strange development.
Attorney General Eric Holder has been telling anyone who would listen that Shahzad is cooperating and providing valuable information. Civilian due process has been no obstacle at all, Holder insists: no problem posed by Miranda, the appointment of counsel, the prospect of providing discovery, and the dynamics of plea-bargaining. Yet it is highly unusual to indict a cooperator, precisely because it is so strategically disadvantageous to the government. When someone is cooperating, the standard practice is to strike a deal, complete with a cooperation agreement and a guilty plea, in what is known as a “criminal information,” rather than to file an indictment.
It usually works this way: Once the cooperator has given the Justice Department and the investigators the broad outline of his criminal culpability, and once the government is satisfied that the cooperator is being candid and not holding anything back, the prosecutors and defense counsel agree to a set of charges to which the cooperator will plead guilty. Both sides sign a cooperation agreement. This is a contract, requiring the cooperator to continue providing truthful information in exchange for the government’s commitment to file a cooperation motion. That motion enables, but does not require, the sentencing judge to impose a lenient term of incarceration — i.e., less time than the cooperator would get (life imprisonment in this case, almost certainly) if he weren’t spilling the beans.
A prosecutor indicts people only if he thinks he may have to go to trial against them. Getting an indictment requires putting witnesses before the grand jury and eliciting testimony that is likely to be the subject of defense-counsel scrutiny down the road. You don’t do that if you can avoid it. That’s why cooperating defendants are asked to waive indictment and plead guilty in an information. An information is a charging instrument brought in the name of the U.S. attorney, not the grand jury. It doesn’t subject prosecutors to the burdens and headaches of presenting evidence and testimony.
Usually, the prosecutor and a cooperator’s lawyer also collaborate on an “allocution.” This is a statement by the cooperating defendant given during a guilty-plea hearing, in which the judge asks the defendant to explain in his own words what he did that makes him guilty. The allocution is carefully scripted, because it is anticipated that a cooperating defendant may one day be a witness against other conspirators. The lawyers for these other culprits will be able to use the allocution in cross examination, so the government wants to make sure the cooperator has admitted everything he should admit and implicated everyone he is in a position to implicate. Any omissions could critically damage cases that are based on the cooperator’s testimony.
#pageFiling an information suggests that there’s significant cooperation. An indictment, on the other hand, is the throwdown moment in a criminal case, the opening bell for the first round of a prize fight. It signals that the parties have been unable to work out an agreement and are in an antagonistic posture.
The indictment doesn’t mean that a guilty plea cannot be worked out at some later point. What it probably does mean is that Shahzad’s relationship with the government is on the rocks. We don’t know exactly why this is so, but we can hazard an educated guess: Despite Holder’s protestations to the contrary, immediately bringing a person into the civilian criminal-justice system, with its rigorous due-process rules, is fraught with complications that make it very difficult for the government to gather intelligence without interruption.
Once you arrest a person in the civilian system, he gets a lawyer. That lawyer’s job is not to cooperate with the government. To the contrary, his job is to make the government live up to its burden of proof, to give the defendant the same expertise in manipulating the legal system the government has. A competent defense lawyer strikes a plea deal with the government only after exhaustively studying the case, pressing the government for every possible concession, and deciding that a guilty plea — rather than indictment and trial — is in the defendant’s best interests.
In Shahzad’s case, the government wants intelligence. It wants both to protect national security and to obtain a conviction. Those goals are often in conflict, but that’s not the defense lawyer’s problem. His job is to get the best possible result for his client, which usually means exploiting the government’s problems, not solving them.
Shahzad’s lawyer knows Holder is deeply invested in showing that the criminal-justice system can handle terrorism cases just as well as, or better than, any military system. Counsel also knows (a) that Holder defines success by whether the Justice Department gets a conviction (not by how much valuable intelligence the government obtains), and (b) that Holder has shown a willingness to plead cases on the cheap in order to get a conviction (see, e.g., the case of Ali al-Marri, an al-Qaeda terrorist who was allowed to plead guilty to a relatively minor charge, which resulted in a sentence that renders him eligible for release in about six years).
The government desperately wants Shahzad’s cooperation and his conviction, but hanging tough is cost-free for the defendant at this point. If the government expects him to accept life imprisonment, his lawyer will figure: “We might as well go to trial.” Prosecutors are no doubt telling Shahzad that, if he continues cooperating, the sentencing judge may cut him a break down the road. But defense counsel knows Shahzad will never have as much leverage as he does now. He doesn’t want a speculative possibility of leniency; he wants something concrete, and he wants it up front. He wants a ceiling on the amount of prison time he will have to do — just like al-Marri got.
Of course, the attorney general will not want to give this to him. Shahzad tried to kill hundreds of people. If he were to get a deal that capped his sentence at, say, 20 years, with the possibility of an additional shave by the sentencing judge at some future date, the public would go ballistic. Nevertheless, defense counsel knows that if there is no plea deal, then the discovery rules kick in. Now that he has been indicted, Shahzad will be able to demand of the government all the information in the government’s files that could be material to preparing his defense.
Think that could be a problem? You bet it could. To cite only the most obvious concern, the indictment alleges that Shahzad conspired with and was trained by the Pakistani Taliban. Any good defense lawyer is now going to demand all the sensitive intelligence in the government’s possession about that organization: What has the Pakistani intelligence service told U.S. authorities about the Taliban? If the Taliban is really in a terrorist conspiracy to attack New York City, why hasn’t the State Department ever designated it a terrorist organization?
#pageAnd what about witnesses? When, counsel will demand, will Shahzad be given access to the Taliban prisoners in the custody of Pakistan and the U.S. military, prisoners who may have provided information that Pakistan shared with the United States? After all, the government says it has a very effective working relationship with Pakistan and its intelligence agency, right? They even coordinated on this case, right? So, surely, the Obama Justice Department can lean on Pakistan to cough up all its intelligence files and informants, right? Oh, and by the way, the press keeps saying that parts of that rascally Pakistani intelligence service are actually in cahoots with the Taliban — could you show us your files on that, too?
Those are just the most obvious complications a Shahzad trial could pose for the U.S. war effort . The demands defendants make for mountains of information from government files always grow even larger once lawyers start looking at the first tranches of discovery.
And here’s the kicker: It’s all about tactics. Most of the information Shahzad will demand won’t really help his case at all. He will demand it because he knows the government will not want to disclose it. If the government refuses to turn it over, that could induce the trial judge to start striking parts of the government’s case, as happened in the Zacarias Moussaoui circus in federal court a few years back. DOJ resistance could create appellate issues that would put a conviction in jeopardy. It could create severe tension between the prosecutors and the trial judge that could hurt the government’s case in various other ways (again, see Moussaoui’s trial).
None of this had to happen. Shahzad could have been held as an enemy combatant and interrogated without counsel. In al-Marri’s case, and in the case of Jose Padilla, the government detained enemy combatants for years before turning them over to the criminal-justice system for trial. The statute of limitations on bombing attempts gives the government plenty of leeway to delay charging a defendant for years if there are good reasons for delay — and war is a better reason than any.
When you detain a war criminal without counsel, he is more apt to tell you much of what he knows. Those statements probably won’t be admissible at trial, but they may not be necessary to secure a conviction; in any event, it’s more important to the war effort to get the intelligence. By contrast, when you bring a war criminal into the civilian criminal-justice system while the war is ongoing, you empower him — with lawyers, with investigators, with discovery rights, with subpoena power, and with the complex dynamics of plea negotiations.
Rife with lawyers who spent the last several years volunteering their services to terrorists and deriding the Bush/Cheney law-of-war approach to counterterrorism, the Obama administration chose to empower Faisal Shahzad. Top officials at the White House, the Justice Department, the intelligence community, and the military evidently convinced themselves that doing so would be cost-free. They may soon learn the hard way that it is not.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.
http://article.nationalreview.com/436803/why-has-holder-indicted-the-times-square-bomber/andrew-c-mccarthy
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"Why Has Holder Indicted the Times Square Bomber?"
The fact that some of these will go to civilian court giving terrorists rights they do not deserve for PR purposes when they think they can win anyway and some of these will stay in military tribunals to protect our secrets and get a better conviction rate tells me the administration is receiving mixed and confusing polling data on the issue.
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Hmm, Shahzad pleaded guilty today without any sort of plea deal in place. Not sure what to make of that. . . .
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"Why Has Holder Indicted the Times Square Bomber?"
The fact that some of these will go to civilian court giving terrorists rights they do not deserve for PR purposes when they think they can win anyway and some of these will stay in military tribunals to protect our secrets and get a better conviction rate tells me the administration is receiving mixed and confusing polling data on the issue.
Polling Data is part of the problem. They were elected on their platform and principles, if they can't be trusted to follow those instead of what could be a knee jerk of the moment, then what are they doing there.........
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U.S. Counter-Terrorism Strategy and al-Qaeda
Posted by Jim Harper
Thomas L. Norman’s Risk Analysis and Security Countermeasure Selection is a relentlessly practical book intended to aid security consultants, of which Norman is one. There are literally dozens of codes, standards, and risk assessment methodologies that the U.S. Department of Homeland Security accepts for different institutions and infrastructures.
As he details the excruciating process of assessing the risks from all “threat actors,” including economic criminals, nonterrorist violent criminals, “subversives,” and petty criminals, he gets around to saying some important things about terrorists.
[T]errorists are not necessarily interested in taking out a facility but are very interested in communicating through the use of violence. . . . Terrorists use violence as language. The language of violence causes a public debate, not only about the terrorist act, but also about the causes of it and what can be done about it. Terrorists speak through violence to the public directly, past the national leadership. (page 167)
This is not a strategy book nor a counterterrorism book, but it touches on counterterrorism strategy in a similar, sensible way.
Deterrence occurs when potential threat actors evaluate the risks and rewards of an attack and determine that the risk is not worth the reward. . . . For terrorists, this could mean that an attack is not likely to succeed, that their attack would not capture the media’s attention, or that they could be perceived negatively by their own constituency. (page 252)
The success or failure of a given attack matters some to terrorists, but perceptions—the salience of their menace, and interpretations of events among key audiences—matter just as much.
These ideas—common sense among security professionals—seem not yet to have taken hold among policymakers and opinion leaders. This is why Joshua Alexander Geltzer’s U.S. Counter-Terrorism Strategy and al-Qaeda: Signaling and the Terrorist World View is such an important book.
Built on copious research, including more than forty interviews with administration figures, other policymakers, and experts, the book examines the communicative aspects of the Bush administration’s counterterrorism policies. According to Geltzer, the ten messages U.S. policymakers sought to convey included: taking action; signaling a change; using force; capability; resolve; relentlessness; focus on state sponsors; democracy; visible, layered defense; and success.
But the audience for these messages did not interpret them as officials hoped. ”[G]iven the belief structure characterising those drawn to al-Qaeda,” Geltzer concludes, ”the Bush administration’s counter-terrorist communications [proved] contrary to American efforts to thwart al-Qaeda and to contain the threat the group poses.” (page 133)
In his research for the book, Geltzer found remarkable candor among American officials responsible for Bush Administration counterterrorism policy. In a March 2007 interview, for example, former Deputy Secretary of State Richard Armitage told Geltzer, “We’ve never understood the nature of the enemy, in Iraq or more broadly the war on terror.” (page 39)
U.S. “relentlessness,” for example, did al Qaeda a favor by raising its profile to heights it could never have achieved itself. “Al-Qaeda has cultivated publicity, using America as the group’s promoter,” reports Geltzer, ”with al-Zawahiri apparently telling bin Laden, ‘Let the Americans become your personal media agents — they’ve got the biggest PR machine in the whole world.’” (page 121)
“Visible, layered defense,” likewise, offered as much encouragement to al Qaeda and its sympathizers as deterrence. “For some of those drawn to al-Qaeda, martyrdom has more meaning than victory,” reports Getzler. “There is no ‘obligation to produce a result’ in jihad: it is an affair between the believer and God and not between the mujahid and his enemy. . . . While homeland security may offer many potential practical benefits, sending a deterrent message to those inspired by martyrdom does not appear to be among them.” (page 129)
Importantly, the book betrays no anti-Bush sentiment. It is careful, clinical reporting on, and analysis of, the counterterrorism policies of the administration that had to invent them after the 9/11 attacks.
Consistent with the theme of the book, Geltzer has some prescriptions for counterterrorist signaling that will undermine terrorism:
In addition to calling far less attention to its own actions, America should call far less attention to al-Qaeda — and, moreover, should almost always avoid naming the terrorists themselves. . . . While the political profit to any American politician of constantly naming al-Qaeda persists, resisting that temptation would frustrate al-Qaeda’s strategy of elevating its own status and framing its campaign against America as a viable enterprise in which all Muslims worldwide should enlist, aid and abet. Not only should al-Qaeda and its leaders be named less by American officials, but the label of al-Qaeda also should not be used to describe what are, in truth, diverse and splintered militant Islamist movements, organizations and networks. (page 145)
When the next terrorism-related event occurs, listen carefully to how U.S. politicians respond. Be wary of politicians who lend terrorism strength by touting the threat and unifying it under the “al Qaeda” banner.
Terrorizing Ourselves, a Cato book I co-edited with Benjamin Friedman and Chris Preble addresses many other dimensions of the terrorism problem with similar insight, I think.
http://www.cato-at-liberty.org/2010/06/30/u-s-counter-terrorism-strategy-and-al-qaeda/
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http://hotair.com/archives/2010/09/08/ninth-circuit-feds-can-use-state-secrets-privilege-to-block-lawsuits-over-terrorist-renditions/
BwahahahahahaHAHAHAHAHAHAHAHAHAHAHAHAHAHahahahahahahahahahahahah!!!!!!
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How a Bagram Detainee Foiled the Euro Terror Plot
The plan was disrupted because we were lucky enough to have the key witness in detention. It's a shame we didn't try to extract similar intelligence from Times Square bomber Faisal Shahzad.
By MICHAEL B. MUKASEY
The terrorism alert issued this week to Americans traveling abroad, and the events that generated it, have put in bold relief yet again dilemmas we face—some self-created—in our ongoing struggle with militant Islamists.
On the surface, the news certainly is not all bad. A German citizen of Afghan descent captured in Afghanistan disclosed a plot to American interrogators at the Bagram Air Field prison. The plan, Ahmed Sidiqi said, was to conduct coordinated attacks on tourists in European cities, and it involved other naturalized German citizens from Afghanistan. U.S. authorities issued a terrorism alert to travelers, and on Monday five of the conspirators, along with three Pakistanis and three others of undisclosed nationality, were killed in a drone strike in North Waziristan.
So far so good. One captured terrorist in military custody since July—at a location that prevents him, at least for the moment, from hauling his captors into a U.S. court—discloses valuable intelligence that appears to have headed off, at least for the moment, an atrocity.
Below the surface, the news is more troubling. Sidiqi and his associates are German citizens; that, and the arrest of a French citizen of Algerian origin as a suspected member of al Qaeda (plus 11 other arrests in southern France), make it plain that Islamist terrorists are succeeding in recruiting people whose passports give them free entry into all the countries of the European Union, and facilitate their travel in general. In 2009 and 2010 alone some 43 American citizens or residents of various backgrounds have been arrested here and abroad for terrorist-related activity, according to the Bipartisan Policy Center's National Security Preparedness Group.
Further, Sidiqi and those of his colleagues killed in the drone strike were recruited at the Taiba mosque in Hamburg, the same mosque attended by Mohammed Atta, the lead plotter among the 9/11 hijackers. And this group was said to have been planning simultaneous attacks of the sort carried out in November 2008 in Mumbai by Lashkar-e-Taiba, a terrorist group based in Pakistan.
Two items are worthy of note. First, the simultaneous attacks: This was a characteristic not only of 9/11 and the attacks on U.S. Embassies in Kenya and Tanzania in 1998, but also of the 1995 plot led by Omar Abdel Rahman, the so-called blind sheikh. That conspiracy meant to detonate near-simultaneous bombs at landmarks around New York, including the Holland and Lincoln Tunnels, the George Washington Bridge and the United Nations. In tape-recorded conversations the plotters discussed what they thought would be the especially demoralizing effect on their enemies, and the correspondingly aggrandizing effect on them, of simultaneity.
Second, the Mumbai attack was notable for its ability to rivet the world's attention for an extended period of time. Terrorists cherish that sort of attention.
All of which is to say that the tourist plot is of a piece with what we have faced, whether we were aware of it, for more than two decades. Are we taking the steps necessary to deal with it?
Here again, the news certainly isn't all bad. Our intelligence capabilities have been stepped up considerably in recent years, particularly with regard to electronic surveillance. The laws and regulations necessary to allow the government to use the techniques it needs are in place. And the Obama administration, commendably, has said it will seek legislation compelling service providers to have available the means necessary to permit the government to conduct Internet surveillance when authorized by warrant. In addition, guidelines put in force at the end of 2008 have empowered the FBI to gather intelligence domestically using conventional surveillance techniques and human sources.
Yet in other respects we seem stymied. Look no further than this week's headlines. How do we deal with the people planning simultaneous attacks on tourists—likely to be principally Americans—in Europe?
The government seems to present us only with the choice that we kill them with drones or give them Miranda warnings and access to a 24-karat justice system designed for conventional criminals. There are better ways, including but not limited to military commissions already provided by law but shunned by the administration, or other special- purpose tribunals that can be established by Congress.
Detaining terrorist conspirators for intelligence-gathering purposes—wholly apart from whatever they may be charged with planning or doing—does not appear to be an option for this administration, certainly not if they are apprehended in this country while seeking to detonate a bomb in an airplane over Detroit or in an SUV near Times Square. Those who joined the orgy of self-congratulation after this week's sentencing of Times Square bomber Faisal Shahzad might, when they sober up, consider what we did not find out about who sent him and who else may be on the way— because Shahzad was valued more as a defendant than as an intelligence source.
We will not always be so fortunate to have our would-be attackers detained by the military at Bagram. And even such detention may be the subject of further litigation if the Supreme Court agrees to review last spring's appellate decision denying habeas corpus to detainees at Bagram. Yet as recently as World War II this country held tens of thousands of war prisoners here and abroad without a single one of them being allowed to require his custodians to answer to a U.S. court.
For us, today, the lesson is clear. The importance of being able to gather human intelligence has never been more starkly demonstrated than in the capture and questioning of Ahmed Sidiqi, and the resulting drone attack. The former director of the CIA, Gen. Michael V. Hayden, has likened trying to survive on electronic intelligence alone to trying to put together a jigsaw puzzle without looking at the picture on the box. It is human intelligence that provides that picture.
Like Gulliver in the land of the Lilliputians, we seem tied down; unlike Gulliver, we have woven and tied the strings ourselves.
Mr. Mukasey was attorney general of the United States from 2007 to 2009.
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Don’t Try Terrorists, Lock Them UpBy JACK GOLDSMITH
Published: October 8, 2010
David Suter
THE Obama administration wants to show that federal courts can handle trials of Guantánamo Bay detainees, and had therefore placed high hopes in the prosecution of Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa. On Wednesday a federal judge, Lewis Kaplan of the United States District Court in Manhattan, made the government’s case much harder when he excluded the testimony of the government’s central witness because the government learned about the witness through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A.
Some, mostly liberals and civil libertarians, applauded the ruling, saying it showed that the rule of law is being restored. But many conservatives denounced it as proof that high-level terrorists cannot reliably be prosecuted in civilian courts and should instead be tried by military commissions.
The real lesson of the ruling, however, is that prosecution in either criminal court or a tribunal is the wrong approach. The administration should instead embrace what has been the main mechanism for terrorist incapacitation since 9/11: military detention without charge or trial.
Military detention was once legally controversial but now is not. District and appellate judges have repeatedly ruled — most recently on Thursday — that Congress, in its September 2001 authorization of force, empowered the president to detain members of Al Qaeda, the Taliban and associated forces until the end of the military conflict.
Because the enemy in this indefinite war wears no uniform, courts have rightly insisted on high legal and evidentiary standards — much higher than what the Geneva Conventions require — to justify detention. And many detainees in cases that did not meet these standards have been released.
Still, while it is more difficult than ever to keep someone like Mr. Ghailani in military detention, it is far easier to detain him than to convict him in a civilian trial or a military commission. Military detention proceedings have relatively forgiving evidence rules and aren’t constrained by constitutional trial rules like the right to a jury and to confront witnesses. There is little doubt that Mr. Ghailani could be held in military detention until the conflict with Al Qaeda ends.
Why, then, does the Obama administration seek to prosecute him in federal court? One answer might be that trials permit punishment, including the death penalty. But the Justice Department is not seeking the death penalty against Mr. Ghailani. Another answer is that trials “give vent to the outrage” over attacks on civilians, as Judge Kaplan has put it. This justification for the trial is diminished, however, by the passage of 12 years since the crimes were committed.
The final answer, and the one that largely motivates the Obama administration, is that trials are perceived to be more legitimate than detention, especially among civil libertarians and foreign allies.
Military commissions have secured frustratingly few convictions. The only high-profile commission trial now underway — that of Omar Khadr, a Canadian who was 15 at the time he was detained — has been delayed for months. Commissions do not work because they raise scores of unresolved legal issues like the proper rules of evidence and whether material support and conspiracy, usually the main charges, can be brought in a tribunal since they may not be law-of-war violations.
Civilian trials in federal court, by contrast, often do work. Hundreds of terrorism-related cases in federal court have resulted in convictions since 9/11; this week, the would-be Times Square bomber, Faisal Shahzad, was sentenced to life in prison after a guilty plea.
But Mr. Ghailani and his fellow detainees at Guantánamo Bay are a different matter. The Ghailani case shows why the administration has been so hesitant to pursue criminal trials for them: the demanding standards of civilian justice make it very hard to convict when the defendant contests the charges and the government must rely on classified information and evidence produced by aggressive interrogations.
A further problem with high-stakes terrorism trials is that the government cannot afford to let the defendant go. Attorney General Eric Holder has made clear that Khalid Shaikh Mohammed, the 9/11 plotter, would be held indefinitely in military detention even if acquitted at trial. Judge Kaplan said more or less the same about Mr. Ghailani this week. A conviction in a trial publicly guaranteed not to result in the defendant’s release will not be seen as a beacon of legitimacy.
The government’s reliance on detention as a backstop to trials shows that it is the foundation for incapacitating high-level terrorists in this war. The administration would save money and time, avoid political headaches and better preserve intelligence sources and methods if it simply dropped its attempts to prosecute high-level terrorists and relied exclusively on military detention instead.
Jack Goldsmith, a former assistant attorney general in the George W. Bush administration, is a professor at Harvard Law School and a member of the Hoover Institution’s Task Force on National Security and Law.
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Civilian trials for terrorists failing? Gee, who could have seen this coming??
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Hat tip to BBG on the Cognitive Dissonance thread; pasting here as well:
Obama Caves on Civilian Trial for KSM
It turns out indefinite detention isn’t so bad after all.
Let’s review the state of play, shall we?
Throughout the 2008 presidential campaign, candidate Barack Obama blasted the Bush administration’s decision to treat al-Qaeda terrorists as enemy combatants and detain them without trial at Guantanamo Bay. Now, two years into his presidency, Obama has decided to treat al-Qaeda terrorists as enemy combatants and detain them without trial at Guantanamo Bay.
The media is reporting that the administration will hold Khalid Sheikh Mohammed and the other 9/11 plotter indefinitely, granting them neither a civilian nor a military trial. This determination, leaked over the weekend, appears to be a rebuff of Attorney General Eric Holder, who had intimated a few days earlier that a civilian prosecution was imminent.
Here’s the difference between Presidents Bush and Obama: The former’s strategy was driven by weighty national-security concerns and maintained despite ceaseless condemnation from the Obama Left. Obama’s strategy — or, more accurately, his drift — is driven by naked political concerns, and his base’s media megaphone has gone nearly silent.
After the most devastating attack ever carried out on American soil by a foreign enemy, President Bush determined that the Clinton administration’s preferred strategy of treating al-Qaeda as a mere law-enforcement problem had been unserious. The criminal-justice system is tailored to address ordinary crimes committed in peacetime America. It is designed to favor the defendants: Americans are presumed innocent and armed by the Constitution with protections that, quite intentionally, make it difficult for the government to investigate, prosecute, convict, and incarcerate. By itself, civilian justice is incapable of neutralizing wartime enemies. Unlike everyday crooks, foreign terrorists operate from overseas redoubts where American law does not apply, where foreign regimes like Iran and the Taliban are only too happy to abet them.
This is not hypothesis; it is our experience. The Clinton Justice Department indicted Osama bin Laden himself in June 1998. He responded by orchestrating, with impunity, the August 1998 embassy bombings in eastern Africa, the October 2000 Cole bombing, and the 9/11 attacks. Al-Qaeda’s onslaught was a war, not a crime wave. President Bush was hardly alone in thinking so: Congress overwhelming authorized combat operations against al-Qaeda, and it has continued to authorize and fund them for nearly a decade. Combat operations necessarily imply not only the killing of enemy combatants but their capture and detention, with the corollary of military-commission trials for those who have committed provable war crimes.
The Bush strategy has worked. Its detractors among self-styled “human-rights activists” — who seem far more concerned about the humans doing the killing than the humans doing the dying — point to the spotty record of commission trials in contending otherwise. But commissions constitute only a small element of the Bush approach, and doubtless the least important one.
The Bush strategy’s key components are twofold. First: Kill, capture, and defund terrorists overseas, thereby denying them safe haven and taking them out before they can act. Second: Detain those who have been captured both to maximize the potential for acquiring fresh intelligence and to thin out the ranks of highly trained jihadists. The enemy may be able to replace terrorists who have been captured or killed, but the new recruits cannot replicate their level of competence.
It is a sad fact that the tireless, heroic work of our military continues without our paying it much mind. It is thus common for Americans to look at all our patent vulnerabilities — subway systems, power grids, sports stadiums, etc. — and wonder: “Why haven’t there been more 9/11s?” But this is no mystery. Dead and detained jihadists cannot execute attacks. A terror network worried about drone strikes on its training camps does not have the luxury of taking the months it takes to plan and execute significant plots. Fresh intelligence from high-level captives disrupts plots in addition to making it extraordinarily difficult for al-Qaeda to embed capable cells in our homeland.
While President Obama has gradually and grudgingly made the Bush strategy his own, he lacks the grace to say so, much less to give his predecessor credit. But it is remarkable to consider how far Obama has come. In June 2008, with the campaign in high gear, he ripped Bush, complaining that
in previous terrorist attacks [such as] the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated. And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world.
This critique was astonishing in its ignorance. In most previous terrorist attacks, we had not been able to arrest those responsible — they had been able to keep attacking. Even in the one example Obama cited, the 1993 WTC bombing, several of those responsible were able to flee because civilian due-process protections made it impossible to hold them. Some were never apprehended — and KSM, who was complicit in the WTC bombing and several subsequent plots, was finally captured thanks to wartime operations, not law-enforcement protocols.
Moreover, detaining enemy combatants without trial is entirely consistent with the “rule of law” that applies in wartime. Indeed, the Obama Justice Department has found itself making just this argument, albeit without fanfare. In short, indefinite detention at Gitmo “destroyed our credibility” only with Bush-deranged leftists — and isn’t it amazing how credulous they’ve suddenly become now that their guy is accountable?
In his conclusion, candidate Obama leveled the charge — oft-repeated but mindless — that Bush counterterrorism had “given a huge boost to terrorist recruitment in [Islamic] countries that say, ‘Look, this is how the United States treats Muslims.’” Let’s put aside the now-familiar Obama crotchet that gives Muslim sensibilities pride of place over American security concerns. The brute fact is: Obama is treating Muslim terrorists the same way Bush did. Given that, is it too much to ask the president finally to acknowledge that terrorist recruitment is driven by Islamist ideology? The legal theory by which a president justifies the indefinite detention of terrorists is beside the point.
For those who maintain that our president is a pragmatist and not an ideologue, worth pondering is Obama’s ideological intransigence, and how it has bred incompetence. If, back in January 2009, Obama had just let the then-pending military commission go forward, KSM and his cohorts would likely have been executed by now. They had announced their intention to plead guilty and proceed to sentencing. Allowing that, however, would effectively have meant endorsing military commissions and, by extension, Bush counterterrorism. So the new president interrupted the proceedings and dangled before KSM the stage the terrorist had always craved: a civilian trial just a few blocks from Broadway.
The public revolted, prompting bipartisan congressional opposition. Meantime, the president came to realize that, regardless of his purple campaign rhetoric, many committed jihadists could not be tried in civilian court and would kill Americans if released. His law-enforcement framework was impractical: He would have to detain al-Qaeda captives indefinitely or find another way to try them. Consequently, he kept Gitmo open despite having promised to close it; and, with an assist from congressional Democrats, he made a few cosmetic tweaks in the military-commission system in order to camouflage the inconvenient truth that it was substantially the same commission system proposed by Bush and endorsed by Congress in 2006.
But while Obama preserved military commissions, he didn’t actually want to use them. Had he used them, and had terrorists promptly started being convicted and severely sentenced, public opposition to the civilian prosecutions beloved by his base would have stiffened. So now there is one obvious right thing to do: Give KSM and the 9/11 plotters the military commission and execution they should have had almost two years ago. Yet, Obama can’t bring himself to do it.
Instead, the man who claimed that indefinite detention without trial “destroyed our credibility” will indefinitely detain the terrorists without trial — at least until after the 2012 election, when either they will be some other president’s headache or electoral politics will no longer weigh on Obama. That’s change you can believe in.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.
http://www.nationalreview.com/articles/253356/obama-caves-civilian-trial-ksm-andrew-c-mccarthy#
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By JOHN C. YOO
AND ROBERT J. DELAHUNTY
When announcing in 2002 that the U.S. would detain al Qaeda fighters at Guantanamo Bay, Cuba, then-Defense Secretary Donald Rumsfeld famously described the base as "the best, least worst place." Mr. Rumsfeld's quip distilled a truth: The U.S. would capture enemy fighters and leaders, and their detention, while messy, was of great military value.
For two years, President Barack Obama has pretended that terrorism is a crime, that prisoners are unwanted, and that Gitmo is unneeded. As a presidential candidate, he declared: "It's time to show the world . . . we're not a country that runs prisons which lock people away without ever telling them why they're there or what they're charged with." Upon taking office, he ordered Gitmo closed within the year.
But the president's embrace of the left's terrorism-as-crime theories collided with his responsibility to protect a great nation. Now the reality of the ongoing war on terror is helping to shatter the Gitmo myth and end its distortion of our antiterrorism strategies.
This week the intelligence community reported to Congress that one-quarter of the detainees released from Guantanamo in the past eight years have returned to the fight. Though the U.S. and its allies have killed or recaptured some of these 150 terrorists, well over half remain at large. The Defense Department reports that Gitmo alumni have assumed top positions in al Qaeda and the Taliban, attacked allies in Iraq and Afghanistan, and led efforts to kill U.S. troops.
View Full Image
Associated Press
Former Defense Secretary Donald Rumsfeld famously described Guantanamo Bay as "the best, least worst place."
Even that 25% recidivism rate is likely too low. The intelligence community reports that it usually takes about two and a half years before a released detainee shows up on its radar. Our forces probably have yet to re-engage most of the terrorists among the 66 detainees released so far by the Obama administration.
The Bush administration released many more, but those freed by this administration are likely more dangerous. Contrary to the Gitmo myth, innocent teenagers and wandering goat herders do not fill the base. Last May, an administration task force found that of the 240 detainees at Gitmo when Mr. Obama took office, almost all were leaders, fighters or organizers for al Qaeda, the Taliban or other jihadist groups. None was judged innocent.
All of this is having an impact on Congress, which this week voted overwhelmingly to de-fund any effort to shut down the Gitmo prison. It also barred the Justice Department from transferring detainees to the U.S. homeland. Despite Attorney General Eric Holder's rush to put Khalid Sheikh Mohammed on trial in downtown New York, the planners of the 9/11 attacks will stay put.
Congress is reflecting the wishes of the American people. In the Gitmo myth, President George W. Bush was a Lone Ranger acting without Congressional permission, and Gitmo was a law-free zone. But the American people never opposed capturing and detaining the enemy. And now Democratic Congress has ratified Mr. Bush's policy.
Freezing the Gitmo status quo will stop the release of al Qaeda killers, but it won't end the serious distortions in Mr. Obama's terrorism policy.
The administration relies on unmanned drones to kill al Qaeda leaders hiding in Pakistan and Afghanistan. CIA Director Leon Panetta calls it "the only game in town." Drones take no prisoners, but they also ask no questions. Firing missiles from afar cannot substitute for the capture and interrogation of al Qaeda leaders for intelligence. (The real question now is whether CIA agents will decline to interrogate prisoners, thanks to Mr. Holder's criminal investigations into Bush policies.)
As long as no one is sent to Gitmo, the Obama administration will leave itself two options for dealing with terrorists: kill, or catch-and-release. Mr. Obama's drone-heavy policy means that more people will die—not only al Qaeda and Taliban fighters, but also innocent Afghan and Pakistani civilians.
The Gitmo myth also drove the Justice Department's push to prosecute al Qaeda leaders in U.S. civilian courts. Nowhere else did the Obama administration place its view of terrorism more clearly on display as a law-enforcement problem. The near-acquittal of Ahmed Ghailani, the al Qaeda operative who facilitated the 2000 bombing of the USS Cole, by a New York jury last month has clearly revealed that path as a dead end—even if Mr. Holder remains in denial.
The simple alternative is to continue detentions at Gitmo. Detention is consistent with the rules of war, which allow captured combatants to be held indefinitely without requiring criminal charges to be filed. It also keeps our troops and agents in the field focused on finding and killing the enemy, not on collecting evidence and interviewing witnesses.
Using its constitutional power of the purse, the new Congress should continue to keep Gitmo in operation. It should press President Obama to resume the capture, detention and interrogation of al Qaeda leaders. It should also educate the public about the real state of affairs in Guantanamo: The military has spent millions to create a model facility.
Most importantly, Congress can use its oversight power to probe the decision-making that led to the release of the 150 or more recidivists. It can require a full accounting from the military and intelligence agencies of the harms caused by released detainees, and it can bring to light the risks that these bureaucratic mistakes will pose to American lives.
After the left's long denunciation of Bush-era policies, Mr. Obama should admit that he has made his share of mistakes—not the least of which has been propagating the Gitmo myth. If Americans die at the hands of released detainees, we will know who to blame.
Mr. Yoo is a law professor at the University of California, Berkeley, and an American Enterprise Institute scholar. Mr. Delahunty is an associate professor at the University of St. Thomas School of Law in Minneapolis. Both served in the Justice Department under President George W. Bush.
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Vindicated by history.
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hello all. Massive topic.
I know I am going to regret this, I just want to post a couple of pointers, that kept popping up while I was, admittedly, struggling and reading all the data in this post.
As a historian, who spends most of his time at the university, I am really intriguied to know, if most of you guys have done your homework here. I am not hinting at the legal issues of it all, nor the political circus, neither of which I wont and even cant comment, since I am living on the European continent.
To start, the term "Islamic Fascism" alone, sounds very problematic to me. The word Fascism (which comes from the Latin fasces, authority of magisters) isnt some abstract notion, that can be carelessly thrown around events that imply some sort of evil or repression. It means a very specific thing. It means a radical political ideology, that regards a nation as an organic corpus - hence corporativism -, with scraps from the far right and far left of the political continuum. It was greatly influenced by the growing nationalism in the 19th century, and the Sorelian power of myth in peoples lives (Eugene Sorel was a french philosopher and radical syndicalist).
The Sorelian myth ironically preety much describes the "Islamic Fascism" in the way it is used in the USA, but I will not go into factual confrontations of this, since I see some guys are terribly passionate about the whole ordeal. And I am here to make friends.
Second, the word Islamic in "Islamic Fascism". Now I am sure you guys know, but there are more than 20 denominations in Islam, besides the lately made "popular" Sunni, and Shia, and the less known Sufi. Each have their own ecclesiastical practices, codes of conduct, ontology, metaphysics, ethics and, yes, morals. Just like christianity has. That is a terrible simplification if I have ever seen/heard one. I guess saying that all right wing politicians in the USA are kkk, with their idiosyncratic interpretations of the Holy Text and citing Old Testament to back up Christian terrorism, would sprout more than one objection.
The third term, which seems important to shed some light on, is the term Jihad. It falls on the bottom of the barrel of "the worst misinterpreted words in history". Somewhere near Marx' class struggle. Or make that preety much everything else he has written. The word Jihad, quite simply means struggle. Internal, external, implicit, explicit. Here are of course more than one different interpretations, but generally this holds much of the same ground :
Fiqh Made Easy: A Basic Text of Islamic Law; Saalikh bin Gahneem As-Sadlan pg. 117-18 (quote info and text is taken from wikipedia)
- Jihad against the soul: Struggling against the soul to yearn for the Religion, act upon those teachings, and call others to them. (Paraphrased)
- Jihad against Shaytan: Struggling against Satan without doubts or desires.
- Jihad against the disbelievers and hypocrites: this is done with the tongue, hand, heart and wealth.
- Jihad against heretics, liars, and evilfolk: This is best done with the hand, if not the hand then the tongue, if that's not possible then the heart."
Again, a very dangerously overreaching simplification.
If one takes a few steps back from it all, and takes a birds-eye view on the situation. Yes the radical extremists can be taken as a legitimate threat, yes they have done terrible things, yes they cannot be reasoned with. BUT, as with any such group, it must be said, that they are always a minority untill they use a situation to fill their ranks with a very specific social demographic, that is usually very passive, neutral and even though I do not like the word, ignorant. They are used, swindled and twisted into their rank and made warriors for a cause. And this is where I might chime my 2 cents in, where America is taking very poor (and very dangerous) choices. These actions are taking its massive toll, by constantly getting new enemies, while acting as the new big kid in the gutter, that doesnt understand all the small, unwritten rules and restrictions, that come bundled with violent behaviour.
The War on terror supposedly started in 2001, with the joint attack on Afghanistan, in lieu of the 9.11. and was followed by more subsequent attacks, most notable of which was the invasion of Iraq under the position of hidden WMDs. Now we know there werent any. This alone is a totally ignorant, stupid and unwise decision of the Administration. Bringing the troops home, would most definitely save countless more lives than having them crawl in the sand in search of an enemy that doesnt even have a face. And most importantly it would save the USA a hell of a lot of financial troubles in the upcoming years, especially now, that the monetary and fiscal debacle is starting to unveil.
I will leave the conspiracy theories of the TRUE underlying reasons of war, i.e. sustaining the dollars fall, and oil dominion, to people more susceptible to its content. To me it seems the only thing we can learn here, is the confirmation of US senator H. Johnsons quote : "The first casualty when war comes is truth"
As opposed to Iran...this might come as a shock, but why arent they allowed to have nuclear arms, whereas others can ? Especially since the UN comitee watchdogs are issuing generally positive reports? Why dont they have problems with Russia having them, or China, India, North Korea ? IMHO it is EXACTLY this, this stepping on other peoples toes, this ignorance of boundaries, overriding other cultures values with their own, bringing democracy into mesopotamia, meddling into affairs not their own, that even brings a need having to define "torture", or "enemy combatant". Fools words. Again in street terms, if you look for a fight in the wrong neighbourhood, you will more than probably find it.
Here http://www.washingtonpost.com/wp-dyn/content/article/2006/05/09/AR2006050900878.html (http://www.washingtonpost.com/wp-dyn/content/article/2006/05/09/AR2006050900878.html) you have an 18 page note that Ahmadinejad wrote to Bush, and here http://www.globalsecurity.org/wmd/library/news/iran/2007/iran-071211-rianovosti01.htm (http://www.globalsecurity.org/wmd/library/news/iran/2007/iran-071211-rianovosti01.htm) inviting him to a public debate, saying "...we are all rational beings, why cant we sit down and talk ? " A very enlightened gesture, I must say. Shame it has fallen on deaf ears.
By the way, I wouldnt be that much worried about the anti Western Islamic terrorist or enemy combatant, that is so terrfyingly portrayed in our hemisphere, I am alot more afraid of incredibly gifted physicists and scientists, which accept the radical findings at the sub atomic level ALOT easier than most, through Islam, with its unique religious ontology.
be friends at the end of the day :)
Andrew
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http://dictionary.reference.com/browse/Fascism
fas·cism
/ˈfæʃɪzəm/ Show Spelled[fash-iz-uhm] Show IPA
–noun
1.
( sometimes initial capital letter ) a governmental system led by a dictator having complete power, forcibly suppressing opposition and criticism, regimenting all industry, commerce, etc., and emphasizing an aggressive nationalism and often racism.
2.
( sometimes initial capital letter ) the philosophy, principles, or methods of fascism.
3.
( initial capital letter ) a fascist movement, esp. the one established by Mussolini in Italy 1922–43.
**From the start, islam has been a violent, totalitarian political ideology disguised as a religion. Mohammed tortured and murdered any who opposed him and engaged in ethnic cleansing, as well as having a 9 year old wife. When a muslim today asks "What would Mohammed do?" the answer is bomb a subway, cut a head off, slam a plane into a building until the non-muslims are conquered.**
009.029
YUSUFALI: Fight those who believe not in Allah nor the Last Day, nor hold that forbidden which hath been forbidden by Allah and His Messenger, nor acknowledge the religion of Truth, (even if they are) of the People of the Book, until they pay the Jizya with willing submission, and feel themselves subdued.
PICKTHAL: Fight against such of those who have been given the Scripture as believe not in Allah nor the Last Day, and forbid not that which Allah hath forbidden by His messenger, and follow not the Religion of Truth, until they pay the tribute readily, being brought low.
SHAKIR: Fight those who do not believe in Allah, nor in the latter day, nor do they prohibit what Allah and His Messenger have prohibited, nor follow the religion of truth, out of those who have been given the Book, until they pay the tax in acknowledgment of superiority and they are in a state of subjection.
___________________________________________________________________________________
http://www.investigativeproject.org/document/id/20
An Explanatory Memorandum on the General Strategic Goal for the Brotherhood in North America
by Mohamed Akram
May 19, 1991
View the full document
Summary:
This May 1991 memo was written by Mohamed Akram, a.k.a. Mohamed Adlouni, for the Shura Council of the Muslim Brotherhood. In the introductory letter, Akram referenced a "long-term plan…approved and adopted" by the Shura Council in 1987 and proposed this memo as a supplement to that plan and requested that the memo be added to the agenda for an upcoming Council meeting. Appended to the document is a list of all Muslim Brotherhood organizations in North America as of 1991.
Notable quotes:
*
Enablement of Islam in North America, meaning: establishing an effective and stable Islamic Movement led by the Muslim Brotherhood which adopts Muslims' causes domestically and globally, and which works to expand the observant Muslim base, aims at unifying and directing Muslims' efforts, presents Islam as a civilization alternative, and supports the global Islamic state, wherever it is.
*
In order for Islam and its Movement to become "a part of the homeland" in which it lives, "stable" in its land, "rooted" in the spirits and minds of its people, "enabled" in the live [sic] of its society and has firmly-established "organizations" on which the Islamic structure is built and with which the testimony of civilization is achieved, the Movement must plan and struggle to obtain "the keys" and the tools of this process in carry [sic] out this grand mission as a "Civilization Jihadist" responsibility which lies on the shoulders of Muslims and – on top of them – the Muslim Brotherhood in this country.
*
The process of settlement is a "Civilization-Jihadist Proecess" with all the word means. The Ikhwan must understand that their work in America is a kind of grand Jihad in eliminating and destroying the Western civilization from within and "sabotaging" its miserable house by their hands and the hands of the believers so that it is eliminated and God's religion is made victorious over all other religions. Without this level of understanding, we are not up to this challenge and have not prepared ourselves for Jihad yet. It is a Muslim's destiny to perform Jihad and work wherever he is and wherever he lands until the final hour comes, and there is no escape from that destiny except for those who chose to slack. But, would the slackers and the Mujahedeen be equal.
Read more at: http://www.investigativeproject.org/document/id/20
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"The War on terror supposedly started in 2001, with the joint attack on Afghanistan, in lieu of the 9.11. and was followed by more subsequent attacks, most notable of which was the invasion of Iraq under the position of hidden WMDs. Now we know there werent any. "
http://www.nypost.com/p/news/international/us_did_find_iraq_wmd_AYiLgNbw7pDf7AZ3RO9qnM
There were weapons of mass destruction in Iraq after all.
The massive cache of almost 400,000 Iraq war documents released by the WikiLeaks Web site revealed that small amounts of chemical weapons were found in Iraq and continued to surface for years after the 2003 US invasion, Wired magazine reported.
-
"...we are all rational beings, why cant we sit down and talk ? " A very enlightened gesture, I must say. Shame it has fallen on deaf ears."
**As a historian, can you explain how the talks between PM Chamberlain and Germany's leader worked out?
http://www.meforum.org/1985/ahmadinejad-and-the-mahdi
**A little insight into A-jad's less than rational world-view.
-
Andrew wrote: "I know I am going to regret this ..."
I hope you don't regret it. I'm glad you posted - (as I go on to disagree...)
As a friend to a family of one of the hikers held in Iran as a political pawn to be tried for 'espionage' after solitary confinement for a year and a half, I would say at least that the term Islamic Fascism fits the regime in Iran just fine and that those fighting to spread Islam seek to duplicate that type of regime elsewhere.
In my daughter's Catholic Church the priest was recently arrested for bad behavior, immediately removed from his post, and we know other priests have behaved far worse. But those are NOT the teachings of the Church, those are individuals who violated the teachings of the church. The Bible may also have verses we find objectionable, but my (limited) knowledge of churches and synagogues says that what is taught and preached is peace, love and acceptance. You might recall that the Pope also opposed the war in Iraq for reasons similar to what you cite. I can't say the same for the Muslim clerics in Iraq and Iran preaching and inciting violence.
What existed in Iraq before the invasion was not peace. It was another version of fascism, a totalitarian prison. The Saddam regime was supposedly secular but he was praising Allah in almost every sentence that I read, while oppressing his own people in every way and attacking four of his neighbors prior to the American invasion. The story of Dujail that Saddam was hanged for was an illustration of what Iraqi people faced. I have posted it here as told by a survivor. Mass graves elsewhere make the same point. There would have been nothing moral about having the might to depose Saddam and then pass on it as none of our business IMO, just as there was no easy way to depose him and then leave a power vacuum on his place. Toppling that regime was not violent behavior, quite the opposite; we were also heavily criticized for not toppling it the first time we were there - rescuing a Islamic country. They may think we are the enemy and they may think we came to take the oil (or to manipulate our currency?), but we aren't and we didn't. We shed a lot of our own blood trying hard not to shed theirs. We spent hundreds of billions and took nothing. We tried and tried and tried to set up self rule and leave in peace. We were not the ones fighting AGAINST that. I don't accept that blame.
I also don't accept moral relativism such as stoning a rape victim to death because a religion calls for it. Wrong is wrong. (I know you didn't say otherwise, just posting my viewpoint.) If I can't do anything to stop it, then that is something I have to live with. If I have the opportunity to intervene successfully no matter what neighborhood, then that is what is right to do, whether I do it or not. People can reference KKK or slavery here but those are also behaviors we have shed blood to stop.
Ahmadinejad's Letter to Bush is referenced. The Washington Post translation lacks the ending I read elsewhere, "Wasalam Ala Man Ataba'al hoda". Experts argue the meaning, one translation is: "peace only unto those who follow the true path". The true path is jihad so I take it to mean as Death to America because we are infidels, not on their true path, whereas apologists take it to mean something more like 'have a nice day'. You see Ahmadinejad as an honest broker of peace(?), worthy of nuclear weapons to deter an attack, a legitimate leader of the Iranian people? And Bush as one who turned his back on an opportunity to settle our differences if only we could sit down and discuss? I disagree.
"be friends at the end of the day" - Likewise! :-)
-
Hi guys.
Sorry for the delay. I have had time to reflect on the answers, so forgive me for the long post. I completely understand if it goes below radar for being a wall of text.
Without gibberish, let me get right to the replies.
dear GM, thanks for your response. I have a lot of things on my mind concerning what you just wrote, and to be perfectly honest, I am a bit dissapointed in your blind righteous fury.
first of all. It seems a bit degrading, that you post in response a recycled dictionary entry about a topic, that I am almost finishing my phd thesis on, especially since it is a most
complex topic, devoid of any room for discrete simplification. It is specially out of context, because it even expands my idea further. ESPECIALLY since the title of this topic is
capitalized as Fascism with a big F. Lets forget the superficial semantics for now.
But ok, if citing dictionaries is your version of discussing humanistic topics, have it this way.
http://dictionary.reference.com/browse/Islam defines Islam as
—n
1. the religion of Muslims, having the Koran as its sacred scripture and teaching that there is only one God and that Mohammed is his prophet; Mohammedanism
2. a. Muslims collectively and their civilization
b. the countries where the Muslim religion is predominant
"From the start, islam has been a violent, totalitarian political ideology disguised as a religion."
I cannot see here, or in any other definition OR academic milieu for that matter that labels it as a totalitarian political ideology disguised as a religion. If you really want to continue that
thought, you might want to read (or study again) Althusser and Marx, since what you wrote rings very closely to what in his opinion was the ideological role of religion in the social
strata.
"Mohammed tortured and murdered any who opposed him and engaged in ethnic cleansing, as well as having a 9 year old wife. When a muslim today asks "What would Mohammed do?" the answer is bomb a subway, cut a head off, slam a plane into a building until the non-muslims are conquered."
Ok, I hoped I am speaking with a man, well read in what he is saying, thus I presumed you have read at least partially the Qu'ran and The Bible. After this however, I am getting the
impression that I was wrong, since these types of comments really show a harshly ignorant side to what in general you come across as ; a well read, well versed intellectual of the right
wing position.
Here is a nice read about violent passages from both scriptures, by the Penn state academic professor of religious studies Phillip Jenkins, I strongly advise you to read it. Just in case, I
am going to quote a few more important parts from the article :
http://craigconsidine.wordpress.com/2010/06/12/professor-jenkins-highlights-violent-passages-in-the-bible-compares-it-with-the-quran/ (http://craigconsidine.wordpress.com/2010/06/12/professor-jenkins-highlights-violent-passages-in-the-bible-compares-it-with-the-quran/)
"Even Westerners who have never opened the book – especially such people, perhaps – assume that the Koran is filled with calls for militarism and murder, and that those texts shape Islam....
...In the minds of ordinary Christians – and Jews – the Koran teaches savagery and warfare, while the Bible offers a message of love, forgiveness, and charity...
...Commands to kill, to commit ethnic cleansing, to institutionalize segregation, to hate and fear other races and religions . . . all are in the Bible, and occur with a far greater frequency
than in the Koran. At every stage, we can argue what the passages in question mean, and certainly whether they should have any relevance for later ages. But the fact remains that the words
are there, and their inclusion in the scripture means that they are, literally, canonized, no less than in the Muslim scripture....
...The Bible also alleges divine approval of racism and segregation....In fact, the Bible overflows with “texts of terror,” to borrow a phrase coined by the American theologian Phyllis
Trible. The Bible contains far more verses praising or urging bloodshed than does the Koran, and biblical violence is often far more extreme, and marked by more indiscriminate savagery. The
Koran often urges believers to fight, yet it also commands that enemies be shown mercy when they surrender. Some frightful portions of the Bible, by contrast, go much further in ordering
the total extermination of enemies, of whole families and races – of men, women, and children, and even their livestock, with no quarter granted....
...The difference between the Bible and the Koran is not that one book teaches love while the other proclaims warfare and terrorism, rather it is a matter of how the works are read"
I would hope that douses some of the rampant flame that you carry. Im not singing praises here, of either side. Just opening a new sphere that might force someone to rethink his
position, which is what progress should be about, constantly rethinking ones position within a framed dialectic going upwards.
An Explanatory Memorandum on the General Strategic Goal for the Brotherhood in North America....
Informative article. But I fail to see where it fits in all this. Is it supposed to be an example how all Islam groups are hell bent on the destruction of the USA ?
I am sure you can do better. I guess we can also use names like Guy Fawkes, who (wanted to) blew up the houses of parliament and assasinate King James or the Tripura liberation front, that was forcefully converting people to christianity, or the protestant Northern Ireland Orange Volunteers who were coordinating terrorist attacks on catholic churches, or the KKK for that matter as signs that crhistianity uses blatantly senile ways of coercion.
Formally (by Aristotles Organon) your type of argument in a debate is a logical fallacy. Specifically, it is called converse fallacy of accident or Hasty generalization.
There were weapons of mass destruction in Iraq after all.
Informative article. Again.
"The massive cache of almost 400,000 Iraq war documents released by the WikiLeaks Web site revealed that small amounts of chemical weapons were found in Iraq and continued to surface for
years after the 2003 US invasion, Wired magazine reported."
Ok. If this has been around, and surfacing, A) why hasnt anyone used it as concrete evidence that Iraq has WMDS since -it would most definitely help your political position-, B) why dont we
see legions of right wing conservatives jumping up and down for finally having an enforcable and justifyable reason for the 1,121,057,0450 dollars (I think I cant even read this out loud)
and C) how come it hasnt been presented to the commissions going there to assess the situation ?
If this is true, it poses all new kinds of state trust issues and expands on what I said above. Administration KNEW they had WMDS, told everyone they didnt find it, and thus for
appropriately subjective reasons decided to prolongue their forces stay in Mesopotamia. I am not going to go into more detail here, since I am not well read on it all, but I will quote a few
Bush quotes that expand on the matter.
"The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." --State of the Union Address, Jan. 28, 2003, making a claim that
administration officials knew at the time to be false
"You know, one of the hardest parts of my job is to connect Iraq to the war on terror." --interview with CBS News' Katie Couric, Sept. 6, 2006
"I think I was unprepared for war." –on the biggest regret of his presidency, ABC News interview, Dec. 1, 2008
"So what?" –President Bush, responding to an ABC News correspondent who pointed out that Al Qaeda wasn't a threat in Iraq until after the U.S. invaded, Dec. 14, 2008
**As a historian, can you explain how the talks between PM Chamberlain and Germany's leader worked out?
I am afraid, I fail to see the connection here, again, especially since the way you reason your comparison is again the same type of argumentative fallacy. I may seem pedantic about this, but,
like you demand sources for cited thoughts and ideas in your posts, I demand at least a partially solid argumentative structure.
Ok, even if I take that comment for what it is, are you saying that Bush was in the place of Germany's leader ? Or the other way around ? I would certainly think not the latter, since he
hasnt even responded to any initiative, and PM Chamberlain certanly WAS initiating talks, more than once even (on behalf of the sovereign of course). Now, I would gladly expand on the
Sudeten Germans, and what several kinds of problems their national identity with Bohemia, Moravia and Silesia as German states pose, but it seems to me that you do not understand what the
underlying conditions on both sides were, because the underlying problem of the Iran/USA is completely different. And neither should you, (since it is a very specific and complex issue)
unless it is an interest of yours. But lets continue with the topic...
I shall use your last comment as a linking point with DougMacGs post.
hi Doug, thanks for the reply :)
"The Saddam regime was supposedly secular but he was praising Allah in almost every sentence that I read,.." .....and "A little insight into A-jad's less than rational world-view."
My God of course I dont mean Ahmadinejad was/is a bastion of ratio in the middle east. I am merely trying to point out, that ones subjective implications should be questioned/doubted first,
(especially) in hand with such severe one sided criticism. Let me quote some more Bush brilliance, in regards to rational world-view and praising "Him" in what he says.
" I am driven with a mission from God. God would tell me, 'George go and fight these terrorists in Afghanistan'. And I did. And then God would tell me 'George, go and end the tyranny in
Iraq'. And I did. And now, again, I feel God's words coming to me, 'Go get the Palestinians their state and get the Israelis their security, and get peace in the Middle East'. And, by God,
I'm gonna do it." Sharm el-Sheikh August 2003.
" I trust God speaks through me. Without that, I couldn't do my job."
Statement made during campaign visit to Amish community, Lancaster County, Pennsylvania, Jul. 9, 2004
"One of the great things about this country is a lot of people pray." Washington, D.C., Apr. 13, 2003
"The short-term objective of this country is to find an enemy and bring them to justice before they strike us. The long-term objective is to make this world a more free and hopeful and
peaceful place. I believe we'll succeed because freedom is the Almighty God's gift to every man and woman in this world."
Portsmouth, Ohio, Sep. 10, 2004
"Well, first of all, you got to understand some of my view on freedom, it's not American's gift to the world. See, freedom is God -- is God given." Interview with TVR, Romania, Nov. 23,
2002
"What existed in Iraq before the invasion was not peace. It was another version of fascism, a totalitarian prison." combined with this "And then God would tell me 'George, go and end the
tyranny in Iraq...."
is what is really intriguing me. This self righteous condescending aura of the invasion. Like you did a noble deed. Well you did, I guess, but what bothers me, is why did you choose Iraq ? Because it was a totalitarian fascistic regime ? Suffocating prison, which people had to be freed from ? Hm, here are a few numbers for potential, more suitable candidates to save. And it would entail NOT loosing your own men and NOT gaining as much new enemies.
according to http://www.avert.org/worldstats.htm (http://www.avert.org/worldstats.htm) there were 22.5 million hiv/aids infected children and adults (adult counts as age 15 and up) and 1.3 million deaths in Sub saharan Africa in
2009 alone. Slow down and imagine that, almost like the whole state of Texas, anyone you meet when you go out, and anyone you see, is infected.
a couple of other numbers from conflicts, from the early 90s to 2008 (secondary source wikipedia, search there for primary sources) : Kinshasa civil war, 4 million deaths, Guinnea Bissau, 350 thousand civilians without a piece of iron left to spare, Kenya civil war 200 thousan civilians left without a home or personal belongigs, Mozambique civil war, 1 million deaths, Nigerian civil war, 1.2 million civilian and army deaths, Rwandan genocide, 1 million deaths - 20% of countries population, Sierra Leone 80 thousand deaths, Darfur 350 thousand deaths, almost 3 million displaced, and I havent even counted Somalia, where the UN has plowed around a bit, did nothing, lost a few men and then retreated (with all due respect to all the fallen soldiers. on both sides). All in the name of some national freedom Democratic front.
It might not be appropriate to include this, since I was subjectively involved in it, but what the hell. It connects in part with what I mentioned in first post, about the attitude the US has towards militaristic procedures.
The help we got in the last Balkan War was a gesture worthy of a Shakespearean comedy. Everything from hitting kindergardens, Chinese embassies to bakeries, missing 90% of fired projectiles, to a downed f117 the invisible fighter with a 40 year old soviet RPG weapon, to supporting the "retaking of croatian sovereign territory" in Kninska krajina, which was one of the biggest undercover genocides in the war, apart from Srebrenica, which is a tragedy on its own. It was openly supported by the CIA with intelligence and US air force surveillance. When we went there to bring uncle back home, there were piles upon piles of dismembered and mauled men and adolescents and 10 year old girls, with white grey hair to their waist, raped, searching for their loved ones with tearless cries, wandering alone through the barren lands, , that the guerilla "rambo" forces left in their wake. All in the name of democratic equality of peoples, OF COURSE.
At least thank god for the peacekeepers.
The way the UN/US incursion was portrayed in the western media almost made me vomit in contrast to what it has effectively acheived. This portrayal of war like it is an entertainment blockbuster, like a game of Risk, or a Real Time Strategy video game. Like a John Wayne movie, after he kills all the baddies and rides off in the sunset. Wearing a mission accomplished tag on his back. This is the reason the USA gets so much bad mouthing and enemies.
I must stop now. This is getting out of hand.
I guess after all that, Iraq was THOUGHT to be the best compromise of easy victory, combat heroism and potential ally with mutual benefits afterwards. But as it stands, at least 2 of the 3
goals have turned for the worse.
be friends at the end of the day :)
Andrew
EDIT REASON : some typos and forgot to add wiki source
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Hi guys.
Sorry for the delay. I have had time to reflect on the answers, so forgive me for the long post. I completely understand if it goes below radar for being a wall of text.
Without gibberish, let me get right to the replies.
dear GM, thanks for your response. I have a lot of things on my mind concerning what you just wrote, and to be perfectly honest, I am a bit dissapointed in your blind righteous fury.
first of all. It seems a bit degrading, that you post in response a recycled dictionary entry about a topic, that I am almost finishing my phd thesis on, especially since it is a most
complex topic, devoid of any room for discrete simplification. It is specially out of context, because it even expands my idea further. ESPECIALLY since the title of this topic is
capitalized as Fascism with a big F. Lets forget the superficial semantics for now.
But ok, if citing dictionaries is your version of discussing humanistic topics, have it this way.
**You disputed the use of the term fascism in describing islamic totalitarianism. Is "islamic totalitarianism" a better term to use? Whenever we discuss a concept, it's important to clarify definitions. If an American guy is in the UK, and a woman asks to come by her flat to knock her up in the morning, he might get the wrong idea what she is asking him to do. The same words can mean different things to different people. The use of islamic fascism to describe the totalitarianism and oppression embedded in islamic theology is accurate, using the definition I am familiar with.**
http://dictionary.reference.com/browse/Islam defines Islam as
—n
1. the religion of Muslims, having the Koran as its sacred scripture and teaching that there is only one God and that Mohammed is his prophet; Mohammedanism
2. a. Muslims collectively and their civilization
b. the countries where the Muslim religion is predominant
**And when we examine islam, both in the modern and historic context, we see a it spread at swordpoint, imposing an oppressive theocracy, especially for non-muslims and women it places under it's domination. Mohammed never hesitated to kill those who dared to opose him , or even those that mocked him. Just as today, his followers seek to kill those who dared to draw Mohammed as a cartoon.
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"I cannot see here, or in any other definition OR academic milieu for that matter that labels it as a totalitarian political ideology disguised as a religion. If you really want to continue that
thought, you might want to read (or study again) Althusser and Marx, since what you wrote rings very closely to what in his opinion was the ideological role of religion in the social
strata."
**Christianity's impact on western civilization was to allow for a divide between the spiritual realm and government. "Render unto Caesar what is Caesar's...."
Islam has no such divide. In islam, every aspect of a muslim's existance from the more intimate to the function of the legal system and nation-state is dictated by islamic theology. Those from within the muslim world that wish to question these core aspects tend to have the life expectancies of unprotected mob informants. Meanwhile, in the western world, not only is one free to defame christianity, one can often obtain a government grant to do so.
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"Ok, I hoped I am speaking with a man, well read in what he is saying, thus I presumed you have read at least partially the Qu'ran and The Bible. After this however, I am getting the
impression that I was wrong, since these types of comments really show a harshly ignorant side to what in general you come across as ; a well read, well versed intellectual of the right
wing position."
What I said about Mohammed is true. Since 9/11/01, I have made a great effort to study islamic theology, aside from the koran, I have read Shahih Muslim and Sahih Burkhari and islamic texts that discuss the sunnah. When a muslim decides to marry a 9 years old girl, he is allowed to do so as it was done by Mohammed. If a muslim decides to smite an unbeliever, again, the verses of the sword mandate he does so. There is no mainstream sect of islam that rejects violent jihad. Meanwhile, there is no mainstream sect of christianity that approves of the spread of christian belief by violence.
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Jesus refused his followers a physical kingdom, explaining that his kingdom wasn't of this world. Jesus allowed himself to be defamed, beaten, tortured and executed. He certainly never had anyone whacked for making fun of him.
http://www.americanthinker.com/2006/03/muhammads_dead_poets_society.html
March 08, 2006
Muhammad's Dead Poets Society
By James Arlandson
Read it all.
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http://www.meforum.org/1913/religion-of-peace
Religion of Peace?
Why Christianity Is and Islam Isn't
by Robert Spencer
Washington: Regnery Publishing Inc., 2007. 264 pp. $27.95.
Reviewed by Bat Ye'or
www.dhimmitude.org
Middle East Quarterly
Spring 2008
http://www.meforum.org/1913/religion-of-peace
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Spencer, director of JihadWatch.org, is not a man to recoil from difficulties. In his most recent, solid study, he examines the current state of controversies in the United States relating to Islam and Christianity. He exposes the ignorance and misunderstanding that riddle many discourses on religions.
Beginning in the 1960s, the search for common points led too many academics and intellectuals to efface the oppositions among Judaism, Christianity, and Islam in order to distinguish essential common points. But the differences are vast: The totalizing Islamic interpretation of revelation gathers together under a single power the spheres of politics, religion, and justice, something unacceptable to the two biblical religions. And while the Bible does not mention Muslims, who, of course, did not exist at the time of its redaction, the Qur'an mentions Jews and Christians in numerous verses, most often negatively. Other differences include the contents of the sacred texts and differing interpretations of the prophethood.
Spencer's work is crucial, given the stakes of today's worldwide jihadist war. For example, he demolishes false equivalence between jihad (a warrior ideology that is structural to Islam and has been deployed across thirteen centuries) and the Crusades (defensive wars spread over two centuries).
He instructs those many in the West who do not understand the possibility of an Islamist-provoked catastrophe putting an end to democracy's comfortable political and social order. More broadly, Westerners rarely perceive that their foreign policies conform to the exigencies of international jihadi strategies—for example, that European leaders are constrained under the threat of reprisals to accept immigration and to restrain their own freedom of expression to appease Muslim sensibilities. This policy of submission permits Islamist propaganda to dominate Western media and campuses.
If Westerners do not understand the ideological language used to justify the suppression of their liberties, if they ignore the historical, juridical, and theological structure of jihad and its corollary, dhimmitude (subjugation of religious minorities), then they will understand nothing about current events. They will become—like their predecessors of whose history they are ignorant—the slaves of their conquerors.
Written in a clear and easy style, and not without humor, Spencer's latest book Religion of Peace? supplies the keys to understanding the challenges that confront us. He provides the knowledge essential to enable Westerners to defend their democratic institutions as well as the fundamental values of freedom and human dignity.
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"Informative article. But I fail to see where it fits in all this. Is it supposed to be an example how all Islam groups are hell bent on the destruction of the USA ?
I am sure you can do better. I guess we can also use names like Guy Fawkes, who (wanted to) blew up the houses of parliament and assasinate King James or the Tripura liberation front, that was forcefully converting people to christianity, or the protestant Northern Ireland Orange Volunteers who were coordinating terrorist attacks on catholic churches, or the KKK for that matter as signs that crhistianity uses blatantly senile ways of coercion.
Formally (by Aristotles Organon) your type of argument in a debate is a logical fallacy. Specifically, it is called converse fallacy of accident or Hasty generalization."
Just as there are those that wage jihad by bomb and gun, there are those that wage a stealth jihad against the western world from within. Does every muslim do this? No. Not every muslim is a jihadist, however every jihadist is a muslim. Unfortunately, they (jihadists) hold the theological upperhand in islam. As I mentioned before, anyone, including muslims that seek to reform islam face real threats to their lives.
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"or the KKK for that matter as signs that crhistianity uses blatantly senile ways of coercion."
http://volokh.com/2010/10/20/how-separation-of-church-and-state-was-read-into-the-constitution-hint-the-kkk-got-its-way/
How Separation of Church and State Was Read Into the Constitution (Hint: the KKK got its way)
Jim Lindgren • October 20, 2010 3:38 pm
The flap over Christine O’Donnell’s debate comment suggests that many people still don’t know how Separation of Church and State became part of the law of the First Amendment.
On this, I reprint part of an old post from 2005:
6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.
7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.
8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.
9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.
10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.
11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.
12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.
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http://www.usc.edu/schools/college/crcc/engagement/resources/texts/muslim/quran/033.qmt.html#033.021
033.021
YUSUFALI: Ye have indeed in the Messenger of Allah a beautiful pattern (of conduct) for any one whose hope is in Allah and the Final Day, and who engages much in the Praise of Allah.
PICKTHAL: Verily in the messenger of Allah ye have a good example for him who looketh unto Allah and the Last Day, and remembereth Allah much.
SHAKIR: Certainly you have in the Messenger of Allah an excellent exemplar for him who hopes in Allah and the latter day and remembers Allah much.
**Meaning, do what Mohammed did if you want to look good to allah.
http://www.usc.edu/schools/college/crcc/engagement/resources/texts/muslim/hadith/bukhari/062.sbt.html#007.062.088
Volume 7, Book 62, Number 88:
Narrated 'Ursa:
The Prophet wrote the (marriage contract) with 'Aisha while she was six years old and consummated his marriage with her while she was nine years old and she remained with him for nine years (i.e. till his death).
http://www.usc.edu/schools/college/crcc/engagement/resources/texts/muslim/quran/004.qmt.html#004.034
004.034
YUSUFALI: Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (the husband's) absence what Allah would have them guard. As to those women on whose part ye fear disloyalty and ill-conduct, admonish them (first), (Next), refuse to share their beds, (And last) beat them (lightly); but if they return to obedience, seek not against them Means (of annoyance): For Allah is Most High, great (above you all).
PICKTHAL: Men are in charge of women, because Allah hath made the one of them to excel the other, and because they spend of their property (for the support of women). So good women are the obedient, guarding in secret that which Allah hath guarded. As for those from whom ye fear rebellion, admonish them and banish them to beds apart, and scourge them. Then if they obey you, seek not a way against them. Lo! Allah is ever High, Exalted, Great.
SHAKIR: Men are the maintainers of women because Allah has made some of them to excel others and because they spend out of their property; the good women are therefore obedient, guarding the unseen as Allah has guarded; and (as to) those on whose part you fear desertion, admonish them, and leave them alone in the sleeping-places and beat them; then if they obey you, do not seek a way against them; surely Allah is High, Great.
http://www.usc.edu/schools/college/crcc/engagement/resources/texts/muslim/hadith/muslim/004.smt.html#004.2127
He struck me on the chest which caused me pain, and then said: Did you think that Allah and His Apostle would deal unjustly with you?
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http://www.nytimes.com/2010/12/12/us/12holocaust.html?_r=1
In chilling detail, the report also elaborates on the close working relationship between Nazi leaders and the grand mufti of Jerusalem, Haj Amin al-Husseini, who later claimed that he sought refuge in wartime Germany only to avoid arrest by the British.
In fact, the report says, the Muslim leader was paid "an absolute fortune" of 50,000 marks a month (when a German field marshal was making 25,000 marks a year). It also said he energetically recruited Muslims for the SS, the Nazi Party's elite military command, and was promised that he would be installed as the leader of Palestine after German troops drove out the British and exterminated more than 350,000 Jews there.
On Nov. 28, 1941, the authors say, Hitler told Mr. Husseini that the Afrika Corps and German troops deployed from the Caucasus region would liberate Arabs in the Middle East and that "Germany's only objective there would be the destruction of the Jews."
The report details how Mr. Husseini himself was allowed to flee after the war to Syria -- he was in the custody of the French, who did not want to alienate Middle East regimes -- and how high-ranking Nazis escaped from Germany to become advisers to anti-Israeli Arab leaders and "were able to carry on and transmit to others Nazi racial-ideological anti-Semitism."
"You have an actual contract between officials of the Nazi Foreign Ministry with Arab leaders, including Husseini, extending after the war because they saw a cause they believed in," Dr. Breitman said.
...
In October 1945, the report says, the British head of Palestine's Criminal Investigation Division told the assistant American military attaché in Cairo that the mufti might be the only force able to unite the Palestine Arabs and "cool off the Zionists. Of course, we can't do it, but it might not be such a damn bad idea at that."
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http://www.andrewbostom.org/blog/2008/04/18/298/
The contemporary pronouncements of the Islamic Center of Cleveland’s clerical “Imamate”—Fawaz Damra and his erstwhile replacement Ahmed Alzaree—illustrate an ancient, but continuous tradition of anti-Jewish incitement by Islam’s “popular preachers,” very much alive today. And the historical treatment of Jews in Muslim societies—chronic oppression, punctuated by outbursts of mass anti-Jewish violence, forced conversion to Islam, or expulsion—has been consistent with such sacralized religious bigotry. Promoters of modern jihad genocide from the former Mufti of Jerusalem, Hajj Amin el-Husseini, to contemporary Hamas clerics, have repeatedly invoked Islam’s Jew-exterminating eschatology.
George Vajda’s 1937 essay “Juifs et Musulmans Selon Le Hadit” (“Jews and Muslims According to the Hadith”)—a magisterial 70-page treatise discussed at some length herein—remains the definitive study of Jews and their relations with Muhammad and Muslims, as depicted in the hadith. Vajda’s research demonstrates how Muslim eschatology highlights the Jews supreme hostility to Islam. Jews are described as adherents of the Dajjâl—the Muslim equivalent of the Anti-Christ—and as per another tradition, the Dajjâl is in fact Jewish. At his appearance, other traditions state that the Dajjâl will be accompanied by 70,000 Jews from Isfahan, or Jerusalem. When the Dajjâl is defeated, he and his Jewish companions will be slaughtered— everything will deliver them up except for the so-called gharkad tree. Thus, according to a canonical hadith—incorporated into the 1988 Hamas Charter (article 7)—if a Jew seeks refuge under a tree or a stone, these objects will be able to speak to tell a Muslim: “There is a Jew behind me; come and kill him!”
Vajda also emphasizes how the notion of jihad “ransom” extends even into Islamic eschatology casting the Muslims’ sins upon the Jews. And in the corporeal world, Vajda observes, “distrust must reign” in Muslims relations with the rebellious Jews. But it is the Jews stubborn malevolence, Vajda further notes, that is their defining worldly characteristic
Jews are represented in the darkest colors. Convinced by the clear testimony of their books that Mohammed was the true prophet, they refused to convert, out of envy, jealousy and national particularism, even out of private interest. They have falsified their sacred books and do not apply the laws of God; nevertheless, they pursued Mohammed with their raillery and their oaths, and harassed him with questions, an enterprise that turned to their own confusion and merely corroborated the authenticity of the supernatural science of the prophet. From words they moved to action: sorcery, poisoning, assassination held no scruples for them.
Vajda concludes that these archetypes, in turn, justify Muslim animus towards the Jews, and the admonition to at best, “subject [the Jews] to Muslim domination”, as dhimmis, treated “with contempt”, under certain “humiliating arrangements.”
Hartwig Hirschfeld’s detailed analyses of Muhammad’s interactions with the Jews of Medina as depicted in the earliest pious Muslim biographies of Muhammad (sira; sirat) describes the “mutual disappointment” that characterized their relationship, and the predictably disastrous results for the Jews.
The Jews, for their part, were singularly disappointed in their expectations. The way in which Muhammad understood revelation, his ignorance and his clumsiness in religious questions in no way encouraged them to greet him as their Messiah. He tried at first to win them over to his teachings by sweetness and persuasion; they replied by posing once again the questions that they had already asked him; his answers, filled with gross errors, provoked their laughter and mockery. From this, of course, resulted a deep hostility between Muhammad and the Jews, whose only crime was to pass a severe judgment on the enterprise of this Arab who styled himself “God’s prophet” and to find his conduct ridiculous, his knowledge false, and his regulations thoughtless. This judgment, which was well founded, was nevertheless politically incorrect, and the consequences thereof inevitably would prove to be disastrous for a minority that lacked direction or cohesion.
Muhammad’s failures or incomplete successes were consistently recompensed by murderous attacks on the Jews. Thus Muhammad developed a penchant for assassinating individual Jews, and destroying Jewish communities—by expropriation and expulsion (Banu Quaynuqa and Nadir), or massacring their men, and enslaving their women and children (Banu Qurayza). Subsequently, in the case of the Khaybar Jews, Muhammad had the male leadership killed, and plundered their riches. The terrorized Khaybar survivors—industrious Jewish farmers—became prototype subjugated dhimmis whose productivity was extracted by the Muslims as a form of permanent booty. And according to the Muslim sources, even this tenuous vassalage was arbitrarily terminated within a decade of Muhammad’s death when Caliph Umar expelled the Jews of Khaybar.
Muhammad’s brutal conquest and subjugation of the Khaybar Jews, and their subsequent expulsion by one of his companions, the (second) “Rightly Guided” Caliph Umar, epitomize permanent, archetypal behavior patterns Islamic Law deemed appropriate to Muslim interactions with Jews.
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Andrew wrote, "I know I am going to regret this..."
I bet you do! :-)
I do like Doug's post... Andrew said, "I hope you don't regret it."
Doug said, "I'm glad you posted - (as I go on to disagree...)"
Doug also said, "be friends at the end of the day" - Likewise! With a :-)
I too think we need more diverse opinion on this forum. And you seem rather bright and articulate. Good luck with your Phd thesis.
As Doug pointed out, nothing wrong with disagreeing, but...
In response to your post yesterday afternoon GM has deluged you with NINE mostly irrelevant posts. Don't take it personally, that's GM's style; when
he doesn't have quality or is not able to address your points, he throws up quantity. Wait, an update; GM is awake and posting even more....
Do you ever feel like you are drowning Andrew?
I do think GM has read the books of Islam. Also, I think he is quite knowledgable on the subject; albeit selectively. He chooses to focus only on the bad.
And your point, and my point in the past (I've given up arguing; GM's stamina and quantity of posts is rather impressive) that while Jesus preached forgiveness and kindness; GM ignores the entire Old Testament which is filled with fire and brimstone. Women are treated like chattel, their age difference doesn't matter; multiple wives are fine, and their head better be covered. An eye for an eye revenge dominates and woe onto anyone who worships false idols or strays from the path. Entire cities including women and children are slaughtered at God's direction. Rarely did God of the Old Testament show any mercy. The Jews were God's children and everyone else was basically S#$%. And even the Jews had better follow the line or they too would see God's wrath.
Since Jesus time, wars have been fought, women and children slaughtered, groups ostracized, and intolerance abundant all done in the name of the Christian and Jewish God.
Even the New Testament which preaches forgiveness and kindness on one had, basically takes the attitude that you are with me or against me on the other hand. The believers go to Heaven and the non believers go to Hell.
Now other than the Koran, I have not read many Islamic theological books like you and GM and perhaps others on this forum, however I have read the bible quite thoroughly. So when people quote the Koran or other books, and deplore violence or treatment of women I hope they also have read the Bible from cover to cover. While many Jews and Christians including myself will say that we have "evolved" and "progressed", other devoted and orthodox individuals probably say we have strayed from the true teachings of the Bible. The Bible that punishes without mercy non believers. Sounds similar to the Koran doesn't it?
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Andrew, I will leave religion mostly for you and GM. I would only add that I see a distinction between the religion and the book with the religion being what people are preaching, taking from the writings today, or at whatever point in time we are discussing. GM said he studied Islam after 9/11. That point I find important. We didn't go out of our way to find or have an opinion about any other religion. It was brought to us in brutal fashion, over and over and over, so people went to the religion to see if that was inspiring these worldwide actions causing us to fondle ourselves at airports and worry about training camps far away. Far away is now close to home as Zacarias Moussaoui was trained in our town here, we had 24 al Qaida related arrests in Minneapolis this year and I have rental property in a town where 9/11 hijackers lived among us prior to the attacks - with laws you can't discriminate whatsoever about ethnicity religion etc.
You mentioned argumentative structure (to GM) but on the part where you said you were replying to me, you mixed quotations of mine in with bizarre, selective utterances from former President Bush in the same paragraph, even the same sentence, and I did not follow at all on those points. You then re-asked the question, why Iraq, without acknowledging or refuting the partial answers that I gave. If your point is that Bush was not a great communicator on this subject, I don't think anyone here or Bush himself would disagree. (straw argument? Karzai and Bernanke read here, Bush doesn't) You went on to clumsiness in the Balkans, but that was a different President, a different war, for a different reason, though another example of where 'allies' of Europe were of little help and then you mention trouble in Mozambique and elsewhere. But I wrote that "Saddam attacked four of his neighbors" and I hope to make additional points from my point of view regarding security threat.
It was not Bush but every intelligence agency in the world including the Iraqis who thought they had WMDs prior to the invasion. What was not found were stockpiles of WMDs. Not finding stockpiles or biochem labs in full operation is tied to the timetable of war, in effect telling him in September that we will be there in April. That they vanished is worrisome but not telling (to me). You quote the discredited words from the State of the Union speech of some botched or phony Uranium purchase in Niger that became a media storm. The Iraq Study Group, a commission that I think is respected, concluded Saddam was not an immediate threat with nuclear weapons; his program was 5-7 years away from nuclear weapons, meaning an eternity, but 5-7 years has since expired. As we judge now the value of the Iraq effort with Bush long gone, we must judge it versus the reality (with the best information available) that today the world's problems would include an emboldened Saddam Hussein in complete power with nuclear arms. I think you infer that is not frightening to you (or at least with Iran) but it is to me.
Regarding both Iran and Iraq and in the perspective of Hitler and Chamberlain or whoever inside or outside of Germany i would like to make a different point than I read GM to make. The historical issues over WWII to me for today are how could we have acted in a smaller way sooner so that we would not have had what we had - a full blown world war barely won in order to survive. In the context of the intelligence required today, I say we needed to know who/what Hitler was and where he was going before he crossed his first border and if there was no justification to act before, then we needed to act then, with or without allies, as he crossed his first border or his second or his third invasion if the conflict was to be kept smaller. With Iraq they have already crossed that line - repeatedly. With Iran it may be a more subtle question but there are very troubling aspects. They support terrorism outside their borders, the oppress inside their borders and they support the destruction of an ally (Israel) in a way I think is different, more serious and threatening than the position of all the so-called moderate Arab states who also fail to recognize Israel.
The question 'why Iraq' is posed, not to George Bush's utterances, but for those here on this forum. I ask a serious historian challenge of you. Please find and post Saddam Hussein's surrender statement from 1991. I would like to tie a point of mine to that which I read at the time and saved but am unable to locate now to link or quote.
Saddam we all know invaded two of his neighbors and sent bombs into two others, and paid huge huge sums to the families of suicide bombers. The first world trade center bombers were here with Iraqi passports. I think we all agree (?) he had WMD prior to the invasion, he did gas the kurds (?) and mass graves were found(?). The straw issue was whether he cooperated in the 911 attacks. We were not trying to prevent attacks that already occurred (or avenge them); we were trying to prevent the next ones, and he gave plenty of justification, again IMO .
Saddam's ties to al Qaeda were determined ( by the Iraq Study Group) to not be a 'collaborative, operational relationship'. The media and the political opponents, even those who supported the invasion ran opportunistically hogwild with that. But it means only exactly what it says. It does not mean they didn't have cooperation, have a relationship, share a common enemy or plan future cooperation. A year after 9/11 a Democrat, Sen. Fritz Hollings, justifying his pro-war vote entered a chilling Iraqi state newspaper editorial into the congressional record. It speaks in flowery terms and people can deny its meaning, but in affect it names Bin Laden, praises Bin Laden and names the targets of the 9/11/2001 attacks in official Iraqi press two months before the attacks. http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2002_record&page=S8525&position=all http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2002_record&page=S8526&position=all
"America says, admitting just like a bird in the midst of a tornado, that Bin Ladin is behind the bombing of its destroyer in Aden. The fearful series of events continues for America and the terror within America gets to the point that the Governor of Texas increases the amount of the award, just as the stubbornness of the other man and his challenge increases. This challenge makes it such that one of his grandchildren comes from Jeddah traveling on the official Saudi Arabia airlines and celebrates with him the marriage of one of the daughters of his companions. Bin Ladin has become a puzzle and a proof also, of the inability of the American federalism and the C.I.A. to uncover the man and uncover his nest. The most advanced organizations of the world cannot find the man and continues to go in cycles in illusion and presuppositions. They still hope that he could come out from his nest one day, they hope that he would come out from his hiding hole and one day they will point at him their missiles and he will join Guevara, Hassan Abu Salama, Kamal Nasser, Kanafani and others. The man responds with a thin smile and replies to the correspondent from Al Jazeera that he will continue to be the obsession and worry of America and the Jews, and that even that night he will practice and work on an exercise called ``How Do You Bomb the White House.'' And because they know that he can get there, they have started to go through their nightmares on their beds and the leaders have had to wear their bulletproof vests.
Meanwhile America has started to pressure the Taliban movement so that it would hand them Bin Ladin, while he continues to smile and still thinks seriously, with the seriousness of the Bedouin of the desert about the way he will try to bomb the Pentagon after he destroys the White House .....
The phenomenon of Bin Ladin is a healthy phenomenon in the Arab spirit. It is a decision and a determination that the stolen Arab self has come to realize after it got bored with promises of its rulers: After it disgusted itself from their abomination and their corruption, the man had to carry the book of God and the Kalashnikov and write on some off white paper ``If you are unable to drive off the Marines from the Kaaba, I will do so.'' It seems that they will be going away because the revolutionary Bin Ladin is insisting very convincingly that he will strike America on the arm that is already hurting. That the man will not be swayed by the plant leaves of Whitman nor by the ``Adventures of Indiana Jones'' and will curse the memory of Frank Sinatra every time he hears his songs."
I assume you know but I point out anyway, the "curse the memory of Frank Sinatra...his songs" means "New York, New York", the other target in addition to naming the White House and the Pentagon attacks with prescient timing. (pre·scient/ˈpreSH(ē)ənt/ Adjective: Having or showing knowledge of events before they take place) :-) With all the self righteousness I can muster, we said after 9/11 that you are with us or you are against us at rooting this out. Everyone in that operation was on only a need to know basis, so prior knowledge of an attack on that scale is very close to evidence of cooperation from my point of view.
Andrew wrote:"The way the UN/US incursion was portrayed in the western media almost made me vomit in contrast to what it has effectively achieved. This portrayal of war like it is an entertainment blockbuster, like a game of Risk, or a Real Time Strategy video game. Like a John Wayne movie, after he kills all the baddies and rides off in the sunset. Wearing a mission accomplished tag on his back. This is the reason the USA gets so much bad mouthing and enemies."
This was true, they had a theme lines and they competed for coverage, you could make popcorn during the commercials, but the U.S. does not control western media (or the clumsiness of Bush's ability to articulate) or the duplicity of political opponents and those attacks were aimed at toppling an oppressor and helping Iraqi Arab Muslim people while Saddam and bin Laden both rejoice at destroying civilians. Bin Laden will point to American acts perceived to be against Islamic nations, omit bloodshed to save Islamic nations or people and the same media gives him a free pass to mis-communicate and build a positive following in Muslim countries and with sympathizers in the west. That is an unfortunate fact of the world we try to be safe in.
" is what is really intriguing me. This self righteous condescending aura of the invasion. Like you did a noble deed. Well you did, I guess, but what bothers me, is why did you choose Iraq ? Because it was a totalitarian fascistic regime ? Suffocating prison, which people had to be freed from ? Hm, here are a few numbers for potential, more suitable candidates to save. And it would entail NOT loosing your own men and NOT gaining as much new enemies."
You make a condescending, sarcastic point I think with "self righteous"..."noble cause", then agreed with it(!) "I guess", list some reasons but importantly leave out all those that involve a security threat, then go on with other possible targets like Mozambique. So I add there needs to be a threat and a justification for others to accept our actions. Then others don't accept it anyway or accept facts as they stroll in like your reaction to reading of WMDs evidence discovered: "if that were true..."
I stated partly in jest during the Iraq debate that there are so many tyrants and so little time to topple them. Note that Khadafi also came clean in that time and had the effort gone better, other bad actors might have re-thought their positions. I joked after Saddam invaded Kuwait that if it is okay to invade neighbors, we should take over Canada, not fight in the Middle East. You make fun of being righteous because of maybe Bush swagger? I take finding the right think to do more seriously? What was the right thing to do about Saddam, then, and Iran, NPRK etc. today?
As we nitpick our definitions, I will point out that "right wing conservative" is an unnecessary redundancy and I plea guilty. In the spirit of writing "without gibberish" I offer in good fun my take from your positions articulated so far that you are studying to be a partisan historian. :-) - Doug - still friends!
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http://www.newsweek.com/1999/01/10/saddam-bin-laden.html
Saddam + Bin Laden?
by Russell Watson and Christopher Dickey
January 11, 1999
IN THE NO-FLY ZONES OF northern and southern Iraq, Saddam Hussein's gunners blindly fired surface-to-air missiles at patrolling American and British warplanes. In Yemen, terrorists seized a group of British Commonwealth and American tourists, and four of the hostages died in a shootout. In Tel Aviv, the U.S. Embassy abruptly closed down after receiving a terrorist threat. Perhaps it was just a typical week in the Middle East. But in a region where no one puts much faith in blind coincidence, last week's conjunction of Iraqi antiaircraft fire and terrorism aimed at the countries that had just bombed Iraq convinced some that a new conspiracy was afoot.
Here's what is known so far: Saddam Hussein, who has a long record of supporting terrorism, is trying to rebuild his intelligence network overseas--assets that would allow him to establish a terrorism network. U.S. sources say he is reaching out to Islamic terrorists, including some who may be linked to Osama bin Laden, the wealthy Saudi exile accused of masterminding the bombing of two U.S. embassies in Africa last summer. U.S. intelligence has had reports of contacts between low-level agents. Saddam and bin Laden have interests--and enemies--in common. Both men want U.S. military forces out of Saudi Arabia. Bin Laden has been calling for all-out war on Americans, using as his main pretext Washington's role in bombing and boycotting Iraq. Now bin Laden is engaged in something of a public-relations offensive, having granted recent interviews, one for NEWSWEEK (following story). He says ""any American who pays taxes to his government'' is a legitimate target.
Saddam's terrorism capability is still small-time, according to senior U.S. officials. ""He's nowhere close to the level of the Iranians or Hizbullah,'' says one. But terrorism may be Iraq's growth industry. An Arab intelligence officer who knows Saddam personally and stays in touch with his clandestine services predicts that ""very soon you will be witnessing large-scale terrorist activity run by the Iraqis.'' The attacks, he says, would be aimed at American and British targets in the Islamic world. Washington is somewhat skeptical, but this source says plans have already been put into action under three ""false flags'': one Palestinian, one Iranian and one ""the al-Qaeda apparatus,'' the loose collection of terrorists who receive bin Laden's patronage. ""All these organizations have representatives in Baghdad,'' says the Arab intelligence officer.
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hi GM, Doug and JDN.
thanks for the responses. Since this is starting to go into the monolith proportions, I will have to take time to study your posts and positions and get back in a couple of days. ATM my freetime priority is elsewhere.
@Doug, you are right, gaps started to appear in my post, specially towards the end, since as I am sure you have noticed, I posted it at about 3 o clock in the morning my time, and finished with some cosmetic corrections at 5. That "right wing" conservative came out wrong, as I now see I could simply say" a more determined Republican" :)...partisan historian?? hehee not really. Well I guess it depends what you mean with it. The European sphere of historiography is very much different to the anglosaxon paradigm. Our philosophy and theory of history is still heavily relied on Marxist conception of time (which has nothing to do with his political implications) and of course, the french Annales school.
see you soon !
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Andrew,
Unless it's the Marx Brothers, I'd recommend steering clear of anything with "Marx" in it. 8-)
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**Note, this does not mean that Bin Laden and Saddam were BFF. Saddam was a baathist who desired his Iraq to become the power in the ME. Bin Laden wants a global caliphate and has no love for a nation-state outside of that. AQ, as mentioned in the indictment below, also had support from Iran/Hezbollah, who of course hated Saddam, and Iran is a shiite nation and AQ are sunni salafists. They couldn't be more opposite in the islamic beliefs, yet it's believed that many of the bomb-building techniques used by AQ were learned from Hezbollah trainers.**
http://www.fas.org/irp/news/1998/11/98110602_nlt.html
06 November 1998
TEXT: US GRAND JURY INDICTMENT AGAINST USAMA BIN LADEN
New York -- A U.S. Federal Grand Jury in New York on Nov. 5 issued an
indictment against Usama Bin Laden alleging that he and others engaged
in a long-term conspiracy to attack U.S. facilities overseas and to
kill American citizens.
The indictment noted that Al Qaeda, Bin Laden's international
terrorist group, forged alliances with the National Islamic Front in
Sudan and with the government of Iran and with its associated group
Hezballah to "work together against their perceived common enemies in
the West, particularly the United States."
Additionally, the indictment states that Al Qaeda reached an agreement
with Iraq not to work against the regime of Saddam Hussein and that
they would work cooperatively with Iraq, particularly in weapons
development.
According to the indictment, Bin Laden's group also tried to recruit
Americans to travel through the United States and the West to deliver
messages and to conduct financial transactions to aid their terrorist
activities. The indictment also states that Al Qaeda used humanitarian
work as a conduit for transmitting funds to affiliate terrorist
groups.
The indictment also claims that Bin Laden's supporters purchased land
for terrorist training camps; bought warehouses where explosives were
stored; transferred bank accounts using various aliases; purchased
sophisticated telecommunications equipment; and transferred money and
weapons to Al Qaeda and affiliated terrorist organizations.
The indictment also states that beginning in 1993, Al Qaeda began
training Somali tribes to oppose the United Nation's humanitarian
effort in Somalia. In October, members of Al Qaeda participated in an
attack on U.S. military personnel where 18 soldiers were killed and 73
others wounded in Mogadishu. In another reference, the indictment
noted that an unnamed "co-conspirator" transported weapons and
explosives from Khartoum to Port Sudan for transshipment to the Saudi
Arabian peninsula.
The Grand Jury document, which usually does not provide a great amount
of details in advance of a prosecution, also stated that Bin Laden and
"others" tried to develop chemical weapons and attempted to obtain
nuclear weapons components in 1993.
The indictment noted that Bin Laden issued his Declaration of Jihad
with the aim of recruiting others to "kill Americans and encouraged
other persons to join the jihad against the American enemy."
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http://articles.cnn.com/1998-12-16/us/9812_16_clinton.iraq.speech_1_weapons-inspectors-united-nations-special-commission-biological-weapons?_s=PM:US
WASHINGTON CNN From the Oval Office, President Clinton told the nation Wednesday evening why he ordered new military strikes against Iraq.
The president said Iraqs refusal to cooperate with U.N. weapons inspectors presented a threat to the entire world.
Saddam Hussein must not be allowed to threaten his neighbors or the world with nuclear arms, poison gas or biological weapons, Clinton said.
Operation Desert Fox, a strong, sustained series of attacks, will be carried out over several days by U.S. and British forces, Clinton said.
Earlier today I ordered Americas armed forces to strike military and security targets in Iraq. They are joined by British forces, Clinton said.
Their mission is to attack Iraqs nuclear, chemical and biological weapons programs and its military capacity to threaten its neighbors, said Clinton.
Clinton also stated that, while other countries also had weapons of mass destruction, Hussein is in a different category because he has used such weapons against his own people and against his neighbors.
Without delay, diplomacy or warning
The Iraqi leader was given a final warning six weeks ago, Clinton said, when Baghdad promised to cooperate with U.N. inspectors at the last minute just as U.S. warplanes were headed its way.
Along with Prime Minister Tony Blair of Great Britain, I made it equally clear that if Saddam failed to cooperate fully we would be prepared to act without delay, diplomacy or warning, Clinton said.
The president said the report handed in Tuesday by Richard Butler, head of the United Nations Special Commission in charge of finding and destroying Iraqi weapons, was stark and sobering.
Iraq failed to cooperate with the inspectors and placed new restrictions on them, Clinton said. He said Iraqi officials also destroyed records and moved everything, even the furniture, out of suspected sites before inspectors were allowed in.
Instead of inspectors disarming Saddam, Saddam has disarmed the inspectors, Clinton said.
In halting our airstrikes in November, I gave Saddam a chance not a license. If we turn our backs on his defiance, the credibility of U.S. power as a check against Saddam will be destroyed, the president explained.
Strikes necessary to stunt weapons programs
Clinton said he made the decision to strike Wednesday with the unanimous agreement of his security advisors.
Timing was important, said the president, because without a strong inspection system in place, Iraq could rebuild its chemical, biological and nuclear programs in a matter of months, not years.
If Saddam can cripple the weapons inspections system and get away with it, he would conclude the international community, led by the United States, has simply lost its will, said Clinton. He would surmise that he has free rein to rebuild his arsenal of destruction.
Clinton also called Hussein a threat to his people and to the security of the world.
The best way to end that threat once and for all is with a new Iraqi government a government ready to live in peace with its neighbors, a government that respects the rights of its people, Clinton said.
Such a change in Baghdad would take time and effort, Clinton said, adding that his administration would work with Iraqi opposition forces.
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**Down the memory hole. Iraq had no WMD, no connection to Bin Laden. Right?
http://www.guardian.co.uk/world/1999/feb/06/julianborger
Saddam link to Bin Laden
Terror chief 'offered asylum' in Iraq? US says dealings step up danger of chemical weapons attacks
* By Julian Borger in Washington
* The Guardian, Saturday 6 February 1999 03.34 GMT
Saddam Hussein's regime has opened talks with Osama bin Laden, bringing closer the threat of a terrorist attack using chemical, biological or nuclear weapons, according to US intelligence sources and Iraqi opposition officials.
The key meeting took place in the Afghan mountains near Kandahar in late December. The Iraqi delegation was led by Farouk Hijazi, Baghdad's ambassador in Turkey and one of Saddam's most powerful secret policemen, who is thought to have offered Bin Laden asylum in Iraq.
The Saudi-born fundamentalist's response is unknown. He is thought to have rejected earlier Iraqi advances, disapproving of the Saddam Hussein's secular Baathist regime. But analysts believe that Bin Laden's bolthole in Afghanistan, where he has lived for the past three years, is now in doubt as a result of increasing US and Saudi government pressure.
News of the negotiations emerged in a week when the US attorney general, Janet Reno, warned the Senate that a terrorist attack involving weapons of mass destruction was a growing concern. "There's a threat, and it's real," Ms Reno said, adding that such weapons "are being considered for use."
US embassies around the world are on heightened alert as a result of threats believed to emanate from followers of Bin Laden, who has been indicted by a US court for orchestrating the bombing last August of embassies in Kenya and Tanzania, in which 259 people died. US delegations in Africa and the Gulf have been shut down in recent weeks after credible threats were received.
In this year's budget, President Clinton called for an additional $2 billion to spend on counter-terrorist measures, including extra guards for US embassies around the world and funds for executive jets to fly rapid response investigative teams to terrorist incidents around the world.
Since RAF bombers took part in air raids on Iraq in December, Bin Laden declared that he considered British citizens to be justifiable targets. Vincent Cannistraro, former chief of CIA counter-terrorist operations, said: "Hijazi went to Afghanistan in December and met with Osama, with the knowledge of the Taliban leader, Mullah Omar. We are sure about that. What is the source of some speculation is what transpired."
An acting US counter-intelligence official confirmed the report. "Our understanding over what happened matches your account, but there's no one here who is going to comment on it."
Ahmed Allawi, a senior member of the opposition Iraqi National Congress (INC), based in London, said he had heard reports of the December meeting which he believed to be accurate. "There is a long history of contacts between Mukhabarat [Iraqi secret service] and Osama bin Laden," he said. Mr Hijazi, formerly director of external operations for Iraqi intelligence, was "the perfect man to send to Afghanistan".
Analysts believe that Mr Hijazi offered Mr bin Laden asylum in Iraq, most likely in return for co-operation in launching attacks on US and Saudi targets. Iraqi agents are believed to have made a similar offer to the Saudi maverick leader in the early 1990s when he was based in Sudan.
Although he rejected the offer then, Mamoun Fandy, a professor of Middle East politics at Georgetown University, said Bin Laden's position in Afghanistan is no longer secure after the Saudi monarchy cut off diplomatic relations with, and funding for, the Taleban militia movement, which controls most of the country.
Mr Fandy said senior members of the Saudi royal family told him in recent weeks that they had received assurances from the Taleban leader, Mullah Mohamed Omar, that once the radical Islamist movement secured control over Afghan territory, Bin Laden would be forced to leave. "It's a matter of time now for Osama." He said Bin Laden would have a strong ideological aversion to accepting Iraqi hospitality, but might have little choice.
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[youtube]http://www.youtube.com/watch?v=18uxVYN-5iY[/youtube]
http://www.youtube.com/watch?v=18uxVYN-5iY
Saddam has a history of supporting terrorists (1999)
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http://news.yahoo.com/s/afp/italyusciaegyptcrimeappeal
Italian court increases sentences for 23 CIA agents
ROME (AFP) – An Italian court upped the sentences for 23 CIA agents convicted in absentia of abducting an Egyptian imam in one of the biggest cases against the US "extraordinary rendition" programme.
The 23 CIA agents, originally sentenced in November 2009 to five to eight years in prison, had their sentences increased to seven to nine years on appeal in what one of the defence lawyers described as a "shocking blow" for the US.
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And who started the rendition program?
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http://articles.latimes.com/2009/feb/01/nation/na-rendition1
Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism -- aside from Predator missile strikes -- for taking suspected terrorists off the street.
The rendition program became a source of embarrassment for the CIA, and a target of international scorn, as details emerged in recent years of botched captures, mistaken identities and allegations that prisoners were turned over to countries where they were tortured.
The European Parliament condemned renditions as "an illegal instrument used by the United States." Prisoners swept up in the program have sued the CIA as well as a Boeing Co. subsidiary accused of working with the agency on dozens of rendition flights.
But the Obama administration appears to have determined that the rendition program was one component of the Bush administration's war on terrorism that it could not afford to discard.
**Let's see, keeping Gitmo open, blowing up jihadis in Pakistan with hellfire missiles, keeping the rendition program running, and tax cuts for the rich? I'm starting to like the cut of this president's jib!
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So maybe we aren't reading our friends in the liberal media as carefully as we should. Earlier this month several media sources reported that the Obama Administration will soon resume trying Guantanamo detainees in military tribunals, almost a year to the day after the prison was supposed to have been closed for good. Yet somehow we missed the avalanche of commentary denouncing "kangaroo courts," "legal black holes" and all the other epithets once reserved for the Bush Administration when it was doing precisely the same thing. Critics in Europe are also notably silent.
That said, we welcome evidence of liberal maturity in the war on terror, and in the last two years the Administration has been growing up faster than expected. The decision to resume the tribunals was forced by the Democratic Congress's decision in December to forbid the Pentagon from spending money to transfer Gitmo's remaining detainees to the U.S. mainland.
Barring that option, the Administration's only choices were to re-open the tribunals, hold the prisoners indefinitely without trial, or otherwise let them go. Given that the recidivism rate of released Gitmo detainees is estimated at 25%, we'd say the Administration is choosing wisely.
And justly. Among the first detainees likely to be tried in the tribunals is Abd al-Rahim al-Nashiri, the Saudi mastermind of the 2000 USS Cole bombing in which 17 U.S. sailors were killed. The relatives of Nashiri's victims deserve a verdict.
And the American people deserve a trial that won't be turned into a legal farce, which is what nearly happened last year in New York when terrorist Ahmed Ghailani was acquitted of 284 of the 285 counts held against him. This week Ghailani received a life sentence on that charge, saving the Administration from what might have been a major embarrassment.
Still, it's worth noting that even as the Administration prepares to try some 30 detainees, it also plans to hold another 50 without trial. We won't hold our breath awaiting the outpouring of liberal outrage. But we do breathe a sigh of relief that President Obama has seen the wisdom of his predecessor's ways.
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Judicial modesty in the war on terror is rare, so it's a pleasure to highlight this week's vindication of the principle that government officials can't be sued for their national security decisions. South Carolina District Judge Richard Mark Gergel dismissed all claims against a group of Bush Administration officials, including Donald Rumseld and Robert Gates, in a case brought by a terrorist and his lawyers at the ACLU and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School.
Jose Padilla was arrested in Chicago in 2002 amid a suspected plot to detonate a dirty bomb on U.S. soil. President Bush named him an enemy combatant—a decision that was exhaustively litigated, and the Bush Justice Department won in the Fourth Circuit Court of Appeals. In 2006 Padilla was transferred into civilian custody, granted every due process protection, convicted in a Miami court, sentenced to 17 years—and then filed civil lawsuits from his maximum-security prison cell claiming his constitutional rights had been violated.
Congress has never created a private right of action for damages against government officials for alleged constitutional deprivations, so Padilla and his white-shoe lawyers sued under the Supreme Court's 1971 Bivens decision. Bivens applied to an unlawful search, but since the mid-1980s the courts have declined to apply this standard to new contexts. In order to create new remedies, judges have to find extraordinary circumstances and then weigh the costs to government institutions and society at large.
Judge Gergel declined, writing that "one could easily imagine a massive discovery assault on the intelligence agencies of the United States Government," including subpoenas and depositions of officials with the highest national-security clearances. Litigation, he writes, risks exposing intelligence sources and methods and "A trial on the merits would be an international spectacle with Padilla, a convicted terrorist, summoning America's present and former leaders to a federal courthouse to answer his charges."
That is precisely the goal of the legal anti-antiterror left, which is using sham tort claims to intimidate anyone who believes terrorists should be treated differently than common criminals. Their goal is to abuse the courts to bankrupt the Bush officials who played key roles in the war on terror—the only option left for them, having failed to persuade a Democratic Congress and now even President Obama. Since our friends on the left will want to know, we don't mind reporting that Judge Gergel was nominated by Mr. Obama.
The reason government officials have broad legal immunity (save for criminal acts) is so they can carry out their duties in the best interest of the country without fear of personal liability. If political appointees can be sued later for their decisions, the government will be run by trial lawyers, not elected officials. Yet Padilla's lawsuit on similar grounds against former Justice Department lawyer John Yoo was waved through by a California district court and is now on appeal before the Ninth Circuit.
Judge Gergel deserves credit for choking off this agenda before it does any more damage, but Mr. Yoo may not be so lucky given the political inclinations on the left coast. We'll decline to speculate on the reasons so many in the media and political class seem to favor a terrorist who keeps losing over a former official who acted in good faith to defend America.
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Last month, the website Politico reported that the Department of Justice dropped its representation of former Defense Secretary Donald Rumsfeld, his former deputy, Paul Wolfowitz, and other defendants in a lawsuit filed by convicted al-Qaida operative Jose Padilla and his mother. The Department of Justice continues to represent Defense Secretary Robert Gates, but no longer the Bushies.
Padilla, you may recall, is an American citizen who was arrested at Chicago's O'Hare International Airport in 2002; authorities claimed that he was plotting to set off a radioactive "dirty bomb." After the Bush administration designated Padilla as an "enemy combatant," he was held in a South Carolina Navy brig for 44 months.
Padilla was not convicted for plotting a U.S. terrorist attack -- largely because the case against him was built on information gleaned during harsh interrogations. But in 2007, Padilla was convicted for "conspiracy to murder, kidnap and maim persons in a foreign country" and "material support for terrorism." A judge sentenced him to 17 years in prison.
From his cell, Padilla now is suing Rumsfeld, Wolfowitz and others on the grounds that his "enemy combatant" status, military detention and the harsh interrogations -- the use of stress positions, sleep deprivation and threats -- were unconstitutional. The suit originally named former Attorney General John Ashcroft, a number of lower-level officials from the brig and 48 unnamed John Does -- including guards and orderlies whose name tags were covered -- against whom Padilla later dropped his complaint.
Last month, U.S. District Judge Richard Gergel of South Carolina threw out Padilla's suit.
In a way, it doesn't matter. Padilla can't lose. He's in prison already. It won't hurt him to appeal Gergel. In 2005, the Fourth Circuit Court of Appeals upheld Padilla's military detention -- and still he can sue. The ACLU is involved. Padilla is only seeking $1 in damages -- but the big money, as far as taxpayers are concerned, is in the legal fees his attorneys seek.
In the meantime, defendants have had to live with a nightmare hovering over their heads. Now they face the added expense of legal bills to defend themselves for defending this country. The DOJ only pays legal fees of up to $200 per hour. Former CIA attorney W. George Jameson observed, "$200 an hour, that's kind of a junior attorney in a big law firm. That doesn't get you very far."
Padilla also is suing former Justice Department official John Yoo for writing memos that authorized the use of harsh interrogation techniques. In 2009, U.S. District Judge Jeffrey White of San Francisco ruled that the case against Yoo, who was told to hire a private attorney, can go forward. Please note: The courts haven't looked at whether Padilla's charges are factual.
Jameson recently co-founded the nonprofit Council on Intelligence Issues to provide legal assistance and other services to current and former intelligence officers. The Politico story, he told me, made the intelligence community somewhat nervous, although "it's hard to tell how nervous to be." It depends on why the DOJ did what it did.
Alas, the Justice Department won't say why it won't represent Rumsfeld and crew. Spokeswoman Tracy Schmaler explained that such "matters are confidential and covered by the attorney-client privilege." Personal counsel ensures that employees "receive full, complete and independent legal advice." An unnamed private attorney source involved in the case told Politico that the DOJ can't fulfill its duty to represent clients "zealously" for policy reasons.
Jameson tells me it is not uncommon for the feds to drop representation when there is disagreement on a case. It can be advantageous for a defendant to have a private attorney if the feds are lukewarm. One reason he is not as troubled as you might expect: "I think the president understands the importance of continuity."
Fair enough, but in dropping the Padilla defendants, Justice changed course in what seems to be a partisan move.
I fear for the next set of John Does. They're not going to be able to afford $1,000-per-hour attorneys who specialize in this area of litigation.
In August 2001, FBI supervisors impeded agents' efforts to get a search warrant for Zacarias Moussaoui's laptop. He later pleaded guilty to helping plan 9/11. Want more?
I feel for the muckety-mucks, too. They must go to sleep painfully aware that their public service now can mean endless litigation tomorrow. If they anger the other political spectrum's lawyers, the reward will be depositions, attorney consultations -- and now more likely, the lion's share of the legal tab.
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By EVAN PEREZ
New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.
The move is one of the Obama administration's most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.
The Supreme Court's 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.
That exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.
A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to "exceptional cases" where investigators "conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat." Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.
A Process for Questioning Detainees
From Miranda v. Arizona ruling: "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently."
—Chief Justice Earl Warren, 1966
Miranda v. Arizona (1966)
Landmark ruling, citing the Fifth Amendment, says suspects must be reminded of their right to avoid self incrimination.
Rhode Island v. Innis (1980)
Police can't perform questioning or its "functional equivalent" if a suspect requests an attorney.
New York v. Quarles (1984)
Police don't have to read Miranda rights if there are "overriding considerations of public safety."
Dickerson v. United States (2000)
Congress can't void Miranda rights through law.
Missouri v. Seibert (2004)
Police can't obtain a confession without a Miranda warning, then provide one and immediately obtain a second confession.
Berghuis v. Thompkins (2010)
Suspects don't have to explicitly waive their Miranda rights for a confession to be admissible.
.Matthew Miller, a Justice Department spokesman, said the memo ensures that "law enforcement has the ability to question suspected terrorists without immediately providing Miranda warnings when the interrogation is reasonably prompted by immediate concern for the safety of the public or the agents." He said "the threat posed by terrorist organizations and the nature of their attacks—which can include multiple accomplices and interconnected plots—creates fundamentally different public safety concerns than traditional criminal cases."
Attorney General Eric Holder suggested changing the guidelines last year after dust-ups over Miranda's use in two major domestic-terror arrests. The suspect in the Christmas Day 2009 bombing, Umar Farouk Abdulmutallab, was questioned by FBI agents for less than an hour before being read his rights. Times Square bombing suspect Faisal Shahzad was questioned for three hours.
In both cases, the administration said suspects provided valuable information to the FBI despite being advised of their rights. But the decision nonetheless provoked criticism from Republicans and some Democrats who said an opportunity to gain time-sensitive intelligence was lost.
The new guidelines could blunt criticism from Republicans, many of whom have pushed for terror suspects to be sent to military detention, where they argue that rigid Miranda restrictions don't apply. But many liberals will likely oppose the move, as might some conservatives who believe the administration doesn't have legal authority to rein in such rights.
The Justice Department believes it has the authority to tinker with Miranda procedures. Making the change administratively rather than through legislation in Congress, however, presents legal risks.
"I don't think the administration can accomplish what I think needs to be done by policy guidance alone," said California Rep. Adam Schiff, the top Democrat on the House Intelligence Committee. "It may not withstand the scrutiny of the courts in the absence of legislation."
New York Republican Peter King, chairman of the House homeland-security committee, is among the lawmakers who welcomed Mr. Holder's call to change Miranda. At a hearing last year, Mr. King said, "It's important that we ensure that the reforms do go forward and that at the very least the attorney general consults with everyone in the intelligence community before any Miranda warning is given."
The administration suggested legislation last year to alter Miranda but was rebuffed by Congress, administration officials said. Its proposals faltered due to objections from Democrats, who had no appetite for tinkering with Supreme Court precedent, and Republicans who aired civil-liberties concerns or rejected civilian custody for terror suspects.
The Miranda protocols have been controversial since the high court formalized a practice that was already in use by the FBI, albeit not uniformly. Conservatives have long argued that the warning impedes law enforcement's ability to protect the public.
President Barack Obama has grappled with a web of terrorism policies cobbled together since the Sept. 11, 2001, attacks.
Before becoming president, Mr. Obama had criticized the Bush administration for going outside traditional criminal procedures to deal with terror suspects, and for bypassing Congress in making rules to handle detainees after 9/11. He has since embraced many of the same policies while devising additional ones—to the disappointment of civil-liberties groups that championed his election. In recent weeks, the administration formalized procedures for indefinitely detaining some suspects at Guantanamo Bay, Cuba, allowing for periodic reviews of those deemed too dangerous to set free.
The Bush administration, in the aftermath of 9/11, chose to bypass the Miranda issue altogether as it crafted a military-detention system that fell outside the rules that govern civilians. Under Mr. Bush, the government used Miranda in multiple terror cases. But Mr. Bush also ordered the detention of two people in a military brig as "enemy combatants." The government eventually moved both suspects—Jose Padilla, a U.S. citizen, and Ali al-Marri, a Qatari man—into the federal criminal-justice system after facing legal challenges. In other cases, it processed suspects through the civilian system.
An increase in the number of domestic-terror cases in recent years has made the issue more pressing.
The Miranda change leaves other key procedures in place, notably federal rules for speedy presentation of suspects before a magistrate, normally within 24 hours. Legal experts say those restrictions are bigger obstacles than Miranda to intelligence gathering. The FBI memo doesn't make clear whether investigators seeking exemptions would have to provide a Miranda warning at the time of such a hearing.
Also unchanged is the fact that any statements suspects give during such pre-Miranda questioning wouldn't be admissible in court, the memo says.
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Bwahahahahahaha!
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Although calling America an empire irks me, and I think the following piece by Stratfor's George Friedman unfair in how little respect it gives to the resolution Bush got from Congress authorizing Iraq-2, overall the piece addresses in a serious manner matters that do need serious consideration.
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What Happened to the American Declaration of War?
March 29, 2011
By George Friedman
In my book “The Next Decade,” I spend a good deal of time considering the relation of the American Empire to the American Republic and the threat the empire poses to the republic. If there is a single point where these matters converge, it is in the constitutional requirement that Congress approve wars through a declaration of war and in the abandonment of this requirement since World War II. This is the point where the burdens and interests of the United States as a global empire collide with the principles and rights of the United States as a republic.
World War II was the last war the United States fought with a formal declaration of war. The wars fought since have had congressional approval, both in the sense that resolutions were passed and that Congress appropriated funds, but the Constitution is explicit in requiring a formal declaration. It does so for two reasons, I think. The first is to prevent the president from taking the country to war without the consent of the governed, as represented by Congress. Second, by providing for a specific path to war, it provides the president power and legitimacy he would not have without that declaration; it both restrains the president and empowers him. Not only does it make his position as commander in chief unassailable by authorizing military action, it creates shared responsibility for war. A declaration of war informs the public of the burdens they will have to bear by leaving no doubt that Congress has decided on a new order — war — with how each member of Congress voted made known to the public.
Almost all Americans have heard Franklin Roosevelt’s speech to Congress on Dec. 8, 1941: “Yesterday, Dec. 7, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan … I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, Dec. 7, a state of war has existed between the United States and the Japanese Empire.”
It was a moment of majesty and sobriety, and with Congress’ affirmation, represented the unquestioned will of the republic. There was no going back, and there was no question that the burden would be borne. True, the Japanese had attacked the United States, making getting the declaration easier. But that’s what the founders intended: Going to war should be difficult; once at war, the commander in chief’s authority should be unquestionable.
Forgoing the Declaration
It is odd, therefore, that presidents who need that authorization badly should forgo pursuing it. Not doing so has led to seriously failed presidencies: Harry Truman in Korea, unable to seek another term; Lyndon Johnson in Vietnam, also unable to seek a new term; George W. Bush in Afghanistan and Iraq, completing his terms but enormously unpopular. There was more to this than undeclared wars, but that the legitimacy of each war was questioned and became a contentious political issue certainly is rooted in the failure to follow constitutional pathways.
In understanding how war and constitutional norms became separated, we must begin with the first major undeclared war in American history (the Civil War was not a foreign war), Korea. When North Korea invaded South Korea, Truman took recourse to the new U.N. Security Council. He wanted international sanction for the war and was able to get it because the Soviet representatives happened to be boycotting the Security Council over other issues at the time.
Truman’s view was that U.N. sanction for the war superseded the requirement for a declaration of war in two ways. First, it was not a war in the strict sense, he argued, but a “police action” under the U.N. Charter. Second, the U.N. Charter constituted a treaty, therefore implicitly binding the United States to go to war if the United Nations so ordered. Whether Congress’ authorization to join the United Nations both obligated the United States to wage war at U.N. behest, obviating the need for declarations of war because Congress had already authorized police actions, is an interesting question. Whatever the answer, Truman set a precedent that wars could be waged without congressional declarations of war and that other actions — from treaties to resolutions to budgetary authorizations — mooted declarations of war.
If this was the founding precedent, the deepest argument for the irrelevancy of the declaration of war is to be found in nuclear weapons. Starting in the 1950s, paralleling the Korean War, was the increasing risk of nuclear war. It was understood that if nuclear war occurred, either through an attack by the Soviets or a first strike by the United States, time and secrecy made a prior declaration of war by Congress impossible. In the expected scenario of a Soviet first strike, there would be only minutes for the president to authorize counterstrikes and no time for constitutional niceties. In that sense, it was argued fairly persuasively that the Constitution had become irrelevant to the military realities facing the republic.
Nuclear war was seen as the most realistic war-fighting scenario, with all other forms of war trivial in comparison. Just as nuclear weapons came to be called “strategic weapons” with other weapons of war occupying a lesser space, nuclear war became identical with war in general. If that was so, then constitutional procedures that could not be applied to nuclear war were simply no longer relevant.
Paradoxically, if nuclear warfare represented the highest level of warfare, there developed at the lowest level covert operations. Apart from the nuclear confrontation with the Soviets, there was an intense covert war, from back alleys in Europe to the Congo, Indochina to Latin America. Indeed, it was waged everywhere precisely because the threat of nuclear war was so terrible: Covert warfare became a prudent alternative. All of these operations had to be deniable. An attempt to assassinate a Soviet agent or raise a secret army to face a Soviet secret army could not be validated with a declaration of war. The Cold War was a series of interconnected but discrete operations, fought with secret forces whose very principle was deniability. How could declarations of war be expected in operations so small in size that had to be kept secret from Congress anyway?
There was then the need to support allies, particularly in sending advisers to train their armies. These advisers were not there to engage in combat but to advise those who did. In many cases, this became an artificial distinction: The advisers accompanied their students on missions, and some died. But this was not war in any conventional sense of the term. And therefore, the declaration of war didn’t apply.
By the time Vietnam came up, the transition from military assistance to advisers to advisers in combat to U.S. forces at war was so subtle that there was no moment to which you could point that said that we were now in a state of war where previously we weren’t. Rather than ask for a declaration of war, Johnson used an incident in the Tonkin Gulf to get a congressional resolution that he interpreted as being the equivalent of war. The problem here was that it was not clear that had he asked for a formal declaration of war he would have gotten one. Johnson didn’t take that chance.
What Johnson did was use Cold War precedents, from the Korean War, to nuclear warfare, to covert operations to the subtle distinctions of contemporary warfare in order to wage a substantial and extended war based on the Tonkin Gulf resolution — which Congress clearly didn’t see as a declaration of war — instead of asking for a formal declaration. And this represented the breakpoint. In Vietnam, the issue was not some legal or practical justification for not asking for a declaration. Rather, it was a political consideration.
Johnson did not know that he could get a declaration; the public might not be prepared to go to war. For this reason, rather than ask for a declaration, he used all the prior precedents to simply go to war without a declaration. In my view, that was the moment the declaration of war as a constitutional imperative collapsed. And in my view, so did the Johnson presidency. In hindsight, he needed a declaration badly, and if he could not get it, Vietnam would have been lost, and so may have been his presidency. Since Vietnam was lost anyway from lack of public consensus, his decision was a mistake. But it set the stage for everything that came after — war by resolution rather than by formal constitutional process.
After the war, Congress created the War Powers Act in recognition that wars might commence before congressional approval could be given. However, rather than returning to the constitutional method of the Declaration of War, which can be given after the commencement of war if necessary (consider World War II) Congress chose to bypass declarations of war in favor of resolutions allowing wars. Their reason was the same as the president’s: It was politically safer to authorize a war already under way than to invoke declarations of war.
All of this arose within the assertion that the president’s powers as commander in chief authorized him to engage in warfare without a congressional declaration of war, an idea that came in full force in the context of nuclear war and then was extended to the broader idea that all wars were at the discretion of the president. From my simple reading, the Constitution is fairly clear on the subject: Congress is given the power to declare war. At that moment, the president as commander in chief is free to prosecute the war as he thinks best. But constitutional law and the language of the Constitution seem to have diverged. It is a complex field of study, obviously.
An Increasing Tempo of Operations
All of this came just before the United States emerged as the world’s single global power — a global empire — that by definition would be waging war at an increased tempo, from Kuwait, to Haiti, to Kosovo, to Afghanistan, to Iraq, and so on in an ever-increasing number of operations. And now in Libya, we have reached the point that even resolutions are no longer needed.
It is said that there is no precedent for fighting al Qaeda, for example, because it is not a nation but a subnational group. Therefore, Bush could not reasonably have been expected to ask for a declaration of war. But there is precedent: Thomas Jefferson asked for and received a declaration of war against the Barbary pirates. This authorized Jefferson to wage war against a subnational group of pirates as if they were a nation.
Had Bush requested a declaration of war on al Qaeda on Sept. 12, 2001, I suspect it would have been granted overwhelmingly, and the public would have understood that the United States was now at war for as long as the president thought wise. The president would have been free to carry out operations as he saw fit. Roosevelt did not have to ask for special permission to invade Guadalcanal, send troops to India, or invade North Africa. In the course of fighting Japan, Germany and Italy, it was understood that he was free to wage war as he thought fit. In the same sense, a declaration of war on Sept. 12 would have freed him to fight al Qaeda wherever they were or to move to block them wherever the president saw fit.
Leaving aside the military wisdom of Afghanistan or Iraq, the legal and moral foundations would have been clear — so long as the president as commander in chief saw an action as needed to defeat al Qaeda, it could be taken. Similarly, as commander in chief, Roosevelt usurped constitutional rights for citizens in many ways, from censorship to internment camps for Japanese-Americans. Prisoners of war not adhering to the Geneva Conventions were shot by military tribunal — or without. In a state of war, different laws and expectations exist than during peace. Many of the arguments against Bush-era intrusions on privacy also could have been made against Roosevelt. But Roosevelt had a declaration of war and full authority as commander in chief during war. Bush did not. He worked in twilight between war and peace.
One of the dilemmas that could have been avoided was the massive confusion of whether the United States was engaged in hunting down a criminal conspiracy or waging war on a foreign enemy. If the former, then the goal is to punish the guilty. If the latter, then the goal is to destroy the enemy. Imagine that after Pearl Harbor, FDR had promised to hunt down every pilot who attacked Pearl Harbor and bring them to justice, rather than calling for a declaration of war against a hostile nation and all who bore arms on its behalf regardless of what they had done. The goal in war is to prevent the other side from acting, not to punish the actors.
The Importance of the Declaration
A declaration of war, I am arguing, is an essential aspect of war fighting particularly for the republic when engaged in frequent wars. It achieves a number of things. First, it holds both Congress and the president equally responsible for the decision, and does so unambiguously. Second, it affirms to the people that their lives have now changed and that they will be bearing burdens. Third, it gives the president the political and moral authority he needs to wage war on their behalf and forces everyone to share in the moral responsibility of war. And finally, by submitting it to a political process, many wars might be avoided. When we look at some of our wars after World War II it is not clear they had to be fought in the national interest, nor is it clear that the presidents would not have been better remembered if they had been restrained. A declaration of war both frees and restrains the president, as it was meant to do.
I began by talking about the American empire. I won’t make the argument on that here, but simply assert it. What is most important is that the republic not be overwhelmed in the course of pursuing imperial goals. The declaration of war is precisely the point at which imperial interests can overwhelm republican prerogatives.
There are enormous complexities here. Nuclear war has not been abolished. The United States has treaty obligations to the United Nations and other countries. Covert operations are essential, as is military assistance, both of which can lead to war. I am not making the argument that constant accommodation to reality does not have to be made. I am making the argument that the suspension of Section 8 of Article I as if it is possible to amend the Constitution with a wink and nod represents a mortal threat to the republic. If this can be done, what can’t be done?
My readers will know that I am far from squeamish about war. I have questions about Libya, for example, but I am open to the idea that it is a low-cost, politically appropriate measure. But I am not open to the possibility that quickly after the commencement of hostilities the president need not receive authority to wage war from Congress. And I am arguing that neither the Congress nor the president have the authority to substitute resolutions for declarations of war. Nor should either want to. Politically, this has too often led to disaster for presidents. Morally, committing the lives of citizens to waging war requires meticulous attention to the law and proprieties.
As our international power and interests surge, it would seem reasonable that our commitment to republican principles would surge. These commitments appear inconvenient. They are meant to be. War is a serious matter, and presidents and particularly Congresses should be inconvenienced on the road to war. Members of Congress should not be able to hide behind ambiguous resolutions only to turn on the president during difficult times, claiming that they did not mean what they voted for. A vote on a declaration of war ends that. It also prevents a president from acting as king by default. Above all, it prevents the public from pretending to be victims when their leaders take them to war. The possibility of war will concentrate the mind of a distracted public like nothing else. It turns voting into a life-or-death matter, a tonic for our adolescent body politic.
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Khalid Shaikh Mohammed to Be Tried by Military Commission at Guantánamo, in Reversal
In a major reversal, the Obama administration has decided to
try Khalid Sheikh Mohammed for his role in the attacks of
Sept. 11 before a military commission at Guantánamo Bay,
Cuba, and not in a civilian courtroom.
Attorney General Eric H. Holder Jr. is expected to announce
on Monday afternoon that Mr. Mohammed, the self-described
mastermind of the attacks, and four other accused
conspirators will face charges before a panel of military
officers, a law enforcement official said. The Justice
Department has scheduled a press conference for 2 p.m.
Eastern time.
Mr. Holder, who had wanted to prosecute Mr. Mohammed before a
regular civilian court in New York City, changed his mind
after Congress imposed a series of restrictions barring the
transfer of Guantánamo detainees into the United States,
making such a trial impossible for now, the official said.
Read More:
http://www.nytimes.com?emc=na
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What? Obama didn't close Gitmo?
Where are Rogt and Milt?
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http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities/
Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.
___________________________________________________________
This brings me to the fourth step in my strategy: I will make clear that the days of compromising our values are over.
Major General Paul Eaton had a long and distinguished career serving this country. It included training the Iraqi Army. After Abu Ghraib, his senior Iraqi advisor came into his office and said: "You have no idea how this will play out on the streets of Baghdad and the rest of the Arab world. How can this be?" This was not the America he had looked up to.
As the counter-insurgency manual reminds us, we cannot win a war unless we maintain the high ground and keep the people on our side. But because the Administration decided to take the low road, our troops have more enemies. Because the Administration cast aside international norms that reflect American values, we are less able to promote our values. When I am President, America will reject torture without exception. America is the country that stood against that kind of behavior, and we will do so again.
I also will reject a legal framework that does not work. There has been only one conviction at Guantanamo. It was for a guilty plea on material support for terrorism. The sentence was 9 months. There has not been one conviction of a terrorist act. I have faith in America's courts, and I have faith in our JAGs. As President, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists.
Remarks of Senator Obama: The War We Need to Win
Washington, DC | August 01, 2007
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....For Obama's flip-flops.
http://politicalticker.blogs.cnn.com/2011/04/04/gitmo-tribunal-move-the-latest-in-a-long-line-of-obama-shifts/
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Detention, Interrogation, and Targeted Killing, and a Conference at Penn
Kenneth Anderson • April 12, 2011 10:58 am
The LA Times has a good story on the complete backing away of the CIA from any new detentions or interrogations in counterterrorism under the Obama administration (though it started back under the Bush administration). It describes a general paralysis of policy, frozen among a variety of government actors wary of doing anything that might restart the detention wars of the Bush administration. It’s a well reported piece by Ken Delanian, April 10, 2011.
The U.S. has made no move to interrogate or seek custody of Indonesian militant Umar Patek since he was apprehended this year by officials in Pakistan with the help of a CIA tip, U.S. and Pakistani officials say.
The little-known case highlights a sharp difference between President Obama’s counter-terrorism policy and that of his predecessor, George W. Bush. Under Obama, the CIA has killed more people than it has captured, mainly through drone missile strikes in Pakistan’s tribal areas. At the same time, it has stopped trying to detain or interrogate suspects caught abroad, except those captured in Iraq and Afghanistan.
“The CIA is out of the detention and interrogation business,” said a U.S. official who is familiar with intelligence operations but was not authorized to speak publicly.
The article goes on to discuss the policy paralysis underlying this condition. But I want to add one caution. The article says, as I and many others have argued would take place over time given the incentives not to detain people, that the Obama administration uses targeted killing.
Despite having made exactly this point myself many times, it bears noting that there are plenty of independent reasons for using targeted killings in many situations — avoiding detention is almost certainly far less important than the current meme suggests. Even if there were some protocol for detaining and interrogating people, there are plenty of circumstances in which seeking to capture is too risky and other operational reasons. More interesting is that the article’s main focus is on a person captured by Indonesia from a CIA tip, not targeted with a missile. Even in that case, in which it is not a choice between targeted killing and detention, the CIA still does not want custody, even though the article says that experts believe that the CIA could get far more and better information if it controlled the detention and interrogation process. This is far from an ideal situation, of course.
While on the topic of targeted killing and drone warfare, let me point readers to a conference at University of Pennsylvania Law School this weekend, a joint effort among lawyers, philosophers, diplomats, and national security and military personnel. It’s an impressive lineup, and you can even get CLE credit, I believe. (I’ve put the announcement below the fold.)
I’ll be talking at the Penn conference about an ethical tension between jus in bello and jus ad bellum. Targeted killing through drones results (I will take by assumption) in less civilian damage in the category of jus in bello. According to a common argument made today, however, that greater “efficiency” in jus in bello considerations thereby makes resort to force by the United States too easy, as a jus ad bellum matter, and indeed possibly “inefficient.” Why? According to this argument, the lack of personal risk to US personnel in drone warfare lowers to an inefficient level the disincentives upon the US to use force.
I have many problems with this argument. But I do think it’s an interesting one from a philosophical perspective, because even if the jus in bello and jus ad bellum considerations are not strictly inconsistent, there is at least substantial tension between them. Moreover, the ideas of “efficiency jus in bello” and “efficiency jus ad bellum” are interesting all on their own, even if I think that particularly the idea of an efficient level of violence, or an efficient level of incentives and disincentives to resort to force, premised around personal risk to US personnel, is deeply incoherent. But the incoherency seems to me to take part in an even deeper, and still more wrong, idea that an “efficient level of resort to force” can be extracted independent of the idea of “sides” in war with incommensurate ends.
I’m not a philosopher, though, and find all this philosophy stuff difficult. So I have been careful to load up my remarks with a lot of practical stuff about where, on the basis of my conversations, reading, discussions, etc., with lots of different folks, both targeted killing and drone warfare are likely to go. The conference has a great lineup of experts from many fields, however — so even if my remarks are a big miss, in good conscience I can still highly recommend it to you.
http://volokh.com/2011/04/12/detention-interrogation-and-targeted-killing-and-a-conference-at-penn/
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Is the Biggest Terror Catch on President Obama's Watch Slipping Away?
By Catherine Herridge
Published April 12, 2011 | FoxNews.com
The Bali Nightclub bombing which killed more than 200 nearly a decade ago was one of the worst terrorist attacks to come after 9-11.
A tip from the CIA has now led to the capture in Pakistan of Umar Patek, an Indonesian national described as an alleged facilitator of the attack, and who is considered one of the world's most wanted terrorists.
Though Patek is arguably the highest value detainee picked up on President Obama's watch, there was no public comment from the White House on efforts to question him.
“I don’t have anything to say in response to that from here,” White House Spokesman Jay Carney told Fox News.
With no confirmation that Patek is being interrogated by U.S. intelligence agencies, critics of the Obama Administration say an opportunity to gain real time intelligence is being lost for good.
“This guy survived in a sanctuary in the Philippines for almost a decade,” Marc Thiessen, a visiting fellow at the American Enterprise Institute and author of the book “Courting Disaster” told Fox News. “And all of a sudden he emerged from his sanctuary to meet with al-Qaeda leaders. This guy knows something and we need to find out what he knows.”
Thiessen, who served under President George W. Bush, as well as other analysts say a larger issue is at play.
In the summer of 2009, the Obama administration put an end to the controversial CIA interrogations. Critics said the CIA program amounted to torture.
In its place, the high value interrogation group or HIG, was set up at the FBI, but it was not even used to question the alleged underwear bomber in December 2009.
Former CIA officer Phil Mudd says continuing litigation over the interrogation programs is making the agency and others risk averse.
“There are a lot of inquiries into CIA black sites,” Mudd said in reference to the CIA’s secret prisons where detainees were interrogated under the controversial program. “So the CIA got out of the business of holding detainees.”
Read more: http://www.foxnews.com/politics/2011/04/12/biggest-terror-catch-president-obamas-watch-slipping-away/
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http://opiniojuris.org/2010/12/15/still-a-bad-idea-military-commissions-under-the-obama-administration/
Still a Bad Idea: Military Commissions Under the Obama Administration
by David Glazier
David Glazier is a Professor of Law at Loyola Law School in Los Angeles. He has written, under the same title as this post, a paper critiquing U.S. military commissions which you can download from SSRN here.
As the Senate considers an outright ban on the transfer of detainees from Guantánamo to the United States this week, it seems obvious that many proponents intend that this will lead to military commission trials of “high value” detainees held there. Although the government has successfully prosecuted several hundred suspected terrorists in federal courts since 9/11 while securing only five extremely problematic “convictions” at Guantánamo, the myth that military commissions are a superior forum for trying terrorists inexplicably persists. The media spin on the recent federal trial of Ahmed Ghailani has further fueled this erroneous perception. Although Ghailani, who is not a high-level al Qaeda figure, now faces the real possibility of life in a supermax prison, critics and mainstream media describe the case as a “near acquittal” rather than the substantial victory it represents. Despite popular perceptions to the contrary, it is the military commissions which pose the much higher risk of failure in terrorism trials. The commissions have serious legal flaws which provide a number of grounds on which any convictions they render may be overturned, their ad hoc courtroom proceedings have regularly proved embarrassing to objective observers, and the controversy generated by their continued use will predictably have adverse consequences for U.S. national interests.
All five completed commission cases have involved highly questionable applications of substantive law. While the Military Commission Acts of 2006/2009 define offenses the commissions can try, they depend on these being pre-existing war crimes to avoid both U.S. constitutional and international prohibitions on ex-post facto crime creation when applied to detainees who were already in custody when the laws were passed. Yet virtually all LOAC experts agree that the primary offenses charged to date, conspiracy and providing material support to terrorism, are not crimes that can validly be prosecuted by a law of war tribunal. Omar Khadr was charged with additional offenses, including murder in violation of the law of war which could be war crimes in ordinary conflict scenarios, but not as applied to him. Three of the five cases – those of David Hicks, Ibrahim al Qosi, and Khadr – were resolved by plea deals in which the defendants had to waive all right to appeal even though that is forbidden by the court-martial practice on which the commissions are supposed to be based, so their infirmities will not be subject to appeal. Salim Hamdan, in contrast has appealed his conviction but although he has been free for almost two years, his case has still not even gotten through the first tier Court of Military Commission Review (CMCR), mocking the idea that military judges will administer justice more efficiently than their civilian counterparts. Although Ali al Bahlul refused to allow his attorney, David Frakt, to mount any defense on his behalf at all, Frakt nevertheless preserved some issues for appeal that also have yet to be decided at any level. The MCA provides for cases surviving the CMCR to be heard by the regular Court of Appeals for the D.C. Circuit, with the potential for both Supreme Court consideration as well as collateral review once direct appeals are complete. So these cases will be litigated for years to come.
While the substantive law issues alone should be sufficient to both overturn these past cases and derail many future charges, there are a slew of additional issues stemming from unique aspects of the commission process that provide additional grounds for challenge which are wholly lacking from federal trials. Key World War II precedents, for example, only uphold the authority of military officers to convene law of war commissions in the theater of their command and try violations committed during the interval from the “declaration of war” until the conclusion of a final peace treaty. It is thus questionable as to whether any pre-9/11 conduct can validly be tried by the commissions. There is also reason to doubt that a civilian official without any command authority can perform the multiple roles assigned the convening authority thousands of miles removed from the “theater” in which the conduct took place.
There are numerous other flaws including the inability of the defendants to select counsel they trust, the tribunals’ reliance on over-classification practices, use of evidence obtained through coercion despite the statutory ban on doing so, and lack of equal access to witnesses and flawed discovery processes that collectively undermine the ability of defendants to mount credible defenses. The use of substandard tribunals to try aliens which we are wholly unwilling to submit our own nationals to is entirely unprecedented in the history of U.S. military justice and provides the potential basis for an equal protection challenge. If reviewing courts are committed to justice, any of these flaws by themselves could form the basis for overturning convictions. Collectively they will undermine the credibility of any verdicts returned, chilling counter-terrorism cooperation by our friends and allies, while fueling recruitment and fund raising by our adversaries.
The Ghailani trial in contrast, saw the application of recognized charges and rulings that time in military custody does not violate speedy trial timelines and that detainee abuse does not require dismissal on the basis of outrageous government conduct. Although a district court decision is without formal precedential value, it is predictable that other federal judges would reach the same result. The idea that military commission rules offer any legitimate advantage over federal courts is simply wrong. While Ghailani’s judge did exclude one witness the government desired to use on the basis that he had been identified through coercive interrogation, military commission rules should have produced the same result. In general, military commission rules for handling classified information are now very closely based on those used in federal courts, while issues such as battlefield intelligence collection concerns are total red herrings – the Supreme Court holds the 4th Amendment inapplicable outside the U.S.
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The idea of trials in the first place is stupid. They have no rights. AQ exists outside of civilization and deserves none of it's protections.
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Hostis Humani Generis definition:
Latin: the enemy of mankind.
Just as they have no rules in waging war against us, we should have no rules in dealing with them.
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THEY may not deserve any better, but it serves us to stay who we are, yes?
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Stay who we are? You mean overlegalized and to timid to fight a total war to ensure our survival?
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I agree with Guro Crafty here, even if he says this disingenuously (and I can't tell if he is playing "devil's advocate" here). If the United States wants to survive, IMHO we need to survive by following that which made us great to begin with. We, as a nation, have espoused the tenets of liberty worldwide. If we fight for democracy, and we have, than we must necessarily fight for the protections for all.
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War is not a legal procedure. We didn't seek indictments for Hitler and Tojo. Truman didn't seek a legal opinion before dropping nukes on Japan.
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No intention to be disingenuous here; I'm just saying that while it may momentarily feel good to say "If they have no rules, then we have no rules" IMHO this
a) is wrong
b) does not work as well as having something higher for which we fight, which informs how we fight.
If I may anticipate an argument GM may be tempted to make, this does not mean I am in accord with pussified legalistic claptrap.
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INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD
Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General's Office, 1863, Washington 1898: Government Printing Office.
http://avalon.law.yale.edu/19th_century/lieber.asp#sec4
SECTION IV
Partisans - Armed enemies not belonging to the hostile army - Scouts - Armed prowlers - War-rebels
Art. 81.
Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.
Art. 82.
Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.
Art. 83.
Scouts, or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.
Art. 84.
Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.
Art. 85.
War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they if discovered and secured before their conspiracy has matured to an actual rising or armed violence.
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Truly and without any sarcasm whatsoever I say that that is quite fascinating-- and legally irrelevant. Since the Civil War, things have changed quite a bit. For example, we are now signatories to the Geneva Convention.
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And al qaeda signed the conventions when?
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How terrorists were dealt with by FDR
Excerpts from Roosevelt's Secret War: FDR and World War II Espionage, Joseph E. Persico, 2001.
On June 19 [1942] the President received an excited call from Francis Biddle, his attorney general. Six days before, Biddle told the President, "at 1:30 A.M. an unarmed Coast Guard patrolman near Amagansett, Montauk Point, Long Island, discovered two men placing material in a hole they had dug; one of them covered the patrolman with a gun, gave him $260 and told him to keep his mouth shut. I shall, of course, keep you informed." As J. Edgar Hoover's nominal boss, Biddle later recalled the FBI chief's demeanor while describing the plan to track down the rest of the saboteurs: "His eyes were bright, his jaw set, excitement flickering around the edge of his nostrils," Biddle remembered. The question now was how much to tell the public. Hoover wanted no announcement that might alert the men still at large. The President agreed, and the press was, for the moment, frozen out of the story.
FDR's longstanding preoccupation with sabotage now seemed validated. Biddle admitted, "1 had a bad week trying to sleep as I thought of the possibilities. The saboteurs might have other caches hidden, and at any moment an explosion was possible." [Saboteur] Dasch had, in fact, revealed that, along with their transportation and industrial targets, the Pastorius mission was supposed to spread terror by placing firebombs in department stores and delayed-action explosives in hotels and in crowded railroad stations.
On June 27, ten days after the Kerling team landed in Florida, the President, then at Hyde Park, took another call from Biddie. Hoover's G-men had seven of the saboteurs in custody and were about to arrest the last one. Nearly $174,000 of their Abwehr stake had been seized. FDR responded with the habitual geniality that Biddle, a stiff Philadelphia Main Liner, envied. "Not enough, Francis," Roosevelt said. "Let's make real money out of them. Sell the rights to Barnum and Bailey for a million and a half --- the rights to take them around the country in lion cages at so much a head." Now the tale could be told, and in the ensuing publicity, Coast Guardsman Cullen became a national hero. Hoover played the capture of the ring as a case solved by the FBI, making no public mention of the fact that Dasch had turned himself in and squealed on his comrades.
Three days after all eight saboteurs were in custody, FDR sent Biddle a memo making clear his expectations. "The two Americans are guilty of treason," he told the attorney general. "I do not see how they can offer any adequate defense. . . it seems to me that the death penalty is almost obligatory." As for the six German citizens, "They were apprehended in civilian clothes. This is an absolute parallel of the Case of Major [John] Andre in the Revolution and of Nathan Hale. Both of these men were hanged." The President hammered home his point once more: "The death penalty is called for by usage and by the extreme gravity of the war aim and the very existence of our American govemment." Biddle had never quite overcome his awe in dealing with FDR. Still, the nation's chief law enforcement official was troubled, finding himself trapped between the President's questionable pressure and his own reverence for the law. The Germans had been apprehended so quickly, Biddle recognized, that "they had not committed any act of sabotage. Probably an indictment for attempted sabotage would not have been sustained in a civil court on the grounds that the preparations and landings were not close enough to the planned acts of sabotage to constitute attempt. If a man buys a pistol, intending murder, that is not an attempt at murder." In a civilian court the Germans might at best be convicted of conspiracy, which Biddle estimated would carry a maximum sentence of three years. This outcome, he knew, would never satisfy Roosevelt.
FDR essentially took charge of the case. He told Biddle that he wanted the eight agents tried, not in a civilian court, but by a military tribunal, which he himself would appoint. They had forfeited any right to a civilian trial, as Roosevelt put it, because "[t]hese men had penetrated battlelines strung on land along our two coasts and guarded on the sea by our destroyers, and were waging battle within our country." They fell under the Law of War. A military tribunal would be quick, not subject to the protracted appeals procedures of civilian courts. It would not be hog-tied by the criminal courts' exacting rules of evidence. It could impose the death sentence, not as the civil courts required, by a unanimous verdict, but by a two-thirds vote. A military tribunal offered the advantages and the assured outcome that the President wanted. A civilian court was out of the question. FDR told Biddle, "I want one thing clearly understood, Francis: I won't give them up . . . I won't hand them over to any United States Marshall armed with a writ of habeas corpus. Understand!" Averell Harriman, FDR's special envoy to Moscow, had once described Roosevelt's "Dutch jaw -- and when that Dutch jaw was set you couldn't move him." Biddle practically felt the jaw's thrust, and dutifully followed the President's instructions. Conviction should be simple, Biddle promised FDR, since "[t]he major violation of the Law of War is crossing behind the lines of a belligerent to commit hostile acts without being in uniform."
The British, early in the war, had imposed the traditional penalty on captured spies and saboteurs, execution. Seven arrested German agents were hanged with numerous others awaiting the gallows within months of the war's outbreak. Then, in 1940, a thirty-year-old Scottish major, energetic, articulate, imaginative Thomas A. "Tar" Robertson, assigned to MIS, proposed a new approach. What use to Britain were German spies moldering in anonymous graves? he asked his superiors. Instead, make an offer to them, turn or die. Thus was born the Double Cross, or XX, operation whereby most captured spies chose turning to dying. Some became double agents and sent false information back to Germany under British control. In other cases, British radiomen mastered "the fist," the distinctive sending style of these agents, and convincingly transmitted Double Cross fabrications to Germany. Double Cross was a rousing success. Only one German spy is believed to have reached Britain during the war without being caught. The alternative of turning the eight captured Germans never entered FDR's head. Their deaths were to serve notice to the Nazis of the certain fate of any other spies and saboteurs sent to America.
On July 2 the President announced that the eight accused would stand trial before a military commission composed of seven generals, and they would be charged with violating the eighty-first and eighty-second Articles of War dealing with espionage, sabotage, and conspiracy. Court-appointed lawyers for the defendants made a game effort to move the trial to a civilian court, taking the constitutional issue all the way to the Supreme Court, but the justices backed the legality of a military tribunal. Biddle himself was to prosecute, an unusual move, having a civilian serve as prosecutor in a military proceeding. But FDR was taking no chances. The Army's Judge Advocate General was rusty and had not tried a case for over twenty years. FDR wanted his own man before the bar.
On June 8 the prisoners, held in the District of Columbia jail, were shaved by prison barbers, lest they put the razor to their own wrists or throats, and hustled into two armored vans guarded by gun-toting military police. Nine Washington motorcycle patrolmen roared alongside, escorting the vans to the Department of Justice. Enterprising vendors soon were doing a thriving business selling ice cream and hot dogs to the crowds that gathered outside the department's iron gate every day to gawk at the enemy. The trial was held in Assembly Hall # 1 on the fifth floor of the Justice Department, the windows shrouded by black curtains. As the trial opened, Hoover, sitting next to Biddle, fed pages of evidence to the attorney general. During a recess, one of the defendants asked the presiding general for a cigarette. The general responded stuffily that Army regulations made no provision for such a request. A disgusted Hoover took out a pack of cigarettes and handed it to the German.
In twenty-six days it was over. All eight were sentenced to death. The generals sent their verdict to the President. Roosevelt, acting, in effect, as the court of last resort, confirmed six of the death sentences, but commuted Burger's sentence to life and Dasch's to thirty years for their willingness to betray their comrades. August 8 was set for the executions, which would take place in the electric chair on the third floor of the District of Columbia jail. Eight weeks had elapsed from the night the first saboteurs had landed on Long Island.
On execution day, FDR was at Shangri-la [now Camp David] , the presidential hideaway in western Maryland's Catoctin Mountains. The President liked to sit in the small screened porch playing solitaire or gazing by the hour out at the Catoctin Valley, lost in his private thoughts. This evening, he gathered his guests around him in the living room -- Sam Rosenman and his wife, Dorothy, Daisy Suckley, Grace Tully, poet Archibald MacLeish and his wife, Ada. The First Lady was tied up in New York. The President settled into an easy chair and seemed in unusually fine fettle. He commenced his ceremonial role, mixing the cocktails. He was conceded to make a fine martini and an old-fashioned, though lately he had become enamored of a drink made of gin and grapefruit juice, which most guests found vile. As he mixed, he swapped jests with Rosenman and MacLeish while Daisy snapped photos.
Once more Rosenman was impressed by FDR's gift for shedding the cares of office after hours, as if flipping a switch somewhere inside himself The President began reminiscing about his days in the governor's office in Albany where Rosenman had served as his legal counsel, recalling stories of appeals for clemency on the eve of executions. Sam marveled at FDR's memory, down to dates, places, offenses, and names of the condemned in a dozen New York capital cases. The President then segued into an Alexandre Dumas story about a barber who, during the 1870 siege of Paris, supplied delicious beef while thousands were starving. Gleefully, FDR related how a number of the barber's clients had turned up missing, and the "veal" was suspected of originating in the barber's chair.
What prompted FDR's black humor this evening went unspoken until Dorothy Rosenman raised the subject. The six condemned Nazi saboteurs had been electrocuted beginning at one minute past noon. By 1:04 P.M., the work was completed, an average of ten and a half minutes per man. One witness reported that they had gone to their deaths stunned, as if in a trance. Where, Mrs. Rosenman asked the President, would the bodies be buried? He had not yet decided, FDR answered. His only regret was that they had not been hanged. He then launched into a story about an elderly American woman who died while visiting Moscow and had accidentally been switched in a casket meant for a deceased Russian general who was shipped back to the States. When her family complained, the Russian government cabled back, "Suggest you close the casket and proceed with the funeral. Your grandmother was buried in the Kremlin with full military honors." The saboteurs were subsequently buried in a potter's field near Washington.
Was the evening of gallows humor Roosevelt's true mood or intended to mask the hard decisions he had had to make about six human lives? Mrs. Rosenman's firsthand account describes nothing but Roosevelt's humor and relaxed manner, but then, he was a consummate actor. In any case, the country was with him. Telegrams poured into the White House mail room. One read, "It's high time that we wake up here in this country and show the world we are not a bunch of mush hounds." It was signed, "Mother who has three loyal sons in the Army." The Victory Committee of German American Trade Unionists telegraphed the President, "We endorse the imposition of the death penalty on any saboteur or traitor. We know that no loyal German American need have the slightest fear providing he obeys the laws of the country." On Ellis Island, the execution of the six Germans was observed differently. Adolph G. Schickert and Erich Fittkau, Germans interned there, held a meeting of other internees. They announced the death of their countrymen, called for two minutes of silence, and then led the singing of the rousing Nazi anthem, the "Horst Wessel Lied."
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That AQ and the Taliban are not signatories is, IIRC, irrelevant. We are.
IIRC there is language about irregulars in their own country fighting foreigners so the German spy case may not be on point.
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So, are you morally/legally/ethically bound to use "friends at the end of the day" rules when subject to violent criminal assault on the street?
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http://www.heritage.org/research/projects/enemy-detention/armed-conflict-and-the-geneva-conventions
Pre-Geneva Conventions and the Law of War
This section briefly summarizes the historical antecedents to the Geneva Conventions, the protections the Conventions provide to prisoners of war (POWs), the application of these protections to the current conflict, and the questions yet to be resolved concerning application of the Conventions to changed circumstances.
The United States and its coalition partners are engaged in a war against al-Qaeda and the Taliban, their affiliates, and their supporters. Under the law of war, a country at war has the legal authority to detain individuals who have engaged in combatant actions, including unlawful belligerence, until hostilities end. This basic principle is widely accepted around the world. And since 9/11, the United States Supreme Court has upheld the right of the United States to detain enemy combatants for the duration of the conflict.
In order to understand the United States' legal position in this war, it is important to understand what the Geneva Conventions require, do not require, cover, and do not cover. This section covers the history of the Geneva Conventions, the protections that the Conventions provide to prisoners of war (POWs), how those protections apply in the current conflict, and the future of the Conventions in a changing world.
Before the Geneva Conventions
The law of war is that part of international law which regulates the conduct of armed hostilities. The law of war encompasses all international law for the conduct of hostilities that is binding on the United States and its citizens. It includes treaties and other international agreements to which the United States is a party.
The Geneva Conventions are a relatively new phenomenon in the history of warfare. Until the mid-19th Century, agreements or treaties on how to fight wars, if they existed at all, were bilateral agreements between powers at war. The agreements were specific only to the current conflict and varied from conflict to conflict.
The idea for a codification of laws regulating armed conflict originated with a citizen of Switzerland, named Henry Dunant.
In the United States, the policy of treating captured soldiers humanely began during the Revolutionary War, well before the first Geneva Convention. General George Washington, head of the Continental Army, adopted a series of policies regarding the care and treatment of prisoners of war. Those policies included a prohibition against the denial of quarter -- that is, a prohibition on refusing to take captured enemy soldiers as prisoners.
This policy led eventually to the establishment of the Lieber Code of 1863, which dictated how soldiers should be treated during a time of war. It was named for the German-American jurist Francis Lieber, and it greatly influenced the further codification of the laws of war and the adoption of similar regulations by other states. The year after its adoption, an international convention on the laws of war was presented to the Brussels Conference, which in turn stimulated the adoption of the Hague Conventions on land warfare of 1899 and 1907.
The International Committee of the Red Cross (ICRC) website presents a more detailed account of the development of the Geneva Conventions.
The Geneva Conventions
The Geneva Conventions codify laws regulating armed conflict and the humane treatment of prisoners of war and are a recent development in the history of war. Prior to the Conventions, agreements or treaties on the conduct of war tended to be bilateral agreements between warring powers. The agreements were applicable only to a specific conflict and the standards varied widely.
The four Geneva Conventions, as most recently revised and expanded in 1949, comprise a system of safeguards that attempt to regulate the ways wars are fought and to provide protections for individuals during wartime. The first Convention covers soldiers wounded on the battlefield; the second covers sailors wounded and shipwrecked at sea; the third covers prisoners of war; and the fourth covers civilians taken by an enemy military.
Only nation states may become parties to international treaties. First, the state must sign the treaty and the treaty must be ratified. Second, the state must consent to be bound by the treaty. Today, 194 countries are parties to the Conventions and enjoy protections in return for compliance with its terms. Entities that are not party to the Conventions, by definition, may be denied the privileges extended to parties to the Conventions.
Parties to the Conventions enjoy protections if they follow their rules. Entities that are not party to the Conventions, by definition, may be denied the privileges extended to parties to the Conventions.In addition to the treaty ratification requirements, Article 4 of the Third Geneva Convention protects prisoners of war if the combatant satisfies four additional pre-conditions. To enjoy the protections of the Convention as a prisoner of war (POW), a combatant must satisfy four conditions:
Be commanded by a person responsible for his subordinates;
Have a fixed distinctive sign recognizable at a distance;
Carry any weapons openly; and
Conduct operations in accordance with the laws and customs of war.
If you would like to read more about Article 4, click here to access the website of the International Committee of The Red Cross.
POWs, the Geneva Conventions, and al-Qaeda
Since 9/11, much if not most of the policy debate has centered on whether POW status applies to members of al-Qaeda and the Taliban.
Al-Qaeda is neither a country nor a lawful ruling party of a convention signatory. By definition, al-Qaeda members cannot be protected by the Geneva Conventions when fighting on behalf of al-Qaeda, whether or not they follow the law of war, such as wearing appropriate uniform. When captured, al-Qaeda fighters have no international law basis to claim prisoner of war status and are not entitled to protections under the Third Geneva Convention.Taliban fighters require a slightly different analysis. Afghanistan did sign the Geneva Conventions on August 12, 1949, and it ratified the Conventions onSeptember 26, 1956. As such, Afghanis may be covered by the Conventions. Further, despite that the United States and the international community did not officially recognize the Taliban as a legitimate government, it was at least arguably the ruling party in Afghanistan from 1996 until 2001, when it was ousted from power by a U.S.-led international coalition.
Nonetheless, the Taliban did not satisfy the remaining Article 4 pre-conditions discussed above. Referring to a presidential finding, a White House spokesperson described the reasons why the Taliban were not entitled to prisoner of war status:
The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. Instead, they have knowingly adopted and provided support to the unlawful terrorist objectives of the al Qaeda.
Notwithstanding this determination, the President and military leaders decided in 2003 that the U.S. would treat captured members of al-Qaeda and the Taliban "consistent with the principles of the Geneva Convention," affording these detainees the protections and benefits of the Conventions despite their failure to abide by them as combatants.
Future Developments
This new phenomenon of non-state actors capable of global reach and lethality has led some to question whether the Geneva Conventions are outdated and in need of modification.
When the Geneva Conventions were written, wars were typically state-on-state conflicts. In the parlance of the law of war, those conflicts were of an "international character." Wars between parties of the same country -- civil wars -- are called conflicts "not of an international character." The Geneva Conventions cover both types of conflicts.
But September 11, 2001 changed everything. The horrific attacks perpetrated by al-Qaeda were of a scale, magnitude, and level of sophistication previously achieved only by nation states.
In April 2006, then-UK Defense Secretary John Reid called for a review of the Geneva Convention on the treatment of prisoners of war. According to Reid, "We risk trying to avoid 21st-century conflict with 20th-century rules, which when they were devised did not contemplate the type of enemy which is now extant."
Recently, John Bellinger, the U.S. State Department's top lawyer, suggested that the Geneva Conventions may need to be updated. The United States is "absolutely committed" to the Geneva Conventions, said Bellinger, but the "Geneva Conventions do not give you answers about who can be held in a conflict with a non-state actor.... They do not tell you how long you can hold someone in a conflict with a non-state actor." Echoing Reid's comments, John Bellinger said the Geneva Conventions "were designed in 1949 for different sort of circumstances, and they don't provide easy answers in all cases to how to deal with international terrorists."
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War is not a legal procedure. We didn't seek indictments for Hitler and Tojo. Truman didn't seek a legal opinion before dropping nukes on Japan.
Nuremberg Trials? Milosevic? Pinochet? The fact that President Andrew Johnson pardoned thousands of CSA soldiers implies that there was the potential for indictment. And, the fact that the Office of Legal Counsel was utilized so much in the wake of 9/11 means that the Bush administration would disagree with you.
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"And, the fact that the Office of Legal Counsel was utilized so much in the wake of 9/11 means that the Bush administration would disagree with you."
Because we have become such a legalistic society, beyond the point of reason.
Nuremberg Trials?
You think those were military tribunals were more than a "victor's justice"?
Milosevic?
That goat-rope of a trial was saved by his untimely death. You want that to be looked at as an example?
Pinochet?
Another mess of a trial ending with no verdict.
"The fact that President Andrew Johnson pardoned thousands of CSA soldiers implies that there was the potential for indictment."
As they were US citizens that made war against the US, I'm sure that they potentially could have been tried for that. However, to the best of my knowledge, only one confederate officer was court-marshaled for the brutal treatment of Union prisoners in his custody after the southern defeat.
How's those war crimes trials working out for the atrocities in Darfur?
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"And, the fact that the Office of Legal Counsel was utilized so much in the wake of 9/11 means that the Bush administration would disagree with you."
Because we have become such a legalistic society, beyond the point of reason.
Just because you think that war SHOULDN'T be subject to law does not be that war IS not subject to law. And that was your original claim.
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Don't we decide what laws we do or do not apply to ourselves as a nation?
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Don't we decide what laws we do or do not apply to ourselves as a nation?
Yep. And that is why we are signatories to many treaties, why lawyers play a role in war, and why our military has a code of conduct in times of war and peace. We are, after all, a nation of law not of men.
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And as stated many times before, al qaeda is not a party to any treaty we've signed, right?
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http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A59781-2004Feb21¬Found=true
Legal Disputes Over Hunt Paralyzed Clinton's Aides
By Steve Coll
Washington Post Staff Writer
Sunday, February 22, 2004; Page A17
Between 1998 and 2000, the CIA and President Bill Clinton's national security team were caught up in paralyzing policy disputes as they secretly debated the legal permissions for covert operations against Osama bin Laden in Afghanistan.
The debates left both White House counterterrorism analysts and CIA career operators frustrated and at times confused about what kinds of operations could be carried out, according to interviews with more than a dozen officials and lawyers who were directly involved.
There was little question that under U.S. law it was permissible to kill bin Laden and his top aides, at least after the evidence showed they were responsible for the attacks on U.S. embassies in Africa in 1998. The ban on assassinations -- contained in a 1981 executive order by President Ronald Reagan -- did not apply to military targets, the Justice Department's Office of Legal Counsel had previously ruled in classified opinions. Bin Laden's Tarnak Farm and other terrorist camps in Afghanistan were legitimate military targets under this definition, White House lawyers agreed.
Also, the assassination ban did not apply to attacks carried out in preemptive self-defense -- when it seemed likely that the target was planning to strike the United States. White House and Justice Department lawyers debated whether bin Laden qualified under this standard as well, and most of the time agreed that he did.
Clinton had demonstrated his willingness to kill bin Laden, without any pretense of seeking his arrest, when he ordered the cruise missile strikes on an eastern Afghan camp in August 1998, after the CIA obtained intelligence that bin Laden might be there for a meeting of al Qaeda leaders.
Yet the secret legal authorizations Clinton signed after this failed missile strike required the CIA to make a good faith effort to capture bin Laden for trial, not kill him outright.
Beginning in the summer of 1998, Clinton signed a series of top secret memos authorizing the CIA or its agents to use lethal force, if necessary, in an attempt to capture bin Laden and several top lieutenants and return them to the United States to face trial.
From Director George J. Tenet on down, the CIA's senior managers wanted the White House lawyers to be crystal clear about what was permissible in the field. They were conditioned by history -- the CIA assassination scandals of the 1970s, the Iran-contra affair of the 1980s -- to be cautious about legal permissions emanating from the White House. Earlier in his career, Tenet had served as staff director of the Senate Intelligence Committee and director of intelligence issues at the White House, roles steeped in the Washington culture of oversight and careful legality.
Tenet and his senior CIA colleagues demanded that the White House lay out rules of engagement for capturing bin Laden in writing, and that they be signed by Clinton. Then, with such detailed authorizations in hand, every one of the CIA officers who handed a gun or a map to an Afghan agent could be assured that he or she was operating legally.
This was the role of the Memorandum of Notification, as it was called. It was typically seven or eight pages long, written in the form of a presidential decision memo. It began with a statement about how bin Laden and his aides had attacked the United States. The memo made clear the president was aware of the risks he was assuming as he sent the CIA into action.
Some of the most sensitive language concerned the specific authorization to use deadly force. Clinton's national security aides said they wanted to encourage the CIA to carry out an effective operation against bin Laden, not to burden the agency with constraints or doubts. Yet Clinton's aides did not want authorizations that could be interpreted by Afghan agents as an unrestricted license to kill. For one thing, the Justice Department signaled that it would oppose such language if it was proposed for Clinton's signature.
The compromise wording, in a succession of bin Laden-focused memos, always expressed some ambiguity about how and when deadly force could be used in an operation designed to take bin Laden into custody. Typical language, recalled one official involved, instructed the CIA to "apprehend with lethal force as authorized."
At the CIA, officers and supervisors agonized over these abstract phrases. They worried that if an operation in Afghanistan went badly, they would be accused of having acted outside the memo's scope. Over time, recriminations grew between the CIA and the White House.
It was common in Clinton's cabinet and among his National Security Council aides to see the CIA as too cautious, paralyzed by fears of legal and political risks. At Langley, this criticism rankled. The CIA's senior managers believed officials at the White House wanted to have it both ways: They liked to blame the agency for its supposed lack of aggression, yet they sent over classified legal memos full of wiggle words.
Clinton's covert policy against bin Laden pursued two goals at the same time. He ordered submarines equipped with cruise missiles to patrol secretly in waters off Pakistan in the hope that CIA spotters would one day identify bin Laden's location confidently enough to warrant a deadly missile strike.
But Clinton also authorized the CIA to carry out operations that legally required the agency's officers to plan in almost every instance to capture bin Laden alive and bring him to the United States to face trial.
This meant the CIA officers had to arrange in advance for detention facilities, extraction flights and other contingencies -- even if they expected that bin Laden would probably die in the arrest attempt. These requirements made operational planning much more cumbersome, the CIA officers contended.
In fashioning this sensitive policy in the midst of an impeachment crisis that lasted into early 1999, Clinton's national security adviser, Samuel R. "Sandy" Berger, struggled to forge a consensus within the White House national security team. Among other things, he had to keep on board a skeptical Attorney General Janet Reno and her Justice Department colleagues, who were deeply invested in law enforcement approaches to terrorism, according to senior officials involved.
As the months passed, Clinton signed new memos in which the language, while still ambiguous, made the use of lethal force by the CIA's Afghan agents more likely, according to officials involved. At first the CIA was permitted to use lethal force only in the course of a legitimate attempt to make an arrest. Later the memos allowed for a pure lethal attack if an arrest was not possible. Still, the CIA was required to plan all its agent missions with an arrest in mind.
Some CIA managers chafed at the White House instructions. The CIA received "no written word nor verbal order to conduct a lethal action" against bin Laden before Sept. 11, one official involved recalled. "The objective was to render this guy to law enforcement." In these operations, the CIA had to recruit agents "to grab [bin Laden] and bring him to a secure place where we can turn him over to the FBI. . . . If they had said 'lethal action' it would have been a whole different kettle of fish, and much easier."
Berger later recalled his frustration about this hidden debate. Referring to the military option in the two-track policy, he said at a 2002 congressional hearing: "It was no question, the cruise missiles were not trying to capture him. They were not law enforcement techniques."
The overriding trouble was, whether they arrested bin Laden or killed him, they first had to find him.
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And as stated many times before, al qaeda is not a party to any treaty we've signed, right?
Nope, but there are still legal limits to the ways of war. And the fact that war (its declaration, its funding, its commander in chief) has role in the Constitution (the highest LAW of the land) should tell you that law does, in fact, play a role in war... even if you don't like it.
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Nope, but there are still legal limits to the ways of war.
What laws of war did the N. Koreans and Chinese observe in the Korean war? What consequences did they suffer for their treatment of US POWs?
Explain the legal logic where we can't use a hollowpoint bullet on an enemy soldier, but we can launch ICBMs that burn entire cities off the map.
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Nope, but there are still legal limits to the ways of war.
What laws of war did the N. Koreans and Chinese observe in the Korean war? What consequences did they suffer for their treatment of US POWs?
Explain the legal logic where we can't use a hollowpoint bullet on an enemy soldier, but we can launch ICBMs that burn entire cities off the map.
GM, I am not a lawyer. The fact that our enemies do not follow is no reason for us not to. There is a reason why they are the enemy. And your relunctance to follow the Constitution except when you find it convenient is pretty damning to your stance.
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"The fact that our enemies do not follow is no reason for us not to."
Why? This is chanted over and over again like it's a article of faith. There are pragmatic reasons to treat enemy prisons of war well when we are fighting a nation-state's military. There are also pragmatic reasons to not provide those same protections to those who are not honorable soldiers, such as al qaeda.
"And your relunctance to follow the Constitution except when you find it convenient is pretty damning to your stance."
Al qaeda enjoys constitutional protections? Then Hellfire missile strikes constitute a violation of 42 USC 1983 per Graham v. Connor.
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"The fact that our enemies do not follow is no reason for us not to."
Why? This is chanted over and over again like it's a article of faith. There are pragmatic reasons to treat enemy prisons of war well when we are fighting a nation-state's military. There are also pragmatic reasons to not provide those same protections to those who are not honorable soldiers, such as al qaeda.
"And your relunctance to follow the Constitution except when you find it convenient is pretty damning to your stance."
Al qaeda enjoys constitutional protections? Then Hellfire missile strikes constitute a violation of 42 USC 1983 per Graham v. Connor.
You refuse to argue the issue, GM. The reason is because, as I've said, if we fight for freedom, liberty, the expansion of democracy and the like, then we have to be the world's exemplar. If we fail to illustrate the benefits of freedom, etc. then there is no reason for us to fight. And, if we are fighting without staying true to the tenets we claim to be fighting for, then we, as a free nation, are no longer fighting... we are just another country in the world. Also, if we take issue with others mistreating our soldiers, and we do and SHOULD, then we should treat others well. That pesky leading by example thing.
As I've said, but you refuse to read, acknowledge, or understand, is that the Constitution binds and describes when it comes to war. And, since the highest law of the land helps to limit the methods of fighting a war, then your argument that law and war don't mix is full of holes that an ICBM could fly through.
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Would you fight differently in a dojo with a fellow martial artist than you would in a life and death fight on the street? Would the need to "set an example" mandate that you fight by "friends at the end of the day" rules despite that your assailant/s is/are trying to stab you to death in a home invasion?
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I like that you continue to refuse to stick to the subject at hand. There are still laws that you are bound by in your examples, GM. If there is a home invasion, there are still acceptable levels of force. I couldn't subdue someone who entered my home with ill intent, put them in my basement and beat them daily for years. I couldn't address the issue, and then go to their house and invade it. I couldn't be so mad at them that I broke into someone's house in the their neighborhood.
Why do you refuse to acknowledge that law binds actions in war? Constitution, statute, Supreme Court opinions all do, have and were intended to impact the ways that wars are fought. Stick to the subject, GM.
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"As I've said, but you refuse to read, acknowledge, or understand, is that the Constitution binds and describes when it comes to war."
ARTICLE 1, SECTION 8
The Congress shall have Power:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress....
ARTICLE 1, SECTION 9
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
ARTICLE II, SECTION 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States....
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.
I don't see anything there that says that al qaeda gets constitutional protections.
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The Constitution is not the only document or law that relates to war, but it does... and I am so glad you found the relevent Articles and sections. And, since you did that, it is clear that you now agree that war is impacted by law, which is what you alleged. From GM: "War is not a legal procedure." But, war is EXACTLY a legal procedure. Congress legally raises an army. The president is legally the commander in chief. ONLY Congress can legally suspend habeus corpus, and ONLY then in specific circumstances. There is a legal process by which treaties are made. That is the WHOLE point that I have been trying to get you to acknowledge.
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So, everyone in the world enjoys constitutional protections? Hawaiian police officers should have attempted to arrest Admiral Yamamoto for various felonies committed at Pearl Harbor?
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Does everyone in the world have habeus protections? Could German POWs have petitioned the courts during WWII to be released back to Germany? They were not criminally charged (the vast majority, at least).
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So, everyone in the world enjoys constitutional protections? Hawaiian police officers should have attempted to arrest Admiral Yamamoto for various felonies committed at Pearl Harbor?
Everyone in the federal government is bound by the Constitution. I think you are aware that there is a different beween the federal and state governements. Can you illustrate to me Hawaiian police have federal jurisdiction, or is this yet another straw man question in a long line of them?
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Does everyone in the world have habeus protections? Could German POWs have petitioned the courts during WWII to be released back to Germany? They were not criminally charged (the vast majority, at least).
You showed me the relevent places in the Constitution, GM. Are you trying to backtrack? Your statement was that war is not a legal procedure. I've illustrated otherwise. Deal with it.
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Are you moving the goal posts because you cannot defend your position or do you not understand my point?
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The declaration of war may be a legal procedure, but the fighting of the war is not. Or is a USMC sniper shooting enemy troops that have not fired at him murdering innocent victims?
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http://www.mikelief.com/archives/001342.html
August 31, 2007
Our GIs fear lawyers more than death
The rules of engagement under which our troops fight represent the unrealistic -- some might say insane -- belief that wars can be fought in a surgical, antiseptic fashion. This expectation is risible, propounded only by politicans who have never served in harm's way and academics who have never studied military history.
Blogger Herschel Smith puts the current dysfuntional rules in historical prespective, before turning to a real-world example of how bad things have become for our fighting men.
A recent Washington Times commentary gives us food for thought concerning application of rules of engagement in combat action in Afghanistan.
Now that Marcus Luttrell’s book “Lone Survivor: The Eyewitness Account of Operation Redwing and the Lost Heroes of Seal Team 10″ is a national bestseller, maybe Americans are ready to start discussing the core issue his story brings to light: the inverted morality, even insanity, of the American military’s rules of engagement (ROE).
On a stark mountaintop in Afghanistan in 2005, Leading Petty Officer Luttrell and three Navy SEAL teammates found themselves having just such a discussion. Dropped behind enemy lines to kill or capture a Taliban kingpin who commanded between 150-200 fighters, the SEAL team was unexpectedly discovered in the early stages of a mission whose success, of course, depended on secrecy. Three unarmed Afghan goatherds, one a teenager, had stumbled across the Americans’ position.
This presented the soldiers with an urgent dilemma: What should they do? If they let the Afghans go, they would probably alert the Taliban to the their whereabouts. This would mean a battle in which the Americans were outnumbered by at least 35 to 1. “Little Big Horn in turbans,” as Marcus Luttrell would describe it. If the Americans didn’t let the goatherds go — if they killed them, there being no way to hold them — the Americans would avoid detection and, most likely, leave the area safely. On a treeless mountainscape far from home, four of our bravest patriots came to the ghastly conclusion that the only way to save themselves was forbidden by the rules of engagement. Such an action would set off a media firestorm, and lead to murder charges for all.
It is agonizing to read their tense debate as Mr. Luttrell recounts it, the “lone survivor” of the disastrous mission. Each of the SEALs was aware of “the strictly correct military decision” — namely, that it would be suicide to let the goatherds live. But they were also aware that their own country, for which they were fighting, would ultimately turn on them if they made that decision. It was as if committing suicide had become the only politically correct option. For fighting men ordered behind enemy lines, such rules are not only insane. They’re immoral.
The SEALs sent the goatherds on their way. One hour later, a sizeable Taliban force attacked, beginning a horrendous battle that resulted not only in the deaths of Mr. Luttrell’s three SEAL teammates, but also the deaths of 16 would-be rescuers — eight additional SEALS and eight Army special operations soldiers whose helicopter was shot down by a Taliban rocket-propelled grenade.
“Look at me right now in my story,” Mr. Luttrell writes. “Helpless, tortured, shot, blown up, my best buddies all dead, and all because we were afraid of the liberals back home, afraid to do what was necessary to save our own lives. Afraid of American civilian lawyers. I have only one piece of advice for what it’s worth: If you don’t want to get into a war where things go wrong, where the wrong people sometimes get killed, where innocent people sometimes have to die, then stay the hell out of it in the first place.”
It might have been that firing on the goatherds would have divulged their position to the enemy. But assuming the accuracy of the scenario given to us above, i.e., it is possible for Luttrell and his team to have killed the goatherds and avoided the combat caused by divulging their position, then a different choice should have been made in this instance.
Another complicating factor is that the Luttrells’s team could only surmise that the goatherds would give away their position. They could not know with absolute certainty. In the end, they were right in their suspicion, but either way, the moral of the story is that in such situations certainty is not possible and thus should not be required.
[N]o one wants to see teams of U.S. forces hamstrung by rules that are made out to be rigid and inflexible when taught to them, but which cannot possibly be applied that way in a broken and complex world. Latitude and professional judgment should be the order of the day.
Unfortunately, politicians and lawyers have forced the troops into the unbelievable position of choosing death and defeat over survival and victory. Because death in battle is preferable to dishonor in a court of law.
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Are you moving the goal posts because you cannot defend your position or do you not understand my point?
That's what I've been asking you GM. You can't simply admit that what you said was wrong.
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Perhaps I misunderstand, because congress and the president have constitutional authority related to war, then the battlefield is a legal process? Do enemy combatants have due process rights to not have an air strike called upon them?
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The declaration of war may be a legal procedure, but the fighting of the war is not. Or is a USMC sniper shooting enemy troops that have not fired at him murdering innocent victims?
If fighting the war is not a legal procedure then explain Rules of Engagement, the Uniform Military Code of Justice, the legality (or not) of the draft, the constitutional questions that arose from fighting the Barbary pirates (or the Mexican American War; or the Civil War; or the..........................................................). Legal questions have abounded during US wars from the time of the founding, based on questions of constitutionality and legality.
And the USMC sniper is bound by law. And you know that.
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Do those enemy combatants have due process rights?
"And the USMC sniper is bound by law. And you know that."
Earlier on, I posted the orders the Union troops were given from Pres. Lincoln regarding their conduct in the civil war, remember? Where illegal combatants could be treated as pirates if captured by Union forces. That means executed without due process/POW status.
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INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD
Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General's Office, 1863, Washington 1898: Government Printing Office.
http://avalon.law.yale.edu/19th_century/lieber.asp#sec4
SECTION IV
Partisans - Armed enemies not belonging to the hostile army - Scouts - Armed prowlers - War-rebels
Art. 81.
Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.
Art. 82.
Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.
Art. 83.
Scouts, or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.
Art. 84.
Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.
Art. 85.
War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they if discovered and secured before their conspiracy has matured to an actual rising or armed violence.
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I am enjoying being a fly on the wall for this one :-)
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GM, you continue to cloud the issue with points beyond your original claim. Focus.
You claimed that war was not a legal procedure. It is. I have established that, and you've even agreed that the declaration of war is as such. Now, with your help (and thank you for pointing this source out), since President Lincoln, the commander in chief, established the legal boundaries through a process: "Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General's Office, 1863, Washington 1898: Government Printing Office", we have established that there are indeed legal bounds and definitions by which soldiers, even waaaaaay back in the Civil War, are to follow.
As to your question (although I can't tell what question you are asking, because you keep changing it), you know that our soldiers cannot act out of spite, or without cause, or outside of legal defined actions: http://www.dailymail.co.uk/news/worldnews/article-1165848/U-S-soldier-convicted-murder-following-execution-style-killing-Iraqi-detainees.html. Or does this not satisify you? Would you have our soldiers raping and looting? We are not barbarian raiders, although since you seem to think that there are no limits (or is it that there should be no limits?), perhaps you would like to return to the "good old days"?
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No mention of bombs, guns or bayonets.
http://uk.ask.com/wiki/Legal_procedure
Legal procedure
Although different legal processes aim to resolve many kinds of legal disputes, the legal procedures share some common features. All legal procedure, for example, is concerned with due process. Absent very special conditions, a court can not impose a penalty - civil or criminal - against an individual who has not received notice of a lawsuit being brought against them, or who has not received a fair opportunity to present evidence for themselves.
The standardization for the means by which cases are brought, parties are informed, evidence is presented, and facts are determined is intended to maximize the fairness of any proceeding. Nevertheless, strict procedural rules have certain drawbacks. For example, they impose specific time limitations upon the parties that may either hasten or (more frequently) slow down the pace of proceedings. Furthermore, a party who is unfamiliar with procedural rules may run afoul of guidelines that have nothing to do with the merits of the case, and yet the failure to follow these guidelines may severely damage the party's chances. Procedural systems are constantly torn between arguments that judges should have greater discretion in order to avoid the rigidity of the rules, and arguments that judges should have less discretion in order to avoid an outcome based more on the personal preferences of the judge than on the law or the facts.
Legal procedure, in a larger sense, is also designed to effect the best distribution of judicial resources. For example, in most courts of general jurisdiction in the United States, criminal cases are given priority over civil cases, because criminal defendants stand to lose their freedom, and should therefore be accorded the first opportunity to have their case heard.
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http://www.nolo.com/dictionary/procedure-term.html
procedure
1) A method or act that furthers a legal process. Procedures include filing complaints, serving documents, setting hearings, and conducting trials. 2) The established rule or series of steps that governs a civil lawsuit or criminal prosecution. (See also: civil procedure, criminal procedure)
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This is an interesting defintion, because try as I might, I can't find this defintion anywhere other than wikipedia. You'll forgive me, since "legal procedure" is in neither version of Black's Law Dictionary (which is considered definitive) that I have access to (6th ed. on my desk as I write and 8th edition which is online), I think that perhaps this phrase, nor definition, is not, well, legal.
No mention of bombs, guns or bayonets.
http://uk.ask.com/wiki/Legal_procedure
Legal procedure
Although different legal processes aim to resolve many kinds of legal disputes, the legal procedures share some common features. All legal procedure, for example, is concerned with due process. Absent very special conditions, a court can not impose a penalty - civil or criminal - against an individual who has not received notice of a lawsuit being brought against them, or who has not received a fair opportunity to present evidence for themselves.
The standardization for the means by which cases are brought, parties are informed, evidence is presented, and facts are determined is intended to maximize the fairness of any proceeding. Nevertheless, strict procedural rules have certain drawbacks. For example, they impose specific time limitations upon the parties that may either hasten or (more frequently) slow down the pace of proceedings. Furthermore, a party who is unfamiliar with procedural rules may run afoul of guidelines that have nothing to do with the merits of the case, and yet the failure to follow these guidelines may severely damage the party's chances. Procedural systems are constantly torn between arguments that judges should have greater discretion in order to avoid the rigidity of the rules, and arguments that judges should have less discretion in order to avoid an outcome based more on the personal preferences of the judge than on the law or the facts.
Legal procedure, in a larger sense, is also designed to effect the best distribution of judicial resources. For example, in most courts of general jurisdiction in the United States, criminal cases are given priority over civil cases, because criminal defendants stand to lose their freedom, and should therefore be accorded the first opportunity to have their case heard.
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In using my Black's Law Dictionary (6th. ed.), which again is considered definitive by most legal professionals), couldn't but notice that perhaps the website definition of procedure was good, but perhaps incomplete. I'll leave out the portions of the full definition which are similar to that which you posted, but I will include the following: "The judicial process for enforcing rights and duties recognized by substantive law and for justly administering redress for infraction of them."
This addition is important, because duty, as defined by Black's, reads, in part, as follows: "A human action which is exactly conformable to the laws which require us to obey them. Legal or moral obligation."
So, what this means is that the judicial process, whether or not it is a "legal process", can be used for enforcing infractions against those who fail to to do their duty... which includes legally and morally defined obligations.
Which means that it matters not if al Qaeda has signed a treaty, it matters that the United States has. It also means that the Supreme Court, and other courts, do in fact have a place in war.
http://www.nolo.com/dictionary/procedure-term.html
procedure
1) A method or act that furthers a legal process. Procedures include filing complaints, serving documents, setting hearings, and conducting trials. 2) The established rule or series of steps that governs a civil lawsuit or criminal prosecution. (See also: civil procedure, criminal procedure)
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As there are hospitals, doctors, nurses, medics that are an element of war, does war count as a "medical procedure"?
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"Which means that it matters not if al Qaeda has signed a treaty, it matters that the United States has."
If the US signs a treaty with Canada, does it also mean that the US has the same treaty obligations towards Zimbabwe, although Zimbabwe is not a signatory party to the treaty? Does the US also hold the same treaty obligations towards NGOs, such as the Red Cross or Doctors without Borders, although there is no legal agreement with those non-state actors?
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As there are hospitals, doctors, nurses, medics that are an element of war, does war count as a "medical procedure"?
When there are hospitals, doctors and nurses that are coequal branches of government, like the federal judiciary is, let me know GM. STRAW MAN!!!!!!!!!!!!!!!!!!!
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http://www.startribune.com/nation/121089124.html
Officials: CIA interrogators at secret prisons developed first strands that led to bin Laden
Article by: ADAM GOLDMAN , Associated Press
Updated: May 2, 2011 - 11:00 AM
WASHINGTON - Officials say CIA interrogators in secret overseas prisons developed the first strands of information that ultimately led to the killing of Osama bin Laden.
Current and former U.S. officials say that Khalid Sheikh Mohammed, the mastermind of the Sept. 11, 2001 terrorist attacks, provided the nom de guerre of one of bin Laden's most trusted aides. The CIA got similar information from Mohammed's successor, Abu Faraj al-Libi. Both were subjected to harsh interrogation tactics inside CIA prisons in Poland and Romania.
The news is sure to reignite debate over whether the now-closed interrogation and detention program was successful. Former president George W. Bush authorized the CIA to use the harshest interrogation tactics in U.S. history. President Barack Obama closed the prison system.
He did? I think not.
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http://www.reuters.com/article/2011/05/02/us-binladen-kill-idUSTRE7413H220110502
U.S. team's mission was to kill bin Laden, not capture
WASHINGTON | Mon May 2, 2011 8:46am EDT
WASHINGTON (Reuters) - The U.S. special forces team that hunted down Osama bin Laden was under orders to kill the al Qaeda mastermind, not capture him, a U.S. national security official told Reuters.
"This was a kill operation," the official said, making clear there was no desire to try to capture bin Laden alive in Pakistan.
(Reporting by Mark Hosenball, writing by Matt Spetalnick)
Ok lawfare advocates, upset at the lack of due process? It appears the US violated all kinds of international law here.
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Fastest growing religion among liberals? Born-again Waterboarders!
http://hotair.com/archives/2011/05/02/ap-first-intel-on-bin-ladens-whereabout-gathered-in-cia-secret-prison/
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"The fact that our enemies do not follow is no reason for us not to."
Why? This is chanted over and over again like it's a article of faith. There are pragmatic reasons to treat enemy prisons of war well when we are fighting a nation-state's military. There are also pragmatic reasons to not provide those same protections to those who are not honorable soldiers, such as al qaeda.
"And your relunctance to follow the Constitution except when you find it convenient is pretty damning to your stance."
Al qaeda enjoys constitutional protections? Then Hellfire missile strikes constitute a violation of 42 USC 1983 per Graham v. Connor.
You refuse to argue the issue, GM. The reason is because, as I've said, if we fight for freedom, liberty, the expansion of democracy and the like, then we have to be the world's exemplar. If we fail to illustrate the benefits of freedom, etc. then there is no reason for us to fight. And, if we are fighting without staying true to the tenets we claim to be fighting for, then we, as a free nation, are no longer fighting... we are just another country in the world. Also, if we take issue with others mistreating our soldiers, and we do and SHOULD, then we should treat others well. That pesky leading by example thing.
As I've said, but you refuse to read, acknowledge, or understand, is that the Constitution binds and describes when it comes to war. And, since the highest law of the land helps to limit the methods of fighting a war, then your argument that law and war don't mix is full of holes that an ICBM could fly through.
It's looking like OBL was flat out executed by the SEALs, based on intel gained by waterboarding in secret prisons. Me, I'm quite pleased by this, of course. I'm wondering where the lawfare advocates are?
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http://www.spiegel.de/international/world/0,1518,760358,00.html
Justice, American Style
Was Bin Laden's Killing Legal?
An Analysis by Thomas Darnstädt
DPA
A victory celebration on Pennsylvania Avenue in Washington on Sunday night.
Is this what justice looks like? Al-Qaida boss Osama bin Laden was killed on Sunday in a secret military operation in Pakistan. Americans are celebrating, but there are serious doubts about whether the targeted killing was legal under international law and the laws of war.
Now, I could care less as to the alleged legality/illegality of killing OBL. Where are you lawfare advocates on this?
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Besides shooting an unarmed man, we were already guilty of breaking and entering.
Does this tie the current administration into a conspiracy after the fact of the original hate crime of waterboarding?
Were proportional numbers of Chistians, Jews and atheists among the 3 people waterboarded, or was this a deliberate targeting of Muslims?
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I don't know the laws of war, but is the concept of a disproportionate response, used to deter continued and future attacks, is that illegal as well?
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When you codify the limits of war, you are also publishing a handbook for the enemy to know your limits.
I don't know of a concept in contract law that can bind one party to the contract and not the other.
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Sure would be nice if the hand wringers contemplated for a moment the extrajudicial incineration, mangling, crushing et al of 9/11 victims. Don't mess with the eagle if you can't take the talon.
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http://pajamasmedia.com/blog/the-european-media-reacts-to-death-of-osama-bin-laden/?singlepage=true
The European Media Reacts to Death of Osama Bin Laden
European journalists have focused on whether the killing was permissible under international law; some are now calling for an international commission to investigate the American action.
May 5, 2011 - 12:08 am - by Soeren Kern
Leading newspapers and magazines in Europe have provided saturation coverage of the death of Osama bin Laden. Although initial media reaction in Europe was overwhelmingly supportive of the American commando operation, media outlets in many countries quickly regained their composure and anti-Americanism has now returned as their default position.
European media, almost without exception, have focused particular attention on the news that bin Laden was not armed when he was killed by American operatives. Many Europeans have criticized what they describe as America’s “wild-west” concept of justice. Dozens of European newspapers have published lengthy philosophical essays by sundry intellectuals that examine the morality of bin Laden’s killing. Many argue that bin Laden should have been tried in a court of law.
In a reflection of the acute sense of moral superiority that is so common in contemporary Europe, secular analysts who are normally highly disdainful of Judeo-Christian moral codes have gone so far as to accuse the United States of violating the Fifth Commandment, without a hint of irony.
In Germany, the media reaction has been especially noteworthy for its near unanimous criticism of the American raid. Many German analysts say the American action was illegal under international law and some Germans have called for an international commission (similar to the Goldstone Commission in Israel) to investigate the U.S. foray into Pakistan. Unanswered remains the question of whether European activists will accuse U.S. President Barack Obama of war crimes and seek a warrant for his arrest as they did for George W. Bush, who recently was forced to cancel a trip to Switzerland.
In Britain, the left-wing Guardian newspaper ran a story titled “Osama bin Laden: U.S. Changes Account of al-Qaida Leader’s Death” which says:
The U.S. has backed away from its initial account of the killing of Osama bin Laden, which claimed that the al-Qaeda leader was carrying a weapon and fired at U.S. troops before he was shot dead.
* * *
[Q]uestions [are] being raised as to why Bin Laden was shot dead, and whether he was executed, rather than taken into custody.
Another Guardian story is titled “For 10 years, Osama bin Laden filled a gap left by the Soviet Union. Who will be the baddie now?” It says:
Neoconservatives, “terror journalists” and Osama bin Laden himself all had their own reasons to create a simple story of looming apocalypse.
* * *
But he was also in a strange way a godsend to the west. He simplified the world. When communism collapsed in 1989, the big story that had been hardwired into citizens of western countries – that of the global battle against a distant dark and evil force – came to an abrupt end. Understanding the world became much more complicated until, amid the confusion of a global economic crisis in 1998 and the hysterical spectacle of the Monica Lewinsky affair, bin Laden emerged as the mastermind behind the bombings of embassies in east Africa.
* * *
With bin Laden’s death maybe the spell is broken. It does feel that we are at the end of a way of looking at the world that makes no real sense any longer. But the big question is where will the next story come from? And who will be the next baddie? The truth is that the stories are always constructed by those who have the power. Maybe the next big story won’t come from America. Or possibly the idea that America’s power is declining is actually the new simplistic fantasy of our age.
Finally, the Guardian, echoing many other European newspapers, hopes the demise of bin Laden will accelerate the withdrawal of American troops from Afghanistan.
A story in the Guardian titled “Osama bin Laden Killing Sparks Calls for Early Afghanistan Withdrawal” says:
The killing of Osama bin Laden has opened up divisions inside Barack Obama’s administration over whether the withdrawal of U.S. troops in Afghanistan, which is scheduled to begin this summer, should be bigger and faster than planned.
Politicians, soldiers and analysts from the U.S. to Afghanistan have debated whether the removal of the al-Qaida leader will shorten the war and open the way for reconciliation with the Taliban.
A fawning love letter to Obama by the left-wing Independent titled “Obama Has Shown the World Why it Fell in Love with Him” says:
He is not the Messiah, but he deserves to sleep easy in his bed, and leave the 3am angst to malevolent midgets like Donald Trump who will never trouble him again.
* * *
To those watching at home and around the world, he said, “a new dawn of American leadership is at hand.” After two years of hawkish foreign policy barely distinguishable from his predecessor’s, he has made good on that promise – not just with the killing of bin Laden, but by its manner. All the expert advice, we read, was to do what the Bushes, Clinton, Reagan and all other leaders in memory, recent or otherwise, would have done, which is flatten the compound and its environs with missiles.
* * *
People have criticised him for being ‘professorial’ as well as arrogant. They will do so no longer. He pondered for months, studied the research, weighed up the evidence, and reached the right conclusion. This is one cool, tough prof, and the lesson he has taught by example won’t quickly be unlearnt. In asymmetric warfare against a stateless enemy, invading sovereign states and slaughtering civilians is not the way to go.
If that sounds childishly simple, it defeated the simpleton Bush and his brutish cabal as they confused two-bit fake patriotism with American self-interest, and indiscriminate crusader cruelty with military wisdom. Let no one hear attempts to share Obama’s credit with Dubya without revulsion. He failed pitifully in this, as in almost every thing else, and even if water-boarding a key al-Qaeda operative helped to identify the courier, it cannot begin to justify holding boys of 14 and senile 89-year-olds at Guantanamo Bay. Guantanamo remains open. Obama hasn’t honoured on every promise, nor will. He is not the Messiah, although if the Kool Aid truck has redelivered at last, make mine an octuple.
Also at the Independent, Robert Fisk, the veteran Middle East correspondent, like many of his left-wing colleagues, has tried to promote conspiracy theories.
One essay by Fisk is titled “If this is a U.S. Victory, Does that mean its Forces Should go Home Now?” It says:
And there’s Bin Laden’s secret burial in the Arabian Sea. Was this planned before the attack on Bin Laden, with the clear plan to kill rather than capture him? And if it was carried out “according to Islamic rights” – the dead man’s body washed and placed in a white shroud – it must have taken a long time for the officer on the USS Carl Vinson to devise a 50-minute religious ceremony and arrange for an Arabic-speaking sailor to translate it.
Another Fisk conspiracy theory is titled “Was He Betrayed? Of course. Pakistan Knew Bin Laden’s Hiding Place all Along.” It says:
A single shot to the head, we were told. But the body’s secret flight to Afghanistan, an equally secret burial at sea? The weird and creepy disposal of the body – no shrines, please – was almost as creepy as the man and his vicious organisation.
* * *
The Americans were drunk with joy.
* * *
By midday yesterday, I had three phone calls from Arabs, all certain that it was Bin Laden’s double who was killed by the Americans – just as I know many Iraqis who still believe that Saddam’s sons were not killed in 2003, nor Saddam really hanged. In due course, al-Qaeda will tell us. Of course, if we are all wrong and it was a double, we’re going to be treated to yet another videotape from the real Bin Laden – and President Barack Obama will lose the next election.
The center-right Daily Telegraph, in an essay titled “How Many More Details of the bin Laden Raid will need to be ‘Clarified’?” says:
Oh dear, and it was all going so well. The White House has just “clarified” crucial aspects of the special forces operation that ended with the execution of Osama bin Laden. Specifically, it has pointed out that the leader of al-Qaeda was not firing an AK-47 when he was shot dead and that his wife was neither killed nor used as a human shield. Those three vivid details of the raid were the ones that dominated newspaper front pages across the world – and not one of them turns out to be true.
The glaring difference between the two versions was being attributed to “confusion” by the White House. What officials called the “fact pattern” – and we would call the truth – was only emerging as more of the participants were debriefed. This is all rather troubling. The fog of war does lead to confusion and mistakes but wouldn’t it have been more sensible if the White House had debriefed all the participants before pumping out headline-grabbing but inaccurate accounts of the action?
Also in the Telegraph, an essay titled “The Death of Osama bin Laden is American Rough Justice, Wild West-Style” says:
America is a nation of laws, but beneath all that fine sentiment about procedure there is a stronger hunger for natural justice. One is put in mind of the great, 19th-century historian Hubert Howe Bancroft, whose work on the Wild West discovered and defended an American tradition of personal, violent justice. Lynch law and vendettas, he wrote, were the informal exercise of a people’s will to obtain a verdict that the state was currently powerless to achieve. Europeans had been emasculated by their reliance upon formal law and bureaucracy. It was in the American wilderness that the individual was once again freed to pursue their own kind of rough justice. The assassination of Osama is as American as the shootout that killed Billy the Kid. It is a personal Wild West drama writ-large on the global stage.
Then there’s the continental European media.
In France, in an analysis titled “Democracy Strikes Back: A French View On America After Bin Laden,” Dominique Moïsi, a respected French analyst of transatlantic relations, says:
The death of Osama bin Laden allows the United States to redefine crucial relationships: with itself, and with the rest of the world.
* * *
This wasn’t a case of America showing off its superior technology; it was neither drones nor missiles that ended the hunt for bin Laden. It was the audacity, courage and determination of its soldiers that made the difference in “avenging” the innocent victims of 9/11.
* * *
America might have entered a relative phase of decline, and its staggering debt places the nation in an undoubtedly uncomfortable situation of dependence on China. But it nonetheless still remains the only great “multi-dimensional” power. Neither China, nor India, nor Russia, and even less so the European Union, have the capacity or the will to undertake an operation like the one that led to the death of Osama bin Laden.
* * *
“Hard power,” the power to compel, is indispensable, and “soft power,” the power to convince, is not sufficient by itself. This is an essential lesson for Europe, but does it come too late?
Also in France, the weekly newsmagazine Le Point, in an article titled “Bin Laden’s Fatal Error,” says:
Americans retrieved old notions of vengeful and speedy justice that they had never completely lost since the conquest of the West. “We got him,” proclaimed banners, in response to Barack Obama’s own words announcing that U.S. commandos had killed Osama bin Laden. “Justice has been done,” the president said simply.
* * *
Just as the Japanese had underestimated the terrifying consequences that their treacherous attack on Pearl Harbor in December 1941 would have for them four years later, bin Laden may have underestimated the anger and the desire for revenge that he would arouse by striking the World Trade Center on Sept. 11, 2001.
But what of the German media?
Germany’s center-right Die Welt, in an article titled “Is Killing Bin Laden Worthy Of A Great Democracy?” says:
The images coming from the U.S. were reminiscent of the scenes following Saddam Hussein’s capture in December 2003, when he was hiding in a hole in a farm near the town of Tikrit. What followed was a degrading treatment of the Iraqi president on the world’s stage, allegedly to determine his identity. In fact, the show was meant to demonstrate the power of the United States.
* * *
The message was clear: we can catch anyone, and no one is safe. This time, it was Osama bin Laden who had his turn – the al-Qaeda leader was the No. 1 public enemy in the United States. A $50 million bounty had been issued for his capture: “dead or alive.”
* * *
President Obama personally gave the order for the mission, and Americans are now celebrating as if killing Osama bin Laden had solved all of their problems in one stroke – high unemployment, runaway national debt, failed health care reform, the country’s tarnished prestige in the world.
* * *
The execution of Osama bin Laden – or it is better to speak of murder? – allows Americans to forget their troubles for a moment. It is like a balm on the wounds of the nation. In the rush of emotion, no one is asking the questions that need to be asked. For example – was it really Osama bin Laden who was killed? Is it possible that it was one of his doubles?
* * *
In the United States, the accused have the right to be presumed innocent until proven guilty. Guilt or innocence can only be decided in a proper court of law. Osama bin Laden was given the “short shrift.” He did not have the opportunity to defend himself from the accusations made against him, he had no fair trial, no lawyer. He was probably not even asked to surrender. Such a procedure is unworthy of a constitutional state. Even Adolf Eichmann, the architect of the Final Solution of the Jewish question, was given due process before he was sentenced to death.
* * *
If we ask ourselves, “cui bono?” (“who benefits?”), the answer is clear: the United States. The superpower was caught cold by the recent uprisings in the Arab world, it has failed to solve the Palestinian question, it has not even come to terms with inflation at home. Something needed to happen.
* * *
The timing was not perfect, but apparently no one wanted to wait until the tenth anniversary of 9/11.
* * *
At the very least, we should now demand the creation of an independent commission to investigate whether or not, and under what circumstances, Osama bin Laden was killed. Only then will we know for certain and prevent the spread of conspiracy theories like the ones that have developed about events such as the moon landing and 9/11.
* * *
The leader of such a commission would need to be an experienced and impartial jurist. For example, Richard Goldstone, the former Chief Justice of South Africa, who investigated Israel’s latest operation in Gaza.
The left-wing magazine Spiegel, in an article titled “He is Dead: Hurray?” says:
Much has been said about the Christian-influenced West’s civilizational superiority to the Islamic countries. But what is happening in the United States gives a different impression. When Americans celebrate the death of bin Laden with dancing and shouting over loudspeakers, it is horrifying to us [Germans/Europeans]. The bizarre cheers show us that American society is alien to us. …
* * *
“In God We Trust” is on every U.S. dollar bill, but this is not the forgiving God of the New Testament God – but rather the vengeful God of the Old Testament. In this country [Germany], rehabilitation is the goal of society, in the U.S. it is retaliation, including the death penalty.
* * *
That the death penalty may be imposed on bin Laden, even without trial, if only the crime and anger are big enough, and that their enforcement is enthusiastically applauded, proves how deeply the “eye for an eye” ideology is rooted in American society. Resentment may be powerful – morally superior it is not.
Also in Germany, the Legal Tribune, which is affiliated with Spiegel, published an article titled “On the Problem of the State’s ‘License to Kill’” which says:
Was the United States entitled to liquidate their No. 1 public enemy so easily and without a trial? When a state kills specific individuals without first trying them in a court of law, this is an illegal action. Beyond the question of whether the victim may have deserved his fate, human rights laws prohibit the killing of persons without following legal processes, such as those established by Article 6, Paragraph 1 of the International Covenant on Civil and Political Rights dated 16 December 1966. For this reason, the U.S. military drone attacks in Pakistan, as well as Mossad hit squads to kill a Hamas arms dealer in Dubai in January 2010, are a violation of human rights. In addition, they are a major breach of international legal principle of non-interference; see for example Article 2 of the UN Charter.
The left-wing magazine Stern, in an article titled “Were They Allowed to do This?” says: “Osama bin Laden’s death is a political success for the USA. But were U.S. commandos allowed to just kill the leader of al-Qaeda? Or was this a case of ‘might makes right’?” Stern then lays out three legal scenarios: 1) Yes, it was legal because it was a police action; 2) Yes, it was legal because he was involved in a war; and 3) No, it was an illegal execution. The magazine prefers option 3 and says: “The U.S. government has so far only said the operation adhered to legal standards. It is still unclear what standards Obama’s lawyers mean.”
The left-wing Berliner Morgenpost, in an article titled “America Celebrates Bin Laden’s Death – and Shames Itself,” says:
Many Americans are celebrating the death of al-Qaeda leader Osama bin Laden with euphoria and pure hate. Some Americans have expressed shame over the empty triumphalism.
* * *
Time, the old, once proud, now ailing news magazine, has announced that bin Laden will be on the magazine’s cover for a fourth time, this time with a red cross over a rogue portrait. Adolf Hitler, in its issue of May 7, 1945, was the first to have the privilege. Then, after a long break came Saddam Hussein (2003) and Abu Musab al-Zarqawi (2006). … The American writer Mark Twain was the first to point out the conflicted American psyche when he wrote: “I never wished a man to die, but I have read many obituaries with great pleasure.”
The centrist Süddeutsche Zeitung, in an essay titled “Applause for Bloody Revenge,” says:
Obama argues that by killing bin Laden “justice” has been restored. But many say the U.S. president has appealed to an “Old Testament sense of justice,” that is to say, eye for eye, tooth for tooth. This is actually “revenge” and has no international legal legitimacy.
In the center-left Frankfurter Rundschau, an article titled “Merkel’s False Joy” says:
German Chancellor Angela Merkel, a pastor’s daughter and the leader of a party that calls itself Christian. One should think that the Ten Commandments serve as their guide. For example, the fifth, “You shall not kill.” Now this is a recommendation on which every civilized human being can agree.
* * *
But how do we fit this with the message of the Chancellor: “I am delighted that we managed to kill bin Laden.” She is happy about the violent death of a terrorist, but who after all was also a human being. Was she paying attention in church when the pastor taught about the Fifth Commandment?
* * *
In the case of Merkel, the contradiction between the Christian talk and actual conduct is especially noteworthy. But the double standards of Western society is reflected everywhere. Anyone who claims to fight for the rule of law should not trample on its principles.
The centrist Die Zeit, in an article titled “Bin Laden Should Have Been Tried in a Court of Law,” says: “Killing bin Laden was a strategic mistake. A trial of the al-Qaida chief would have demonstrated the superiority of the democratic system. … The U.S. has missed an historic opportunity. … The Western world was in a similar situation once before. How great was the fear of the Allies before the Nüremberg trials. It was feared that Goering’s monologues would renew the enthusiasm of Germans for their slogans. … But the Allies went through it, according to the rule of law and as fair as possible. Today the Nüremburg trials are considered to have sown the seeds for the establishment of the International Criminal Court. … A trial of Osama bin Laden would have sent a very clever signal to the world community, which often has doubts about the principles of democracy (and those of America). It would have been a signal to the democracy movements in Arab countries. … A trial of bin Laden would have shown how much superior the rule of law is to an Al Qaeda-like theocracy.”
In Spain, the center-right ABC, in a commentary titled “Mourners of the New Che,” sums it up:
The reaction of the most ardent supporters of Socialist Prime Minister José Luis Rodríguez Zapatero and his media sycophants put in evidence the sinister result of years of Zapatero worship among certain sectors of the left. They were unable to congratulate the American president, whom they have worshipped as a “secular saint” in the mistaken belief that he was one of their own. The traditional knee-jerk anti-Americanism promoted by the radical left in our time has led to truly grotesque digressions on the relevance of the death of Osama bin Laden. Some have not shied away from defending bin Laden as the new Che. Making icons of murderers. Mourners crying out against the villainy of the “Evil Empire.” We should not be surprised. They are the same ones that support flotillas to Gaza in support of Hamas, the Palestinian terrorist organization that yesterday condemned “the assassination of the great Arab fighter hero.”
As the passage in this Spanish magazine concludes, “the phobia of freedom makes strange bedfellows,” indeed.
Die Zeit,
Soeren Kern is Senior Analyst for Transatlantic Relations at the Madrid-based Grupo de Estudios Estratégicos / Strategic Studies Group.
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When this thread got heated up, this was the post I most agreed with: Crafty wrote, "I am enjoying being a fly on the wall for this one".
Imagine the 'legal' reaction to the case of bin Laden if it was Bush instead of Obama. As I wrote earlier, isn't 'breaking and entering already a crime, and kidnapping! The kill is just an additional charge if the whole operation is 'illegal'. Where were the legalists when the 50 million dead or alive was issued? What happened to the American opponents of the death penalty during the celebration?
My question earlier about disproportional response still stands, but this was this opposite. One guilty man shot for 3000 innocent killed.
The point about right to answer the charges is ludicrous. He had 10 years and did nothing but take credit and issue more killing orders. Had he denied, surrendered and asked for a civilian trial with all rights extended as a condition of his surrender - that is another way this could have come down, and probably avoided 10 years of war in Afghanistan, among other things.
The question to me (in war law) comes down more to jurisdiction rather than law. Water boarding is a terrible thing to apply indiscriminately, but it wasn't. It is NOT torture in the extreme sense of term and the word in terms of war crimes is being used in the extreme sense. There are arguments on both sides of that so the question is who decides.
The European seculars point out the 5th Commandment, but on the forum we decided that means Thou shalt not murder, not thou shalt not kill. One obvious distinction is self defense, and there are arguably other differences between killing and murder such as justifiable, self defense war and a legal and justifiable criminal death penalty.
Self defense of a nation, Israel and US for examples here, requires deterrence and consequence. This was an attempt at both. It is not revenge, it is just tying all attacks against the United States to a consequence for the purpose of preventing / deterring future attacks.
Reading someone his rights, speedy trial, hiding across a foreign border, right to confront your accusers - these don't apply in war.
My knowledge of the Geneva convention, like most Americans, comes mostly from hearing Col. Hogan win arguments with Col. Klink, as if the regime of Hitler was striving in all ways to comply with international law.
What exactly have we agreed to as it applies to this band of terrorism and who is the judge?
If we have signed treaties or agreed to laws that prevent us from defending our nation, that prevent former President from traveling to Europe because he acted to defend and secure our country, we need to go back and start rescinding treaties. Article 2 of the UN Charter is mentioned in the Europe piece. Seriously, if there is a contradiction there with defending the United States of America against all attackers, we need to get out of that organization and start over.
If laws govern war, let's get the laws updated to match the threats we face.
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How is waterboarding illegal, without doing physical harm or inflicting permanent injury, but bullets through the eyeballs without resistance is legal and heroic? Chris Wallace of Fox News Sunday nailed guest Tom Donilon, national security adviser, with this contradiction. (Looking forward to BD returning to these questions of law in war.)
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http://www.realclearpolitics.com/video/2011/05/09/wallace_to_donilon_if_shooting_bin_laden_is_ok_why_cant_you_do_waterboarding.html
Wallace To Donilon: If Shooting Bin Laden Is OK, 'Why Can't You Do Waterboarding?'
Wallace: We'll stipulate -- I think we'll all stipulate -- that bin Laden was a monster, but why is shooting an unarmed man in the face legal and proper while enhanced interrogation, including waterboarding of a detainee under very strict controls and limits -- why is that over the line?
Donilon: Well, let me talk first about the first half of the statement that you made. Again, the president met with the operators yesterday at Fort Campbell, Kentucky, and here are the facts. We are at war with al-Qaeda. Osama bin Laden is the emir or commander, indeed the only leader of al-Qaeda in its 22 year history. This was his residence and operational compound. Our forces entered that compound and were fired upon in the pitch black. It's an organization that uses IEDs and suicide vests and booby traps and all manner of other kinds of destructive capabilities.
Wallace: Mr. Donilon, let me just make my point. I’m not asking you why it was OK to shoot Osama bin Laden. I fully understand the threat. And I’m not second-guessing the SEALs. What I am second guessing is, if that’s OK, why can’t you do waterboarding? Why can’t you do enhanced interrogation of Khalid Sheikh Mohammed, who was just as bad an operator as Osama bin Laden?
Donilon: Because, well, our judgment is that it’s not consistent with our values, not consistent and not necessary in terms of getting the kind of intelligence that we need.
Wallace: But shooting bin Laden in the head is consistent with our values?
Donilon: We are at war with Osama bin Laden.
Wallace: We’re at war with Khalid Sheikh Mohammed.
Donilon: It was a military operation, right? It was absolutely appropriate for the SEALs to take the action -- for the forces to take the action that they took in this military operation against a military target.
Wallace: But why is it inappropriate to get information from Khalid Sheikh Mohammed?
Donilon: I didn’t say it was inappropriate to get information from Khalid Sheikh Mohammed.
Wallace: You said it was against our values.
Donilon: I think that the techniques are something that there’s been a policy debate about, and our administration has made our views known on that.
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http://nation.foxnews.com/usama-bin-laden/2011/05/09/wallace-hammers-obama-official-why-shooting-unarmed-man-face-legal-while-
Wallace Hammers Obama Official: Why Is Shooting an Unarmed Man in the Face Legal While Enhanced Interrogation Is Over the Line?
Bwahahaha! Great minds think alike. :-D
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That is a man bites dog story , , , and very funny.
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I am sorry that it was necessary that I step away at the same time the forum was burning with desire for my opinion. I am very sorry to have left you hanging, GM!
What is that you want to hear? Please be specific.
I will volunteer this, to begin with: am I pleased that OBL is dead? Sure. Am I especially happy with the means? No, not so much. You are right that it seems that President Obama overstepped the bounds of war. My issue, and this is true regardless of party affiliation, is that I believe that presidents power grab. As one who is concerned with constitutional limits yourself, GM, I am sure you understand this.
I should point out that not everyone thinks that "enhanced interrogation" reaped benefits by leading to bin Laden.
Fastest growing religion among liberals? Born-again Waterboarders!
http://hotair.com/archives/2011/05/02/ap-first-intel-on-bin-ladens-whereabout-gathered-in-cia-secret-prison/
Torture May Have Slowed Hunt For Bin Laden, Not Hastened It
Torture apologists are reaching precisely the wrong conclusion from the back-story of the hunt for Osama bin Laden, say experienced interrogators and intelligence professionals.
Defenders of the Bush administration’s interrogation policies have claimed vindication from reports that bin Laden was tracked down in small part due to information received from brutalized detainees some six to eight years ago.
But that sequence of events -- even if true -- doesn’t demonstrate the effectiveness of torture, these experts say. Rather, it indicates bin Laden could have been caught much earlier had those detainees been interrogated properly.
"I think that without a doubt, torture and enhanced interrogation techniques slowed down the hunt for bin Laden," said an Air Force interrogator who goes by the pseudonym Matthew Alexander and located Abu Musab al-Zarqawi, the leader of al Qaeda in Iraq, in 2006.
It now appears likely that several detainees had information about a key al Qaeda courier -- information that might have led authorities directly to bin Laden years ago. But subjected to physical and psychological brutality, "they gave us the bare minimum amount of information they could get away with to get the pain to stop, or to mislead us," Alexander told The Huffington Post.
"We know that they didn’t give us everything, because they didn’t provide the real name, or the location, or somebody else who would know that information," he said.
In a 2006 study by the National Defense Intelligence College, trained interrogators found that traditional, rapport-based interviewing approaches are extremely effective with even the most hardened detainees, whereas coercion consistently builds resistance and resentment.
"Had we handled some of these sources from the beginning, I would like to think that there’s a good chance that we would have gotten this information or other information," said Steven Kleinman, a longtime military intelligence officer who has extensively researched, practiced and taught interrogation techniques.
"By making a detainee less likely to provide information, and making the information he does provide harder to evaluate, they hindered what we needed to accomplish," said Glenn L. Carle, a retired CIA officer who oversaw the interrogation of a high-level detainee in 2002.
But the discovery and killing of bin Laden was enough for defenders of the Bush administration to declare that their policies had been vindicated.
Liz Cheney, daughter of the former vice president, quickly issued a statement declaring that she was "grateful to the men and women of America’s intelligence services who, through their interrogation of high-value detainees, developed the information that apparently led us to bin Laden."
John Yoo, the lead author of the "Torture Memos," wrote in the Wall Street Journal that bin Laden's death "vindicates the Bush administration, whose intelligence architecture marked the path to bin Laden's door."
Former Bush secretary of defense Donald Rumsfeld declared that "the information that came from those individuals was critically important."
The Obama White House pushed back against that conclusion this week.
"The bottom line is this: If we had some kind of smoking-gun intelligence from waterboarding in 2003, we would have taken out Osama bin Laden in 2003," Tommy Vietor, spokesman for the National Security Council, told The New York Times.
Chronological details of the hunt for bin Laden remain murky, but piecing together various statements from administration and intelligence officials, it appears the first step may have been the CIA learning the nickname of an al Qaeda courier -- Abu Ahmed al-Kuwaiti -- from several detainees picked up after the Sept. 11, 2001, terrorist attacks.
Then, in 2003, Khalid Sheikh Mohammed (KSM), the 9/11 mastermind, was captured, beaten, slammed into walls, shackled in stress positions and made to feel like he was drowning 183 times in a month. When asked about al-Kuwaiti, however, KSM denied that the he had anything to do with al Qaeda.
In 2004, officials detained a man named Hassan Ghul and brought him to one of the CIA’s black sites, where he identified al-Kuwaiti as a key courier.
A third detainee, Abu Faraj al-Libi, was arrested in 2005 and under CIA interrogation apparently denied knowing al-Kuwaiti at all.
Once the courier's real name was established -- about four years ago, and by other means -- intelligence analysts stayed on the lookout for him. After he was picked up on a monitored phone call last year, he ultimately led authorities to bin Laden.
The link between the Bush-era interrogation regime and bin Laden’s killing, then, appears tenuous -- especially since two of the three detainees in question apparently provided deceptive information about the courier even after being interrogated under durress.
"It simply strains credulity to suggest that a piece of information that may or may not have been gathered eight years ago somehow directly led to a successful mission on Sunday. That's just not the case," said White House Press Secretary Jay Carney.
But for Alexander, Kleinman and others, the key takeaway is not just that the torture didn't work, but that it was actually counterproductive.
"The question is: What else did KSM have?" Alexander asked. And he’s pretty sure he knows the answer: KSM knew the courier’s real name, "or he knew who else knew his real name, or he knew how to find him -- and he didn’t give any of that information," Alexander said.
Alexander’s book, "Kill or Capture," chronicles how the non-coercive interrogation of a dedicated al Qaeda member led to Zarqawi’s capture.
"I’m 100 percent confident that a good interrogator would have gotten additional leads" from KSM, Alexander said.
"Interrogation is all about getting access to someone’s uncorrupted memory," explained Kleinman, who as an Air Force reserve colonel in Iraq in 2003 famously tried, but failed, to stop the rampant, systemic abuse of detainees there. "And you can’t get access to someone’s uncorrupted memory by applying psychological, physical or emotional force."
Quite to the contrary, coercion is known to harden resistance. "It makes an individual hate you and find any way in their mind to fight back," and it inhibits their recall, Kleinman said. Far preferable, he said, is a "more thoughtful, culturally-enlightened, science-based approach."
"I never saw enhanced interrogation techniques work in Iraq; I never saw even harsh techniques work in Iraq," Alexander said. "In every case I saw them slow us down, and they were always counterproductive to trying to get people to cooperate."
Carle, who was not a trained interrogator, said he came to recognize that interrogation was a lot like something he did know how to do: manage intelligence assets in the field.
"Perverse and imbalanced as the relationship is between interrogator and detainee, it’s nonetheless a human relationship, and building upon that, manipulating the person, dealing straight with the person, simply coming to understand the person and vice versa, one can move forward," he told reporters on a conference call Thursday.
Carle’s upcoming book, "The Interrogator," chronicles his growing doubts about his orders from his superiors.
"The methods that I was urged to embrace, I found first-hand -- putting aside the moral and legal issues, which we really cannot put aside -- from a practical and a tactical and a strategic sense and a moral and legal one, the methods are counterproductive," he said.
"They do not work," he added. "They cause retrograde motion from what you’re seeking to accomplish. They increase resentment, not cooperation. They increase the difficulty in assessing what information you do hear is valid. They increase the likelihood that you will be given disinformation and have opposition from the person that you’re interrogating, across the board."
Carle said the detainee he worked with regressed when coerced. "All it did was increase resentment and misery," he said.
Larry Wilkerson, chief of staff under former secretary of state Colin Powell, said, "I’d be naive if I said it never worked," referring to enhanced interrogation techniques.
"Of course, occasionally it works, Wilkerson said. "But most of the time, what torture is useful for is confessions. It’s not good for getting actionable intelligence."
Experts agree that torture is particularly good at one thing: eliciting false confessions.
Bush-era interrogation techniques, were modeled after methods used by Chinese Communists to extract confessions from captured U.S. servicemen that they could then use for propaganda during the Korean War.
"Somehow our government decided that ... these were effective means of obtaining information," Carle said. "Nothing could be further from the truth."
At a hearing in Guantanamo, several years after being waterboarded, KSM described how he would lie -- specifically about bin Laden’s whereabouts -- just to make the torture stop. "I make up stories," Mohammed said. "Where is he? I don't know. Then, he torture me," KSM said of an interrogator. "Then I said, 'Yes, he is in this area.'"
There are many other reasons to be skeptical of the argument that torture can lead to actionable intelligence, and specifically that enhanced interrogation led investigators to bin Laden.
Many of the positive accomplishments once cited in defense of enhanced interrogation have since been debunked.
And though its defenders are now trying to talk up the significance of the earlier intelligence, around the time of al-Libi’s interrogation, the CIA was not stepping up the hunt for bin Laden. Instead, it was closing down the unit that had been dedicated to hunting bin Laden and his top lieutenants.
This new scenario hardly supports a defense of torture on the grounds that it’s appropriate in "ticking time bomb" scenarios, Alexander said. "Show me an interrogator who says that eight years is a good result."
The interrogation experts also noted the significant role Yoo, Rumsfeld and former Vice President Cheney each played in opening the door to controversial interrogation practices.
Wilkerson has long argued that there is ample evidence showing that "the Office of the Vice President bears responsibility for creating an environment conducive to the acts of torture and murder committed by U.S. forces in the war on terror."
Yoo wrote several memos that explicitly sanctioned measures that many have deemed constitute torture, and the memo from Rumsfeld authorizing the use of stress positions, hooding and dogs was widely seen as a sign to the troops that the "gloves could come off."
"These guys are trying to save their reputations, for one thing," Alexander said. "They have, from the beginning, been trying to prevent an investigation into war crimes."
"They don’t want to talk about the long term consequences that cost the lives of Americans," Alexander added. The way the U.S. treated its prisoners "was al-Qaeda’s number-one recruiting tool and brought in thousands of foreign fighters who killed American soldiers," Alexander said. "And who want to live with that on their conscience?"
From Bush himself on down, the defenders of his interrogation regime have long insisted that it never amounted to torture. But waterboarding, the single most controversial aspect of Bush's interrogation regime, has been an archetypal form of torture dating back to the Spanish Inquisition. It involves strapping someone to a board and simulating drowning them. The U.S. government has historically considered it a war crime.
One can quibble over the proper term for some of the other tactics employed with official sanction, including forced nudity, isolation, bombardment with noise and light, deprivation of food, forced standing, repeated beatings, applications of cold water, the use of dogs, slamming prisoners into walls, shackling them in stress positions and keeping them awake for as long as 180 hours. But they comprise violations of human dignity, as codified by the United Nations -- and championed by the U.S. government -- ever since World War II.
Many have argued that whether torture works or not is irrelevant -- that it is flatly illegal, immoral, and contrary to core American principles -- and that even if it were effective, it would still be anathema.
But that torture is unparalleled in its ability to obtain intelligence is the central argument of its defenders. To concede that torture doesn’t work -- as Alexander, Kleinman and Carle, among others, say -- would be to forfeit the whole game. It would be admitting that cruelty was both the means and the end.
And so the debate goes on.
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Man, you sure know how to wait until the fire has faded..... :wink:
Should KSM have been mirandized and allowed to lawyer up?
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Yeah, I know. I really am sorry about that.
Honestly, I am on the fence about this. So, I will give you this: I don't think that every POW (or whatever the term en vogue is today) needs to be taken to court.
Man, you sure know how to wait until the fire has faded..... :wink:
Should KSM have been mirandized and allowed to lawyer up?
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I'm reminded of a case I worked on that still ticks me off because it was a nothing case and I tried everything in the book to get a confession and nada. It was a stupid criminal mischief case and I wasn't even the primary, I was asked to do the followup. I interview the one and only suspect. Now, I know she's lying, and she knows I know she's lying.
At first, I worked at it to brush up on my skills and I had nothing else going on at that moment, after a while, it became a matter of pride. I'm using every approach I've learned in every class I've taken. Nothing works.
Now, in the big picture, this really was meaningless. hell at my dept. it was meaningless. The other officer sitting in on the interview is looking at me like "WTF", let's wrap this up and get out of here".
So, without anymore meaningless details, my point is, all the interview and interrogation techniques available to US law enforcement are sometimes ineffective. Some domestic criminals are smart enough to lawyer up right out of the gate. Now, even in the most severe criminal cases, this is bad, but not catastrophic at a national level. This does not mean I in any way endorse "enhanced interrogation" for domestic law enforcement. I think that would do much more harm than good for us as a society.
Warfighting is different. Finding bin Laden is different, stopping a nuke from detonating in am American city is different. This is why the CIA and military are at the forefront in this war instead of the FBI.
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I am not persuaded by the Huffington Post piece that quotes pseudonym authors and political spokesmen as saying that we may or may not have been able to get this same information other ways, while intermingling the terms enhanced and torture as having the same meaning. Nor am I impressed with the false, straw argument that if [the Bush people] had all the information back then, why didn't they go get him. No one said they did.
These techniques led to these pieces of a puzzle and no interragatees were injured. People could instead be thankful, but that doesn't sell books.
Look at what used to happen at Abu Ghraib with electric currents running through basement water with increasing levels of current, or perhaps the story of Dujail for which Saddam was hanged for definitions of real torture. They weren't using sleep deprivation or trickery.
Who has the author 'built rapport' with that is comparable to the guy who destroyed 4 fully loaded jetairliners, the trade towers at the opening of business, the Pentagon, and personally beheaded Wall Street Journal reporter Daniel Pearl for the making of a video? Again, he should be thankful that what was done in questioning had any success.
"But they comprise violations of human dignity, as codified by the United Nations..."
The statement above seems intentionally vague. In all this discussion, I am not seeing what the international laws are or really who has the jurisdiction. The attorney general of the United States sought out and published detailed opinions of what constitutes torture and what constitutes enhanced techniques within the bounds of legality and decency. (Every liberal conveniently disagrees though they enjoy the period of relative safety that has followed.) No appendages were cut off, no eyes poked out, no beheading. Seriously, who do these people think we are dealing with?
What laws, what court and what rights of due process was former President Bush going to get if he had traveled to Switzerland and been arrested by 'international police' for performing best efforts to protect the United States of America?
In contract law, an agreement can't bind one party without binding the other. Treaties and international accords are different? KSM has rights?? I've said earlier, if these organizations' authority supersede US law, let's get out now.
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Here I am, agreeing with Harold Koh.
http://opiniojuris.org/2011/05/19/the-lawfulness-of-the-us-operation-against-osama-bin-laden/
The Lawfulness of the U.S. Operation Against Osama bin Laden
by Harold Hongju Koh
[Harold Hongju Koh is the Legal Adviser, U.S. Department of State.]
I write in response to those who have raised questions regarding the lawfulness of the recent United States operation against Al Qaeda leader Osama bin Laden. United States officials have recounted the facts of that well-publicized incident, most recently in the interview of President Obama on CBS News 60 Minutes on May 8, 2011. In conducting the bin Laden raid, the United States acted in full compliance with the legal principles previously set forth in a speech that I gave to the American Society of International Law on March 25, 2010, in which I confirmed that “n …all of our operations involving the use of force, including those in the armed conflict with al-Qaeda, the Taliban and associated forces, the Obama Administration is committed by word and deed to conducting ourselves in accordance with all applicable law.” The relevant excerpts of that speech are set forth below:
The United States agrees that it must conform its actions to all applicable law. As I have explained, as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for Use of Military Force (AUMF). These domestic and international legal authorities continue to this day.
As recent events have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks. As you know, this is a conflict with an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks against us and our allies while hiding among civilian populations. That behavior simultaneously makes the application of international law more difficult and more critical for the protection of innocent civilians. Of course, whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses. In particular, this Administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:
• First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and
• Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.
In U.S. operations against al-Qaeda and its associated forces … great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.
…ome have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.
…
[In addition] some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.
… Finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
In sum, let me repeat: … this Administration is committed to ensuring that the targeting practices that I have described are lawful.” (emphasis in original)
Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda. In addition, 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. By enacting the AUMF, Congress expressly authorized the President to use military force “against … persons [such as bin Laden, whom the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 …in order to prevent any future acts of international terrorism against the United States by such … persons” (emphasis added). Moreover, the manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way. Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.
In sum, the United States acted lawfully in carrying out its mission against Osama bin Laden.
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http://www.weeklystandard.com/blogs/did-enhanced-interrogation-20th-hijacker-help-identify-bin-laden-s-courier_559066.html
Did Enhanced Interrogation of the 20th Hijacker Help Identify Bin Laden’s Courier?
8:00 AM, May 3, 2011 • By THOMAS JOSCELYN
The exact identity of Osama bin Laden’s courier, who unwittingly led to his boss’s demise, remains to be confirmed, but CNN reports that it was a Kuwaiti known as Abu Ahmad al Kuwaiti. If that’s true, then obviously it wasn’t the courier mentioned in the leaked Gitmo file written for Abu Faraj al Libbi’s case. We’ll have to wait for more details from intelligence officials in the coming days before concluding this is right, but CNN’s reporting makes sense. Here’s why.
Obama administration officials have told the press that the courier was connected to two high-level al Qaeda operatives: Abu Faraj al Libbi and Khalid Sheikh Mohammed. Yesterday, Michael Isikoff reported that “20th hijacker” Mohammed al Qahtani began cooperating with U.S. intelligence officials after being put through a series of humiliating interrogations. According to an unnamed U.S. intelligence official cited by Isikoff, Qahtani “started to cooperate and, for a while, provided a wealth of information about al-Qaida, including references to the courier in question.”
Picking up on this thread, Elise Labott and Tim Lister of CNN say their “diplomatic source” stated the courier in question was “Abu Ahmad.” CNN then cites the leaked Gitmo file for Mohammed al Qahtani. Obama administration officials have described the courier as KSM’s “protégé” and the contents of Qahtani’s file jibe with that description.
Qahtani “received computer training from al-Qaida member Abu Ahmad al-Kuwaiti in preparation for his mission to the US,” the file reads. KSM “had al-Kuwaiti teach [Qahtani] to send email” because KSM “informed [Qahtani] when someone went on a mission, he would need to know how to send messages and email was safer than talking on the phone.” This is consistent with how the other 9/11 hijackers were trained to send emails (using code words and the like) prior to their deployment to the U.S. “Al-Kuwaiti took [Qahtani] to a local internet cafe for his training.”
Abu Ahmad al-Kuwaiti is described as a “senior al-Qaida facilitator and subordinate of” KSM in the file. Al-Kuwaiti worked in “the al-Qaida media house operated by KSM” and “served as a courier.”
Another al Qaeda facilitator stated that al-Kuwaiti traveled with Osama bin Laden and Gitmo’s analysts surmised that he may be “one of the individuals” Qahtani identified as accompanying Osama bin Laden prior to the escape from Tora Bora in late 2001.
Press reports say that KSM and Abu Faraj al Libbi gave up information on the courier, including his nom de guerre. In addition, other reports say that “detainees” at Gitmo gave up information on the courier. And now there are at least two accounts fingering Qahtani as the Gitmo detainee who told authorities about the courier. It is possible that all versions of the story are true, with multiple detainees giving up information on the courier. We’ll have to wait and see.
Either way, this is sure to “rekindle” (as the title of Isikoff’s piece says) the debate over interrogations. KSM and al Libbi were initially held in CIA black sites and subjected to enhanced interrogation techniques before being transferred to Gitmo. Qahtani was subjected to a specially-approved interrogation regime at Gitmo – one of the few ever implemented there – after the FBI repeatedly failed to get any information out of him.
Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.
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Time to Thank “Enhanced Interrogation Techniques”
Posted By Alan W. Dowd On May 6, 2011 @ 12:50 am
The successes of the CIA and other intelligence agencies, the old saying goes, are never known and the failures are never forgotten. The takedown of Osama bin Laden by Navy SEALs, who were guided onto their target by the work of hundreds of intelligence officers around the world, is a welcome exception to this rule. In a similar way, the successful strike on bin Laden forces us to take a fresh look at the notion that enhanced interrogation techniques (EITs) are not useful or effective. If recent comments from high-level officials are any indication, EITs played an important part in the hunt for and elimination of the terror mastermind.
Ever since 9/11, the CIA has been pounded for not “connecting the dots.” The “dots” in the world of intelligence-gathering can be anything—individuals, places, times, targets, dates, fragments of messages, inscrutable codes—but they mean nothing to policymakers unless or until an intelligence analyst can draw a line from one dot to another and thereby paint at least part of a picture.
That connecting line is crucial. And in the case of taking down bin Laden, that connecting line was apparently provided by sources that were subjected to EITs, according to an NBC interview of CIA director Leon Panetta.
The most likely source to provide what NBC calls “the thread of information” about bin Laden’s trusted courier was Khalid Sheik Mohammed (KSM), who masterminded the 9/11 attacks.
According to the Associated Press, KSM, while being held in a CIA prison somewhere in Eastern Europe, divulged nicknames of key bin Laden aides and couriers. Although he had been subjected to water-boarding, or simulated drowning, several times prior to divulging the names, KSM turned over these fragments of info long after agents had stopped using the technique. Obama administration officials concede, however, that “U.S. intelligence did not learn the identity of the courier until after the CIA interrogation program was terminated,” Reuters reports. In other words, it is possible fear of another round of water-boarding had an impact on KSM.
“We got beat up for it, but those efforts led to this great day,” Marty Martin, a retired CIA officer, told AP.
In fact, Panetta says, “intelligence garnered from water-boarded detainees was used to track down al-Qaeda leader Osama bin Laden and kill him,” according to NBC’s reporting. “We had a multiple source—a multiple series of sources—that provided information with regards to the situation,” according to Panetta. “Clearly some of it came from detainees and the interrogation of detainees, but we also had information from other sources as well.”
Rep. Peter King (R-NY), was less opaque. “The road to bin Laden began with water-boarding,” he told NBC News. As chairman of the Homeland Security Committee and a member of the Permanent Select Intelligence Committee, King would know.
In the cold calculus of this war, King has concluded that the ends justify the means, that innocent life is more important than a terrorist’s comfort: “I use the example of September 10th, 2001, if we had captured Mohammed Atta and we knew he was going to kill thousands of Americans but we didn’t know when or where, are we saying now you wouldn’t hold his head under water to save 3,000 lives?”
When put that way, most Americans would agree with King’s sentiment, and understandably so. When characterized as torture, Americans become a bit more squeamish about EITs, and understandably so.
The reason the “thread” that led the CIA and the SEALs to bin Laden is such a big deal is President Barack Obama’s very vocal views on EITs. Water-boarding “violates our ideals and our values,” Obama said in 2009. “I do believe that it is torture…And that is why I put an end to these practices.”
The Bush administration, on the other hand, rejected the characterization of EITs as torture and limited the use of EITs to a small handful of individuals. “We used this technique on three people,” President George W. Bush said in an interview after leaving office. “We gained…information to protect the country. And it was the right thing to do as far as I’m concerned.”
It’s a policy difference, a difference of worldviews and philosophy, and that’s what elections are about. Obama’s 2009 executive order that reversed Bush administration policy on EITs authorizes only those interrogation techniques approved by the U.S. Army Field Manual. The problem is, those techniques may not have—probably would not have—persuaded KSM to say much of anything.
The intelligence community in general and the Bush administration in particular have been forced to defend their post-9/11 tactics ad nauseam and criticized for not connecting all the pre-9/11 dots. Now that those tactics are helping to connect the dots—and in fact clearing a path all the way to bin Laden—perhaps it’s time to stop criticizing them.
Alan W. Dowd writes on defense and security issues.
Article printed from FrontPage Magazine: http://frontpagemag.com
URL to article: http://frontpagemag.com/2011/05/06/time-to-thank-enhanced-interrogation-techniques/
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Alan Dershowitz was on cable defending the value of "enhanced interrogation".
More or less he said that if "we" as a nation are going to prohibit this under any circumstances than we should accept the FACT that we may not be getting information that will help save lives and thus an increased risk. When he was pushed he ultimately came out and (unlike in the past) said he is against it but he states it is niave and frankly lying when people claim this does not get information that is helpful.
He was clearly saying liberals are being very dishonest when they say torture doesn't work.
Finally one liberal who is honest.
Of course torture works! If the person really knows anything they will give it up. If they don't yes they will offer false information.
Common sense. Only in the movies do we see the hero get tortured fro days and not give in. No one in their right mind thinks this is reality.
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http://www.washingtontimes.com/news/2011/may/19/wikileaks-bolsters-argument-for-enhanced-interroga/print/
Before the interrogations, the U.S. knew little about al Qaeda in the immediate aftermath of the Sept. 11, 2001, terrorist attacks. Years later, the CIA and military had accumulated a large database of ongoing plots and the identities of terrorists, the WikiLeaks files show.
"The WikiLeaks documents provide still additional evidence that intelligence gained from CIA detainees not only helped lead us to Osama bin Laden, it helped us disrupt a number of follow-on attacks that had been set in motion after 9/11," said Marc Thiessen, a former Bush speechwriter.
"Without this program, we would not have gone nearly 10 years without another catastrophic attack on the homeland. This is quite possibly the most important, and most successful, intelligence program in modern times. But instead of medals, the people behind this program have been given subpoenas."
He was referring to Attorney General Eric H. Holder Jr.'s launch of a criminal investigation of CIA officers who conducted the "enhanced" interrogations, some of which the Obama administration has dubbed "torture."
The killing of Osama bin Laden underscores the value of the vast intelligence database. The treasure trove of information includes the identities of terrorists operating abroad, plots to kill civilians and details on how al Qaeda used a network of couriers for clandestine communication.
Public disclosure of the interrogation windfall began in April by the anti-secrecy website WikiLeaks, which obtained hundreds of classified U.S. reports on detainees written by Joint Task Force Guantanamo, the military unit in charge of the prison at U.S. Naval Base Guantanamo Bay, Cuba.
As of Thursday, WikiLeaks had released 765 of 779 Gitmo files.
The files show that prisoner Abu Farajal al-Libi, al Qaeda's No. 3 and a close aide to bin Laden, first disclosed the terrorist master's special courier to the CIA. It was the agency's ability to find and track the messenger that ultimately led a team of Navy SEALs to bin Laden's compound in Abbottabad, Pakistan, where he was killed early on May 2.
Supporters of sending terrorist suspects to Guantanamo Bay — which the Obama administration has vowed to shutter, though its initial deadline has come and gone — for trials at military commissions say the prison provided a single collection point to assess and cross-check intelligence on an enemy the United States knew little about.
"We learned a tremendous amount about the operation, not only in Afghanistan but the organizational structure and how they were operating outside the immediate combat area, for example in Europe," said retired Brig. Gen. Thomas L. Hemingway, the Pentagon's top legal adviser to the commissions' office during Guantanamo's early days.
Gen. Hemingway recalled a case when the military command in Afghanistan was looking for a senior Taliban commander. Interrogators found a detainee who knew the suspect. The detainee drew a diagram of his compound. Aerial surveillance located the home and led to the commander's capture.
"There was a lot of actionable intelligence that was developed down there for a long time," Gen. Hemingway said.
Hunt for bin Laden
In the hunt for bin Laden, the files show al-Libi provided critical information. The CIA used so-called enhanced-interrogation techniques on al-Libi but did not subject him to waterboarding — the most controversial of techniques, which also included stress positions, slapping, shaking and dousing captives with cold water.
"In July 2003, [al Libi] received a letter from [bin Laden's] designated courier, Maulawi Abd al-Khaliq Jan, requesting detainee take on the responsibility of collecting donations, organizing travel and distributing funds to families in Pakistan," the document stated.
"[Bin Laden] stated detainee would be the official messenger between [bin Laden] and others in Pakistan. In mid-2003, detainee moved his family to Abbottabad, PK, and worked between Abbottabad and Peshawar."
U.S. officials said the name provided to interrogators was false. But the intelligence added to the other bits of data that helped the U.S. learn how bin Laden planned to direct al Qaeda from Pakistan, the real name of his special courier and the connection of the group to Abbottabad, where the courier moved around 2006.
The courier, who eventually led the U.S. to the compound unwittingly, was killed in the raid. The Obama administration has not identified that person's name.
Other plots
An earlier declassified CIA report on Sept. 11 mastermind Khalid Shaikh Mohammed reveals that he disclosed the identities of several operatives and the status of a number of planned attacks.
One plan called for commandeering commercial airliners at London's Heathrow Airport. Authorities broke up the plot.
Mohammed was one of three al Qaeda leaders waterboarded by the CIA. The Bush administration called it part of "enhanced" interrogations. The Obama administration has labeled it "torture."
The leaked detainee files show that other ranking al Qaeda operatives provided a first-ever look inside the al Qaeda killing machine:
• Ramzi Bin al-Shibh revealed how operatives gained visas to enter the West, often by gaining acceptance to an educational institute. If they were denied visas at U.S. embassies in the Middle East, they would try to gain entrance to Europe and apply from there.
• A terrorist identified as Hambali, the leader of the al Qaeda-funded Islamiyah network in South Asia, provided extensive information on his terrorist contacts in Indonesia. Responsible for the 2002 Bali bombing that killed more than 200, Hambali disclosed the existence of the "Infraq Fisabillah" fund used to finance travel by terrorists to and from Pakistan for training.
• Abu Zubaydah, another high-ranking bin Laden aide, provided a wealth of information on al Qaeda's ability to forge documents used to gain access to the West. Zubaydah, for example, forged medical files to show that a terrorist had been tortured. The supposed victims then used the phony medical history to gain political asylum in Europe or the United States.
"Detainee has intimate knowledge of al Qaeda's use of a document committee for forging documents such as identification cards, visas, and passports," the Zubaydah file states, adding, "Detainee has provided a wealth of information on terrorist organizations. He has provided intelligence on their operations and leadership. Detainee continues to be a valuable source of intelligence for operations still occurring today."
• Mohammed Abdah al-Nashiri, another close bin Laden aide, operated a separate al Qaeda operation in Yemen that received aid from Yemeni security forces. The revelation showed that, as in Pakistan, a U.S. ally supposedly working with the West actually was helping the enemy.
One of three al Qaeda captives waterboarded, Nashiri provided the names of a number of operatives still in the field.
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I thought you had decided that this horse was dead.
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I said the fire had faded, however it's still a relevant issue, given that it remains unresolved in the political and legal sphere.
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http://online.wsj.com/article/SB10001424052702303745304576359820767777538.html?mod=rss_opinion_main
Birthers, Truthers and Interrogation Deniers
The latest lunacy to get a popular hearing is the idea that harsh CIA interrogations yielded no useful intelligence. I guess we should toss out the 9/11 Commission Report..
BY MICHAEL HAYDEN
For all of its well-deserved reputation for pragmatism, American popular culture frequently nurtures or at least tolerates preposterous views and theories. Witness the 9/11 "truthers" who, lacking any evidence whatsoever, claim that 9/11 was a Bush administration plot. And then we have the "birthers" who, even in the face of clear contrary evidence, take as an article of faith that President Obama was not born in the United States and hence is not eligible to hold his current office.
Let me add a third denomination to this faith-based constellation: interrogation deniers, i.e., individuals who hold that the enhanced interrogation techniques used against CIA detainees have never yielded useful intelligence. They, of course, cling to this view despite all evidence to the contrary, despite the testimony of four CIA directors, and despite Mr. Obama's chief counterterrorism adviser John Brennan's statement that there's been "a lot of information that has come out from these interrogation procedures that the agency has in fact used against the real hard-core terrorists."
The recent dispute over what strains of intelligence led to the killing of Osama bin Laden highlights the phenomenon. It must appear to outside observers like a theological debate over how many angels can reside on the head of a pin. So we see carefully tailored arguments designed to discount the value of enhanced interrogations: the first mention of the courier's name came from a detainee not in CIA custody; CIA detainees gave false and misleading information about the courier; there is no way to confirm that information obtained through enhanced interrogation was the decisive intelligence that led us directly to bin Laden.
All fair enough as far as they go. But let the record show that when I was first briefed in 2007 about the brightening prospect of pursuing bin Laden through his courier network, a crucial component of the briefing was information provided by three CIA detainees, all of whom had been subjected to some form of enhanced interrogation. One of the most alerting pieces of evidence was that two of the detainees who had routinely been cooperative and truthful (after they had undergone enhanced techniques) were atypically denying apparent factual data—a maneuver taken as a good sign that the CIA was on to something important.
So that there is no ambiguity, let me be doubly clear: It is nearly impossible for me to imagine any operation like the May 2 assault on bin Laden's compound in Abbottabad, Pakistan, that would not have made substantial use of the trove of information derived from CIA detainees, including those on whom enhanced techniques had been used.
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It is easy to imagine the concerns at the political level as the CIA built its case that bin Laden was in the Abbottabad compound, and it became obvious that detainee data was an important thread of intelligence. To his credit, and obviously reflecting this reality, White House spokesman Jay Carney has not denied that fact but correctly pointed out that there were multiple co-dependent threads that led to this success.
In response to a direct question on the CBS Evening News about enhanced interrogation and the bin Laden success, CIA Director Leon Panetta confirmed on May 3 that, "Obviously there was some valuable information that was derived through those kind of interrogations." He also added that it was an "open question" whether the information could have been elicited through other means, implicitly contradicting those who claim that other means would have produced the same information.
Let me add that this is not a discussion about the merits or the appropriateness of any interrogation technique. Indeed, I personally took more than half of the techniques (including waterboarding) off the table in 2007 because American law had changed, our understanding of the threat had deepened, and we were now blessed with additional sources of information. We can debate what was appropriate then, or now, but this is a discussion about a particular historical fact: Information derived from enhanced interrogation techniques helped lead us to bin Laden.
And so those who are prone to condemn the actions of those who have gone before (while harvesting the fruits of their efforts) might take pause. I've been personally asked about the appropriateness of waterboarding and—recognizing the immense challenge of balancing harsh treatment with saving innocent lives—usually respond: "I thank God that I did not have to make that decision." At the same time, I thank those who preceded me, made such decisions and thereby spared me the worst of the dilemma. Those who deny the usefulness of enhanced interrogation techniques might consider similar caution.
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Pravda on the Hudson:
Breaking News Alert
The New York Times
Tuesday, July 5, 2011 -- 7:06 PM EDT
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Somali Man Tied to Militants Was Detained Aboard U.S. Navy Ship for Months
A Somali man accused of ties to two Islamist militant groups was captured by the American military in April and interrogated for months aboard a navy ship without being warned of his Miranda rights to remain silent and have a lawyer. On Tuesday, the Obama administration announced that the man had been flown to New York City to face prosecution before a civilian court.
In an indictment unsealed in the Southern District of New York, Ahmed Abdulkadir Warsame was charged with nine counts related to accusations that he provided support to the Somalia-based Al Shabaab and the Yemen-based Al Qaeda in the Arabian Peninsula. Mr. Warsame was captured on April 19, and a plane carrying him arrived in New York City around midnight Monday night, officials said.
Read More:
http://www.nytimes.com/?emc=na
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Pravda on the Hudson:
Breaking News Alert
The New York Times
Tuesday, July 5, 2011 -- 7:06 PM EDT
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Somali Man Tied to Militants Was Detained Aboard U.S. Navy Ship for Months
A Somali man accused of ties to two Islamist militant groups was captured by the American military in April and interrogated for months aboard a navy ship without being warned of his Miranda rights to remain silent and have a lawyer. On Tuesday, the Obama administration announced that the man had been flown to New York City to face prosecution before a civilian court.
In an indictment unsealed in the Southern District of New York, Ahmed Abdulkadir Warsame was charged with nine counts related to accusations that he provided support to the Somalia-based Al Shabaab and the Yemen-based Al Qaeda in the Arabian Peninsula. Mr. Warsame was captured on April 19, and a plane carrying him arrived in New York City around midnight Monday night, officials said.
Read More:
http://www.nytimes.com/?emc=na
"They said if I voted for McCain, Miranda would be ignored by investigators. They were right!" :-D
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http://www.nationalreview.com/articles/271499/why-i-wish-eric-holder-watched-anthony-trial-fred-thompson
July 11, 2011 4:00 A.M.
Why I Wish Eric Holder Watched the Anthony Trial
Sometimes, evidence is not enough.
When the Casey Anthony verdict came in Tuesday, my mind went back to my days as a young federal prosecutor. I tried a lot of bank-robbery cases and only lost one. That’s the one I remember.
The defendant’s name was “Mutt” Matlock, and he taught me a few things about juries and “slam dunk” cases. A man who looked an awful lot like Mutt held up a bank in rural middle Tennessee. He used a Lugar pistol, had a piece of tape on his face, and made off with several thousand dollars in cash. One of the cashiers gave the police a description, and they beat a hot trail to Mutt’s door. They found Mutt, a Lugar, a piece of tape on a blanket under the bed, and several thousand dollars in sequentially numbered bills. For me, it was one of those slam-dunk cases Eric Holder likes to talk about so much.
At the trial we proved all of this. I couldn’t believe my good luck when Mutt’s lawyer put him on the stand, giving me a chance to cross examine him. But Mutt put on the good ol’ country-boy routine. He had no idea how all that stuff got to his place. I tore him to shreds, taking him through the details and the mountain of evidence against him. Mutt was just bewildered. “I’d like to help you out, Mr. Thompson, but I just don’t know,” he said. He was literally defenseless against my onslaught.
When the jury came back with a not-guilty verdict, I almost fell out of my chair. When we adjourned, I asked the foreman how they reached their result. “Well,” he said, “he was so dumb and befuddled, we just didn’t think he could have pulled off a precision bank robbery like that.” My brilliant cross examination had helped Mutt implement his strategy.
As the sportscasters say after a big upset, “That’s why they play the game. No outcome is ever a sure thing, when you’re dealing with human skills, emotions, and understanding. The Anthony case is just another reminder of this. But the sensational nature of the case aside, there are some other reminders to be drawn, some of national import. For example:
In the first place, a trial is not about obtaining justice as much as it’s about implementing a system of rules. Following the rules is more likely to produce justice than if you don’t. That’s why they call it the “the rule of law,” not “the rule of justice.”
Casey may have gotten off on an insanity defense. I know that this defense wasn’t pleaded as such, but, Casey’s having been caught in the most ridiculous, mind-boggling avalanche of lies, her lawyer basically argued that she did what people do when they’re as screwed up as this woman appears to be. That would explain her partying after the disappearance of her daughter and other bizarre behavior. What look like the actions of a murderer, may just be the actions of a nut-job. Not exactly like Mutt’s case, but in the same ballpark
The prosecution had almost 400 pieces of evidence. Sometimes four is better than 400. Most of the 400 is bound to have holes in them of some sort. Pretty soon the jury is concentrating on the holes and not the solid pieces. So “how can you not have reasonable doubt with so many holes?”
Although there was plenty of it, criticism of the defense lawyers is necessarily uninformed. We don’t know what they know from their investigation. Most important, we don’t know what their client is telling them or what restrictions she is placing on them. On the other hand it doesn’t necessarily mean they did a good job just because they won. Some cases are going to be won regardless.
For example…
Sometimes a case is won or lost as soon as a jury is impaneled. Although you don’t know it at the time, and you never really know for sure, I’m convinced that if by skill or luck a defense lawyer gets one or more jurors hardwired in his favor, he’s probably going to at least get a hung jury, almost regardless of the evidence. Some people are very reluctant to pass judgment on others and will not convict upon circumstantial evidence, no matter how strong, even though the law requires it. Often a lawyer simply can’t get truthful answers about this from prospective jurors on voir dire. A prospective juror may not even know this about himself. That’s why lawyers so often rely on prejudices more than anything else: Blacks are more sympathetic. Those of German heritage are by-the-book. A young woman is likely to be harder on another young woman, etc.
Jurors sometimes confuse “reasonable doubt” with any doubt. The “any doubt” standard would require at least a confession or personally witnessing the defendant committing the crime. I say “at least,” because people sometimes admit to crimes they have not committed. And, of course, if a person witnessed the crime he would be disqualified from sitting on the jury. This makes for “easy pickins” for a competent defense lawyer, who can raise at least a smidgen of doubt about even the most reliable piece of evidence.
Until the Anthony verdict, lawyers thought that if you promise something in your opening statement and you didn’t deliver it, then you would be punished by the jury. It happened in the O. J. Simpson case, but that case was so laced with racial elements it hardly stands as precedent for much else. Casey’s lawyer promised “molestation” and “accidental drowning” and produced no evidence of either. The jury was instructed to consider only the evidence, not lawyers’ statements, but it is likely that some or all of them could not erase such dramatic and troubling images from their minds as they heard the evidence and thought about how the evidence squared with what the lawyer had said. It may have helped produce reasonable doubt. This is going to have to be addressed in Florida and perhaps other jurisdictions. Either the jury should be specifically instructed that no proof was produced and cannot be considered or the lawyer should be disciplined, or both. This is not something that lawyers should be rewarded for.
My read on the case? Guilty of murder beyond a reasonable doubt. You don’t make an accident look like a murder, and you don’t place duct tape over the nose and mouth of a child who is already dead. I simply think that you had some jurors like the ones I’ve described. These things happen. People are fallible. Our system is fallible.
Apparently our own president and attorney general don’t understand this. It is with amazement that I read that a Somali terrorist is being imported into the United States to be tried in a U.S. civil court and accorded all the rights of an American citizen — anything to keep him out of Guantanamo and the military tribunal where he belongs.
We gladly run the risk of setting the guilty free in order to protect the rights of American citizens. Now we are running the same risk for the benefit for those with whom we are at war. One principle is as old as our country. The other was invented by this administration. Clearly, they learned nothing from the Casey Anthony trial. Either that or they are willing to run the risk to us all for the sake of their rigid and misinformed ideology.
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www.jihadwatch.org/2011/07/herman-cain-us-communities-have-right-to-ban-mosques.html
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**When does he get arrested and tried at the Hague?
http://www.telegraph.co.uk/news/worldnews/al-qaeda/8643525/Barack-Obama-accused-of-crimes-against-humanity-for-Osama-bin-Laden-killing.html
Barack Obama accused of crimes against humanity for Osama bin Laden killing
A Spanish lawyer has formally accused Barack Obama of crimes against humanity for ordering the assassination of Osama bin Laden.
4:04PM BST 17 Jul 2011
Daniel Fiol lodged a written complaint at the International Criminal Court accusing the US president of breaching the Geneva Convention.
Navy Seals acting on Mr Obama's orders shot the al-Qaeda leader dead on May 2 after storming his compound in Abbottabad, Pakistan.
In his written complaint, the Majorca-based lawyer said bin Laden should have been "pursued, arrested, tried and convicted" on behalf of "the victims of some terrible and appalling atrocities". The killing of bin Laden was even worse as it took place in foreign territory, Pakistan, without the permission of that government, he said.
"I am not being paid by al-Qaeda," Mr Fiol joked.
Former prime minister Tony Blair has said he would not have hesitated to order the assassination of bin Laden if the decision had been his.
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Woof,
I'm begining to think that letting the terrorist go and then killing them later might be the best way to close Gitmo. :lol:
KABUL, Afghanistan (AP) — NATO and Afghan forces have killed a former Guantanamo detainee who returned to Afghanistan to become a key al-Qaida ally, international officials said Saturday.
The militant's death was a reminder of the risks of trying to end a controversial detention system without letting loose people who will launch attacks on Americans.
Sabar Lal Melma, who was released from Guantanamo in 2007, had been organizing attacks in eastern Kunar province and funding insurgent operations, NATO spokesman Capt. Justin Brockhoff said.
A NATO statement described Melma as a "key affiliate of the al-Qaida network" who was in contact with senior al-Qaida members in both Afghanistan and Pakistan.
Another former detainee who joined the al-Qaida franchise in Yemen was killed in a recent U.S. airstrike there.
Troops surrounded Melma's house in Jalalabad city on Friday night and shot him dead when he emerged from the building holding an AK-47 assault rifle. Several other people were detained, NATO said.
A guard at the house, Mohammad Gul, said a group of American soldiers scaled the walls of the compound around 11 p.m. and stormed the house, shooting Melma in the assault. Three others were detained, Gul said.
Melma joined a long list of detainees believed to have reconnected with al-Qaida. In 2009, the Pentagon said 61, approximately 11 percent, of the detainees released from Guantanamo had rejoined the fight. Experts have questioned the validity of that number.
About 520 Guantanamo detainees have been released from custody or transferred to prisons elsewhere in the world.
There are 171 inmates still held at the facility in Guantanamo Bay, Cuba. President Barack Obama signed an executive order in 2009 just after taking office asking for it to be shut down within the year, but it has remained open as the administration has worked to find ways to deal with the inmates.
After the fall of the Taliban, Melma, 49, was given the rank of brigadier general in the Afghan National Army and placed in charge of approximately 600 border security troops in Kunar, according to a file made public by WikiLeaks.
But he was suspected of still helping carry out rocket attacks against U.S. troops, and he was captured in August 2002 while attending a meeting with U.S. military officials in Asadabad and transferred to the U.S. prison at Guantanamo Bay in October that year.
While imprisoned at Guantanamo Bay, the U.S. determined he was a "probable facilitator for al-Qaida members" and was also thought to have links to Pakistan's intelligence service. In 2005, he was described as a "medium risk" to the United States.
He was sent back to Afghanistan in September 2007.
NATO said in a statement that coalition forces have captured or killed more than 40 al-Qaida insurgents in eastern Afghanistan this year.
In June 2010, then CIA Director Leon Panetta said only 50 to 100 al-Qaida operatives continued to operate inside Afghanistan. It's not clear if Panetta was referring to commanders or foot soldiers.
In Kabul, meanwhile, a political standoff over the makeup of the legislature continued as police escorted a handful of new lawmakers into parliament despite protests from sitting parliamentarians that the new group is illegitimate.
In the southern city of Kandahar, officials said NATO forces killed a child and a shopkeeper who were caught up in a firefight between a military patrol and a gunman.
NATO said one of its service members was killed in an insurgent attack on Saturday in southern Afghanistan but not provide details.
The Danish military said one of its soldiers was killed in a roadside bomb that exploded as a foot patrol was moving past in southern Afghanistan's volatile Helmand province, but it was not immediately clear if that announcement referred to the same attack.
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Associated Press writer Adam Goldman contributed to this report from Kabul.
P.C.
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"I'm begining to think that letting the terrorist go and then killing them later might be the best way to close Gitmo."
I'm imagining a pay-per-view where a cargo container opens up in the middle of an Afghan desert and the countdown starts with drones buzzing overhead.....
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Woof,
Yeah, if it takes that to make it legal and humane but it just seems to me that a twenty cent bullet in the head and dumping them off the coast of Cuba would be cheaper. :lol:
P.C.
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Oh no, can't do that. We can't shoot them and we can't waterboard them, but shredding them with a Hellfire missile is totally fine.
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Woof,
If we can do it in Pakistan with Bin Laden, why not here? It just seems to me that it's unfair and costly that International law allows for it everywhere but here. Where's the equal justice? I'm telling you we keep getting the raw end of the deal. :x
P.C.
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Woof,
If we can do it in Pakistan with Bin Laden, why not here? It just seems to me that it's unfair and costly that International law allows for it everywhere but here. Where's the equal justice? I'm telling you we keep getting the raw end of the deal. :x
P.C.
Oh, you think we need to try to win this war? No, winning wars is what we used to do, it's as dated as a two parent family and monogamy. Now we must sabotage ourselves left we offend those who are trying to kill us.
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Woof,
I thought we were keeping these wars going indefinitely so we wouldn't have to declare victory and pull out in order to keep Iran from taking over Iraq, and Russia and China from splitting up Afghanistan. :roll: Which until now I thought was very clever strategy, you bubble buster! :cry:
P.C. :lol:
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Woof,
I thought we were keeping these wars going indefinitely so we wouldn't have to declare victory and pull out in order to keep Iran from taking over Iraq, and Russia and China from splitting up Afghanistan. :roll:
P.C.
Even easier to win totally and contain Iran Russia/China. But we'd need the will to do so.
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Based in great part upon Charles Krauthammer's analysis:
The Constitution provides for defending the country from insurrection, which by definition includes warring by citizens. George Washington himself put down Shay's Revolt. Lincoln put down the South-- with truly massive kills of uniformed soldiers, none of whom were arrested, read their rights, and given a trial. (I might add that spies were promptly shot and/or hung) Here we have American citizens waging war on the United States as part of a transnational religious fascist movement. The US Congress has recognized the existence of this war/conflict and Awlaki was an egregious and highly active actor in the waging of this war. This included participation in the recruitment and planning of the Crispy Weiner bomber attack on American soil. Frankly, this seems like a slam dunk to me. Two ears, one bullet , , , or a missile up the ass.
Works for me.
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http://www.washingtonpost.com/world/national-security/aulaqi-killing-reignites-debate-on-limits-of-executive-power/2011/09/30/gIQAx1bUAL_story.html?hpid=z1
The operation to kill Aulaqi involved CIA and military assets under CIA control. A former senior intelligence official said that the CIA would not have killed an American without such a written opinion.
A second American killed in Friday’s attack was Samir Khan, a driving force behind Inspire, the English-language magazine produced by al-Qaeda in the Arabian Peninsula. An administration official said the CIA did not know Khan was with Aulaqi, but they also considered Khan a belligerent whose presence near the target would not have stopped the attack.
The circumstances of Khan’s death were reminiscent of a 2002 U.S. drone strike in Yemen that targeted Abu Ali al-Harithi, a Yemeni al-Qaeda operative accused of planning the 2000 attack on the USS Cole. That strike also killed a U.S. citizen who the CIA knew was in Harithi’s vehicle but who was a target of the attack.
The Obama administration has spoken in broad terms about its authority to use military and paramilitary force against al-Qaeda and associated forces beyond “hot,” or traditional, battlefields such as Iraq or Afghanistan. Officials said that certain belligerents aren’t shielded because of their citizenship.
“As a general matter, it would be entirely lawful for the United States to target high-level leaders of enemy forces, regardless of their nationality, who are plotting to kill Americans both under the authority provided by Congress in its use of military force in the armed conflict with al-Qaeda, the Taliban, and associated forces as well as established international law that recognizes our right of self-defense,” an administration official said in a statement Friday.
President Obama and various administration officials referred to Aulaqi publicly for the first time Friday as the “external operations” chief for al-Qaeda in the Arabian Peninsula, a label that may be intended to underscore his status as an operational leader who posed an imminent threat.
**Somewhere, John Yoo is smiling.
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Woof,
My point is that he wasn't just sitting around, he was actively having his plans carried out.
P.C.
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Woof,
My point is that he wasn't just sitting around, he was actively having his plans carried out.
P.C.
Thank god he wasn't waterboarded!
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Obama gets one right
by Newt Gingrich
The ACLU is aghast. Liberal bloggers are proclaiming the end of the Bill of Rights. Even some on the right have joined in the hand-wringing.
The source of their angst? News last Friday that one of Al Qaeda's most senior leaders, Anwar al-Awlaki, was killed in a U.S. drone attack on his convoy in the Yemeni desert.
Awlaki was, as the President described him, "the leader of external operations for Al Qaeda in the Arabian peninsula." Nigel Inkster, Former Deputy Head of MI-6, called him the “ideologue of Al Qaeda.” Planning new ways to kill masses of American civilians was part of his job description, and by all indications he embraced the task eagerly. Awlaki was a senior recruiter of suicide bombers, and was linked to terror plots dating back to 9/11, when he apparently served as a "spiritual advisor" to several of the hijackers. He advised Nadal Malik Hasan, who is charged as the Fort Hood Shooter. He helped train Umar Farouk Abdulmutallab, the stymied Christmas Day underwear bomber. And he inspired the Times Square car bomber, too. The guy was our enemy.
But since the administration successfully tracked and eliminated one of the world's most dangerous terrorists, the ACLU and others are criticizing the President because Awlaki remained an American citizen. They claim the administration denied Awlaki "due process of law" by not trying him in an American court.
Never mind the fact that such a trial was not an option, with Awlaki roaming free in Yemen, helping to sow chaos there and spreading terror in the U.S. and Europe. (As Andrew McCarthy recently pointed out, "the authorization to assassinate Awlaki did not mean the administration would have him killed if it encountered him coming off a plane in Chicago.") Apparently having heard little about Yemen these days, the ACLU asserts that he was "far from any battlefield" there, and says he was "executed…without judicial process."
On this issue, the president's critics are dangerously mistaken. Congress gave the president the authority to use “all necessary and appropriate force” force against Al Qaeda in 2001. Anyone engaged in war against the United States, whether an American citizen or not, is subject to the use of force by the U.S. As John Yoo put it this week, "American citizens who join the enemy do not enjoy a roving legal force-field that immunizes them from military reprisal."
President Obama was entirely within his rights to take action against a top-ranking member of a group that has declared war on the U.S., and who was actively seeking to launch new attacks against this country.
President Obama's legal advisors unanimously agreed.
In addition to eliminating an important figure in the Al Qaeda leadership, Awlaki's killing might be good news in one other regard. I hope it represents a concession by the Obama administration that the view the Left has championed for years—that terrorism is just a "law enforcement" issue—is fundamentally wrong.
This is a war. Now at least one of the administration's legal opinions admits that fact.
In our documentary America at Risk: The War With No Name, Callista and I discussed the refusal of the Left to speak honestly about the enemy we are at war with. Our number one example in that movie was Major Hasan, the Fort Hood Shooter inspired by Alwaki. The section on Alwaki below shows exactly why we must consider this a war:
The ACLU and others accusing the President are in complete denial about the nature of the threat we face. American citizenship cannot be used as protection with which to wage war against America.
President Obama can wear this charge, at least, as a real "badge of honor."
Your Friend,
Newt
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Newt is right. Props to Obama.
If only he weren't equally as lethal to America's economy and military strength.
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Yes, Newt is right but it is with backhanded compliments that he credits Obama for abandoning his passivist campaign rhetoric and in a 180 reversal continues the hard line anti-terror policies of the previous administration. Being a critic was easy. Being responsible for our security is hard. Can anyone imagine the media and public uproar if the acceleration of drone activity across sovereign lines was happening under a conservative Republican. Even the killing of OBL would have been highly controversial.
Killing OBL and killing the Yemeni terrorists were great accomplishments, but taking the legs out figuratively of the leftists at home who normally criticize these actions was just as important for our future security.
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We forget it now, but there was a day, not so very long ago, when members of our most prestigious law schools and law firms feared that the government's war on terror posed a graver threat to America than did al Qaeda.
Those were the dark days before Barack Obama moved into the Oval Office. Whether the issue was the detention of terrorists, the interrogation of terrorists, or the idea that we were even at war with terrorists, one man—John Yoo, formerly of the Justice Department's Office of Legal Counsel—was held singularly culpable. No one expressed these concerns more vehemently than a former professor of Mr. Yoo's, Harold Koh, then dean of the Yale Law School.
What exercised Mr. Koh wasn't merely that Mr. Yoo's office had sanctioned waterboarding; it was the theory of executive authority behind his war advice. This theory Mr. Koh opposed with vigor, deporting himself in the manner of an Old Testament prophet.
Before the Senate Judiciary Committee in 2005, Mr. Koh spelled out where he believed Mr. Yoo's logic was taking us. Mr. Yoo, he said, "grossly over-reads the inherent power of the president under the commander-in-chief power in Article II of the Constitution." He went on to say that "if the president has the sole constitutional authority to sanction torture, and Congress has no power to interfere, it is unclear why the president should not also have unfettered authority to license genocide or other violations of fundamental human rights."
Mr. Koh added that "If a client asks a lawyer how to break the law and escape liability, the lawyer's ethical duty is to say no."
That was then. This is now.
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The former Yale Law dean who hounded the Bush administration over its interrogation policies is now in the business of justifying drone strikes.
.Now Mr. Koh is a legal adviser to Secretary of State Hillary Clinton. Now the same Mr. Koh who assailed Mr. Yoo for his broad view of presidential authority has offered up his own justifications for an expansive executive power. These include the argument that we're not really engaged in hostilities when we fire at Libya because the Libyans aren't firing back.
Folks are noticing. An op-ed this summer in the New York Times says it is as if Mr. Koh "has torn off his team jersey, mid-game, and put on the other's side's." A headline at the Volokh Conspiracy blog put it this way: "Is Harold Koh the Left's John Yoo?"
This is unfair . . . to Mr. Yoo. Whether or not one agrees with him, Mr. Yoo has been consistent in his views—before he served, while he served, and after he served. In sharp contrast, the old Harold Koh would have eviscerated the Harold Koh who now offers ludicrous redefinitions of "war" and "hostilities" so he can get the policy conclusion he wants.
Of course Mr. Koh has plenty of company in the U.S. Department of Rank Opportunism. There's Vice President Joe Biden, who once declared he would have Mr. Bush impeached if he attacked Iran without congressional approval. There's Attorney General Eric Holder, who attacked detention without trial at Guantanamo but defends it at Bagram. Nor do we hear much from the Yale Law clinic that, during Dean Koh's tenure, harassed Mr. Yoo with a lawsuit that is still making its way through the federal courts.
While we're at it, how about the great moral question? During President Bush's administration, three known terrorists were waterboarded, provoking much breast-beating. Today President Obama's drone strikes kill many untargeted people; even with the best of precautions, these must include at least some innocent people.
Surely killing people is worse than waterboarding them. That's especially true if they are guilty of no more than being in the wrong place at the wrong time. Even for the guilty, where are our suddenly silent ethicists on the uncomfortable question: Are we going for the kill precisely to avoid the legal thicket that Mr. Koh helped create with regard to detention and interrogation?
For trying to define what was and what was not permitted under relevant domestic and international laws, Mr. Yoo's writings were labeled the "torture memos." In a March 2010 speech to the American Society of International Law, Mr. Koh did the same with the drone strikes. Should this be remembered as the "execution speech"?
As it happens, drone strikes and other Obama war decisions can be legally and morally justified. The problem, however, is that they are hard to justify based on the principles Mr. Koh so loudly advanced before he joined the Obama administration. The legal contortions Mr. Koh introduces in his defenses today as much as admit that.
It is eminently possible that a war might look one way from Yale and another way from Foggy Bottom. A public servant facing that reality has two honorable choices. If he found himself embracing authority he had once denounced others for defending, he would apologize to them. If he still believed his original positions, he would resign.
An honest man might at least acknowledge the contradiction.
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By DAVID B. RIVKIN, JR. And CHARLES D. STIMSON
Call it the triumph of ideology over national interest and honor. Having dithered for nearly three years, the Obama administration has only a few weeks to bring to justice a Hezbollah terrorist who slaughtered five U.S. soldiers in Iraq in 2007. Unfortunately, it appears more likely that Ali Musa Daqduq will instead be transferred to Iran, to a hero's welcome.
In the early evening of Jan. 20, 2007, in the city of Karbala, south of Baghdad, five black SUVs approached the location of a regular meeting between U.S. and Iraqi military officers. Inside the vehicles, which mimicked U.S. transports (to avoid heightened scrutiny), were a dozen individuals dressed in U.S. military uniforms and bearing U.S. weapons. Their drivers spoke English.
Upon reaching their target, the occupants opened fire on the Americans. One U.S. soldier was killed on the spot. Four others were kidnapped, tortured and executed.
The mastermind of this brutal attack? Ali Musa Daqduq, a Lebanese national and Hezbollah commander. U.S. forces captured him in March 2007, and, in interrogation, he allegedly provided a wealth of information on Iran's role in fomenting, training and arming Iraqi insurgents of all stripes.
With U.S. troops set to exit Iraq at the end of December, all detainees in American custody there have been transferred to the Iraqis except for Daqduq. He is set to be turned over in a matter of weeks. Based on past experience with released detainees who were in Iranian employ, U.S. officials know that Daqduq will promptly re-emerge in Iran, shaking hands with dignitaries and leading parades, before rejoining his Hezbollah colleagues.
Enlarge Image
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Multinational Forces Iraq provided the photo of Ali Musa Daqduq during the briefing in July 2007.
.This outcome would be an insult to the American servicemen who have lost many comrades to insurgents such as Daqduq, who consistently failed to comply with the laws of war. Indeed, the Iraq war is the first conflict in modern history where the U.S.—having complied with the laws of war by promptly prosecuting American troops believed to have violated those laws—did not bring to justice a single one of the hundreds of captured enemy combatants who have killed Iraqi civilians, American soldiers and contractors. Impunity for war criminals debases the laws of war, violates our international legal obligations, and is inconsistent with American values.
We have already failed to stop Iran's nuclear-weapons program. We have also failed to punish Tehran for facilitating the deaths of American soldiers, or for plotting to assassinate the Saudi ambassador to Washington. Allowing Daqduq to slip through U.S. hands would further reinforce the impression of American impotence. That will have serious repercussions, measured in diplomatic defeats and lost lives.
There is an obvious solution: Transfer Daqduq from Iraq to Guantanamo Bay to be tried by a military commission there. But this is where the Obama administration's rigid ideology comes into play—beginning with flawed, self-defeating legalistic arguments.
A successful prosecution of Daqduq would be relatively easy. He killed American soldiers and, as an unprivileged belligerent, has no combatant immunity. Yet the administration purports to be troubled by our lack of an extradition treaty with Iraq. It also points out that the Iraqis have refused to accord the U.S. legal custody of Daqduq, although the U.S. has him in physical custody. The Iraqis, of course, are being pressured by the Iranians not to accommodate this legal-custody request.
Yet we don't need an extradition treaty with Iraq to transfer Daqduq, a Lebanese citizen captured by American forces in a war zone. Since his capture occurred when the U.S. and other coalition members were the occupying power in Iraq, there is ample basis in existing international law for the American exercise of legal jurisdiction over him.
A more serious obstacle is the administration's policy of eschewing military tribunals. Earlier this year, the administration considered bringing Daqduq into the U.S. to face trial in a civilian court. In response, six Republican senators wrote President Obama, warning against trying Daqduq in federal court, and urging the president to refer him to a military commission.
The administration briefly flirted with the idea of a military commission, perhaps in Charleston, S.C. or at Fort Leavenworth, Kan. That idea seems to have been dropped after a Nov. 8 Senate Judiciary Committee hearing where Republican Sen. Lindsey Graham told Attorney General Eric Holder that if the administration were to bring Daqduq to the U.S. for a civilian or military trial, "all hell would break loose."
The administration believes that bringing anyone new, even high-value detainees, to Guantanamo is inconsistent with the goal of eventually closing the facility. This proposition is absurd, and not only because that facility remains vital and relevant to this day. It raises the question of whether administration's detention policy is actually shaped by a crass political calculus of not antagonizing its liberal base in advance of what promises to be a difficult 2012 election.
The administration should press the Maliki government in Baghdad harder to allow the U.S. to maintain custody of Daqduq following the withdrawal of U.S. forces from Iraq. If the Iraqis still refuse, the administration should unilaterally transfer Daqduq to Guantanamo to face justice.
While the Maliki government may protest publicly, it will rejoice privately, since Daqduq's rendition would demonstrate Washington's resolve in the face of Tehran's pressure. Allowing him to go unpunished is both inexcusable and dangerous.
Mr. Rivkin served in the Justice Department during the Reagan and George H.W. Bush administrations. Mr. Stimson, senior legal fellow at the Heritage Foundation, was a deputy assistant secretary for detainee affairs at the Defense Department.
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Long piece in the NY Times
http://www.nytimes.com/2011/12/14/world/middleeast/beirut-bank-seen-as-a-hub-of-hezbollahs-financing.html?_r=1&nl=todaysheadlines&emc=tha2
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By ADAM ENTOUS And SIOBHAN GORMAN
Tensions are quietly increasing between the White House and some congressional leaders over access to sensitive information about the government's use of drones in Pakistan and Yemen, officials said.
The White House has brushed aside requests for information from lawmakers, who argue that the strikes, carried out secretly by the Central Intelligence Agency and the military's Joint Special Operations Command, have broad implications for U.S. policy but don't receive adequate oversight.
Some current and former administration, military and congressional officials point to what they see as significant oversight gaps, in part because few lawmakers have full access to information about the drone strikes.
Lawmakers on Congress's intelligence committees are privy to information about all CIA and military-intelligence operations, but members of at least two other panels want insight on the drone program.
Compounding the dispute: Lawmakers who are briefed on classified information are legally constrained from raising their concerns publicly. Current and former officials say the White House wants to keep a tight hold on classified information to avoid unauthorized disclosures.
The demand for lawmakers outside the intelligence committees to have access to details on the covert drone program, said one U.S. official, "just doesn't hold water."
Officials with the House and Senate Intelligence committees say they provide rigorous oversight of the CIA's covert-action programs. Other lawmakers can make requests to the committees for information on classified programs, these officials add.
Concerns about oversight prompted Democratic and Republican leaders earlier this month to slip language into newly approved defense legislation requiring the Pentagon to provide the armed services committees with quarterly updates on "counterterrorism operations and related activities involving special operations forces," officials said.
The tensions come as groups such as Human Rights Watch step up pressure on the White House to explain its legal justification for killing suspected militants, including American citizens, without due process. The disputes over the program have grown as improved technology has made drone operations easier to conduct—and thus more frequent.
CIA drones have killed more than 1,500 suspected militants on Pakistani soil since President Barack Obama took office in 2009, becoming the most lethal program in the spy agency's history.
In Yemen, the CIA and the military's Joint Special Operations Command run parallel targeted-killing programs using drones and manned aircraft.
A drone strike in September killed American-born cleric Anwar al-Awlaki, an outspoken proponent of attacks on the U.S. Mr. Awlaki's son, also an American, was accidently killed in a second drone strike in Yemen in October, officials say.
While few U.S. lawmakers question the effectiveness of the targeted killing campaigns, some top lawmakers complain about what they see as excessive White House secrecy about how targets are chosen and how the administration justified the killings, particularly of American citizens.
Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, has been publicly and privately pressing the Justice Department to let his committee review the secret memorandum prepared by Justice Department lawyers that endorsed the legality of killing U.S. citizens abroad.
Similar qualms have come from members of the House and Senate armed services committees, who have also sought more information in particular about the CIA's drone program (they have some oversight over the drones run by the Defense Department).
After the CIA launches a drone strike, the intelligence committees receive a notification telephone call almost immediately, which is followed by a secure fax with the details of the strike, according to government officials. There are also monthly meetings at the CIA's Langley, Va. headquarters with congressional staff to review the program and classified briefings or hearings on Capitol Hill at least every three months.
Administration officials say the drone programs run by the CIA and Joint Special Operations Command are carefully monitored by top officials at both agencies and by the White House National Security Council.
John Bellinger, a top legal adviser for the State Department during the Bush administration, said the White House needs to start thinking about a legal framework that would define acceptable practices. He pointed to the risk that other countries will start using drones in ways that the U.S. may find objectionable.
"If Russia starts using drones to go after terrorists, will the U.S. look like we have a double standard if we criticize them?" Mr. Bellinger asked.
—Julian E. Barnes and Evan Perez contributed to this article.
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What is a human right?
Consider the case of a Romanian man named Ionescu—not the absurdist playwright himself, but very much in the master's tradition—who once took the 2,000-mile bus ride from Bucharest to Madrid. His seat did not fully recline. The bus company's advertising had promised it would.
So Mr. Ionescu sued. For €90.
First he sued his way through the Romanian judiciary, including the High Court. After his appeals failed at home, he went to the European Court of Human Rights (ECHR) in Strasbourg, France, insisting that the Romanian courts had denied him a right to a fair hearing.
The complaint was lodged in October 2004. It was rejected, by a seven-judge panel, in June 2010. Mr. Ionescu did not get his €90, though what his case cost European taxpayers the ECHR did not say. The court did note, however, that the suit was "[not] manifestly ill-founded or an abuse of the right of application." In other words, the ECHR thought the case was a close call.
It would be nice if the Ionescu case were just another piece of Eurosilliness of the likes British tabloids love to lampoon. Closer to the truth is that it's a comic emblem of a tragic decline. One after another, public institutions and private organizations devoted to the defense of human rights are bringing those rights into wholesale disrepute.
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Abu Qatada
.Take the ECHR, which grandly claims to "protect the rights of 800 million people in 47 states." In 1999, the court agreed to consider 8,400 applications. A decade later it was dealing with 57,200 applications, plus an additional backlog of 119,300. The court says that 90% of those cases are inadmissible and has taken steps to deal with it.
But the explosion in cases begs the question of why so many people are now turning to the court. In an important and overlooked speech last Wednesday, British Prime Minister David Cameron offered an answer: The court, he warned, was in the process of turning itself into an immigration tribunal, a small-claims court and a "court of fourth instance"—a kind of super-Supreme Court for petitioners who have exhausted their options at the national level.
Call it the legal corollary of Say's Law: Supply creates its own demand. The more "human rights" there are, the more human rights cases there will be.
Is that a problem? It is, when the cases are spurious. It is, too, when a court's definition of human rights routinely contradicts the views of ordinary people, democratic parliaments, and duly constituted national courts.
The latest Exhibit A in ECHR over-reach is its Jan. 16 ruling in the case of Abu Qatada, a radical Islamist cleric born in Bethlehem, based in London, and wanted on terrorism-related charges in Algeria, Jordan, the U.S., Belgium, Spain, France and Italy. The U.K. government (which has never charged Mr. Qatada with a crime though it has repeatedly detained him), wants to deport him to Jordan and has negotiated a "no torture" agreement with Amman. Britain's Law Lords blessed the deportation in 2009.
But not the Strasbourg court. It stopped the deportation on the grounds that a prospective conviction of Mr. Qatada in a Jordanian court might be based on evidence extracted by torture from a co-defendant. A deportation, the court ruled, would "legitimize the torture of witnesses and suspects."
Maybe that's high-minded. But the upshot for Britain is that Mr. Qatada is a free man, getting £1,000 a month in welfare checks. Not bad for a guy who arrived in the U.K. on a fake passport, won asylum on grounds that he faced religious persecution in Jordan (while practicing it in his sermons), and then became a tutor and inspiration to the likes of Mohammad Atta, Richard Reid, and Abu Musab al-Zarqawi.
Nor is Mr. Qatada's case an aberration. A U.K. government report released last year found that in 2010 some 200 foreign criminals avoided deportation by citing Article 8 of the European Convention on Human Rights, which guarantees the "right to family and private life"—the latter defined as "studies, employment, friendships and sexuality." Altogether, 3,775 former foreign national prisoners remained in Britain despite efforts by the U.K. Border Agency to send them home.
In his speech, Mr. Cameron put his finger on the effects of all this. "For too many people, the very concept of rights is in danger of slipping from something noble to something discredited," he said. "It has a corrosive effect on people's support for human rights."
That's right. And it's equally corrosive when Amnesty International makes a poster child of Moazzam Begg, a former Guantanamo Bay prisoner and suspected al Qaeda recruiter, or when Human Rights Watch becomes the leading anti-Israel propagandist of the present day—to the point of being publicly denounced by its founder. Human rights were once a pillar of democratic decency. The people who now usually claim to speak for those rights have systematically transformed them into a weapon against democracies and a shield for terrorists.
What is happening to human rights today is not a first: Other Western ideals—democracy, equality, freedom—have all been hijacked by the enemies of democracy, equality and freedom. How do you mount a rescue attempt for human rights? That has to be a task worthy of some philanthropist's largess.
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http://online.wsj.com/article/SB10001424052970203370604577265881451325666.html?mod=opinion_newsreel
'We are a nation at war," declared the Attorney General of the United States. "And, in this war, we face a nimble and determined enemy that cannot be underestimated. . . . Like scores of attorneys and agents at the Justice Department, I go to sleep each night thinking of how best to keep our people safe." We're not waxing nostalgic for Michael Mukasey. Those were the words of Eric Holder, the current AG, in a speech Monday at Chicago's Northwestern University School of Law.
Mr. Holder came to office three years ago as part of an Administration determined to repudiate its predecessor's approach to the war on terror. He was particularly determined to bring top al Qaeda figures including Khalid Sheikh Mohammed to New York for a civilian trial. Last spring he bowed to political reality and acknowledged that wouldn't happen.
In Monday's speech, he went further. He outlined a legal strategy notable mostly for its continuity with that of the Bush Administration. He defended the use of military commissions for war-crimes trials, noting that they provide for "fundamental due process and other protections," and he declared that "we should not deprive ourselves of any tool in our fight against al Qaeda."
.He also noted that "our government has the clear authority—and, I would argue, the responsibility—to defend the United States through the appropriate and lawful use of lethal force," an authority that is "not limited to the battlefields in Afghanistan."
Most important, he defended the targeted killing of al Qaeda leaders, including U.S. citizens like Anwar al-Awlaki, killed in Yemen last September: "Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it's clear that United States citizenship alone does not make such individuals immune from being targeted."
He added that while citizens have a right to due process, that doesn't mean judges have to review battlefield decisions. "Where national security operations are at stake, due process takes into account the realities of combat," he said. "The Constitution guarantees due process, not judicial process." This is a welcome endorsement of executive power in war-fighting.
Mr. Holder's speech has drawn complaints from the anti-antiterror left, albeit more muted than they were during the Bush years. Being responsible for the nation's security has a way of making one's views more realistic. The vilified members of the Bush Administration can take a measure of vindication in Mr. Holder's epiphany.
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Nice to be vindicated by history.
Remember, when the left claims a grave moral position, it's just empty political B.S.
"Gitmo is a stain on American honor!"
"Oh wait, nevermind". :roll:
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Jack Goldsmith makes excellent points.
http://www.foreignpolicy.com/articles/2012/03/19/fire_when_ready
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http://www.radicalislam.org/analysis/21st-century-trojan-horse-sharia-rolls-american-education-court-systems?utm_source=MadMimi&utm_medium=email&utm_content=+21st+Century+Trojan+Horse+in+U_S_&utm_campaign=Radical+Islam+%2363&utm_term=MORE___
21st Century Trojan Horse: Sharia Rolls into American Education, Court Systems
by: Radical Islam Staff
The “Islamophic” card continues to be played in trump by Muslim organizations pushing their agenda in the American educational and legal systems. This time, a public interest law center is under attack by Islamic news agencies for pointing out that Muslim students are being given religious privileges not enjoyed by other religions in U.S. public schools.
In recent days, the Ahlul Bayt News Agency and the International Islamic News Agency, among others, have attacked the Thomas More Law Center, one of the first advocacy groups in the nation to take legal action against the double standard in public schools that favors Islam over other religions.
While the news agencies bemoaned the lack of facilities and, hence, the “unfair treatment” of Muslims in public schools, Richard Thompson, president and chief counsel at the law center, said, “What (school officials) are doing … is to give Muslim students religious benefits that they do not give any other religion right now.”
“Islam is more than a religion,” continued Thompson (right). “It is a political ideology that regulates every aspect of human existence, and calls for the Islamic domination of the world. Since radical Muslims know they can never defeat our military on the battlefield, they devised the strategy of internal subversion.”
The founder of the Council of American Islamic Relations (CAIR), Omar Ahmad, said to a group of American Muslims in 1998, “Islam isn’t in America to be equal to any other faith, but to become dominant. The Quran should be the highest authority in America and Islam the only accepted religion on earth”
Omar Ahmad, (left), founder of CAIR and an officer of the Islamic Association for Palestine (IAP) was captured on an FBI surveillance tape at a Hamas meeting in 1993 explaining that the IAP could not, for political reasons, admit its support for Hamas. He then discussed how the Hamas agenda could be cloaked and advanced. Ahmad’s airfare and hotel bills for this meeting were paid for by the Holy Land Foundation.
“Like the ancient Trojan Horse welcomed within the city’s gates, Islam has entered America disguised as a religion," Thompson continued. "But its ultimate objective is political: Destroy America and establish an Islamic nation under Sharia Law. So while America sleeps, they are awake and subverting our government, as well as our public schools and universities. And we will not be deterred from our efforts to stop them.”
In 2002, the center filed a federal lawsuit against the Byron Union School District in California for a three-week course in the Islamic faith for its seventh-grade students which used the workbook, Islam, A simulation of Islamic history and culture.
The center contended that the course was nothing short of religious indoctrination, prohibited by the Establishment Clause of the First Amendment to the United States Constitution.
The 12-year old students were told:
•“From the beginning you and your classmates will become Muslim”
•Dress up as a Muslim and try to be involved to guarantee an excellent grade.
•Pick Islamic names and wear them around your neck as ID tags.
•Read the fatiha, the opening chapter in the Koran and recited by Muslims at every daily prayer.
•Play a dice game called Jihad by declaring a jihad against another group.
•Jihad is a struggle by Muslims against oppression.
•Complete the phrase required for conversion to Islam.
•Complete the Five Pillars of the Islamic Faith.
•Analyze certain verses from the Koran.
The Ninth Circuit Court of Appeals, in a ruling marked “Not for Publication,” decided that the Islamic program was not “overt religious exercises” that violated the Establishment Clause.
The Establishment Clause states that “Congress shall make no law respecting an establishment of religion. It is generally interpreted to forbid the establishment of a national religion for the United States as well as a preference by the U.S. government of one religion over another.
The Establishment Clause guarantees Americans a separation of religion and state but allows the government to accommodate the free exercise of religion. However, because the court forbid the publication of its ruling, it was not possible for the law center to use the case as a precedent to establish similar classes to educate students about other religions.
The law center reports that the kindergarten through grade 12 textbooks contain “sugarcoated versions of Islam promoted by the Council on Islamic Education.” The textbooks fail to mention kidnappings, beheadings, slave trading, savage murder, persecution of non-Muslims and the repression of women common in Islamic countries that follow Islamic (sharia) law.
In another case, the Poway School District ordered math teacher Bradley Johnson, to take down banners (which he had been displaying for 25 years) which said “In God We Trust” (a phrase found on all U.S. paper money), and “One Nation Under God” (a phrase from the U.S. Pledge of Allegiance) because they promoted a Judeo-Christian message and might offend a Muslim student.
The case was appealed and in September, 2011, the U.S. 9th Circuit Court ruled that the banners, because of their large size, were promoting a “particular viewpoint.” The three-judge panel argued that an employer – in this case Johnson’s principal and school board -- has a right to place limits on employees’ speech.
Other large displays in the same school were allowed, including a 40-foot string of Tibetan prayer flags with a poster of Hindu leader Mahatma Gandhi’s “7 Social Sins,” a poster of Muslim leader Malcolm X and a poster of the Dali Lama, a Buddhist religious leader.
The law center, which does not charge for its legal services, decided to take the case to the U.S. Supreme Court, where it is pending.
Law center head Thompson says the attack on him is in response to comments he made about Muslims coercing public schools into giving Islamic students special accommodations that are not afforded to Christian students, which he sees as an insinuation of Islam into the American public school system.
"You have this double standard where schools will bend over backwards to accommodate Islamic students and the Islamic message under the guise of multiculturalism or diversity," he explained. "They won't apply the Establishment Clause rules that they apply to Christian symbols, and Christians are being relegated to second-class citizens."
Despite the attacks on him, Thompson says the law center will not be backing down. "You're going to get flack if you're on target, and I think we're on target," Thompson said. "There is that double standard, and the Thomas More Law Center is going to continue to voice their concern and do what they can do right this wrong that's going on."
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http://www.foreignpolicy.com/articles/2012/03/26/blurred_lines?page=full
When he was at the helm of the Central Intelligence Agency, Michael Hayden was fond of comparing the laws that limit agency operations to the white sidelines of a football field. CIA agents should operate so close to legal boundaries, he remarked, that they get "chalk on their cleats."
Unfortunately, those chalk lines today are too faint for either intelligence officers or the public to see. Although Congress instituted intelligence reform in 2004, and a hallmark of President Barack Obama's first term has been his aggressive approach to fighting terrorism, there has never been a real debate in Congress or in the public square about the intersection of our values and our requirements for gathering intelligence.
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http://www.foreignpolicy.com/articles/2012/03/26/blurred_lines?page=full
When he was at the helm of the Central Intelligence Agency, Michael Hayden was fond of comparing the laws that limit agency operations to the white sidelines of a football field. CIA agents should operate so close to legal boundaries, he remarked, that they get "chalk on their cleats."
Unfortunately, those chalk lines today are too faint for either intelligence officers or the public to see. Although Congress instituted intelligence reform in 2004, and a hallmark of President Barack Obama's first term has been his aggressive approach to fighting terrorism, there has never been a real debate in Congress or in the public square about the intersection of our values and our requirements for gathering intelligence.
**Jane Harmon is an idiot and this FP article was nothing more than DNC talking points. Did I mention that Jane Harmon is an idiot?
There are already clear legal standards covering law enforcement intelligence, but one would actually have to know something about the topic to know that.
2. The blurred line between domestic and foreign intelligence.
After 9/11, the law enforcement community -- from state and local police to federal agencies and even a few private security contractors -- understandably sought to expand their capabilities to thwart terror attacks. A few police departments in this country began to operate far outside traditional jurisdictional borders, even sending officers to the Middle East.
It is true that state and local police -- our cops on the beat -- are more likely to identify and disrupt the next terror plot than a bureaucrat in Washington. And there have been many successes, including the plot uncovered in 2005 to target synagogues and military recruiting offices in my former congressional district in California. But there needs to be a clear framework for law enforcement to work within, and that conversation needs to take place now.
While few disagree on the need for such a discussion, the tortured history of the Violent Radicalization and Homegrown Terrorism Prevention Act -- legislation aimed at better understanding the "tipping point" between using constitutionally protected violent language and committing an illegal violent act -- illustrates interesting obstacles still in place. That act passed the House twice -- nearly unanimously each time. It was deliberately narrow in scope and would have done nothing more than create a nonpartisan commission to study radicalization and homegrown terrorism and then report to Congress. But certain privacy and civil liberties groups (many of which had been in the room when the bill was being drafted) attacked the act and those who voted for it, arguing it was a slippery slope and killing the bill before it ever came to a vote in the Senate. And so the legislative branch proceeds, without tools.
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**Did I mention that Jane Harmon is an idiot?
http://www.iir.com/28CFR_Program/28CFR_Resources
Federal Guideline and Accompanying Documents
The 28 Code of Federal Regulations (CFR) Part 23 is a guideline for law enforcement agencies. It contains implementing standards for operating federally funded multijurisdictional criminal intelligence systems. It applies to systems operating through federal funding under Title I of the Omnibus Crime Control and Safe Streets Act of 1968, as amended.
•28 CFR Part 23 [HTML file] [PDF file]
Provides a complete text of 28 CFR Part 23.
•1993 Revision and Commentary [HTML file] [PDF file]
Provides a complete text of the revision to 28 CFR Part 23 and includes a commentary published in September 1993 by the Office of Justice Programs.
•Policy Clarification [HTML file] [PDF file]
Provides a complete text of a policy clarification for 28 CFR Part 23 published in December 1998 by the Bureau of Justice Assistance, Office of Justice Programs.
Additional Information
Additional information for use in ensuring that your criminal intelligence system complies with 28 CFR Part 23 guidelines includes:
•Terms Defined in 28 CFR Part 23 [PDF file]
•Remote Terminal Access System Protection Measures [PDF file]
•Layman's Guide to 28 CFR Part 23 [PDF file]
•System Data Fields to Assist in Complying With 28 CFR Part 23 Guidelines [PDF file]
Sample Documents
The following are examples of documents that have been used by other agencies for their criminal intelligence systems.
•Sample Operating Policies and Procedures [PDF file]
•Sample Participation Agreement [PDF file]
•Sample Memorandum of Understanding [PDF file]
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In my third run for US Congress, I was defeated by Washington lawyer Jane Harman in 1992 in California's 36th District.
The 32d was newly drawn in the aftermath of the 1990 census and the campaign was closely watched outside the district as a bellweather district. Her campaign was greatly enabled by her August-December marriage to Dick Harmon of Harmon Electronics. (He got VERY mad at me when I genuinely mistook her for his daughter, but I digress , , ,) Thus she was about to "loan" herself some $900,000. Thus, upon her election, the money from campaign donors who helped her pay off her campaign "debts" were able to put $900,000 directly into her own pocket.
She was known as GI Jane for her dependable support of high tech defense spending, much of which was taking place within our district. She served on the House Intel committee IIRC, so she certainly was more than a little exposed to these issues. She also authored the idiot piece of legislation outlawing the traditional light bulb.
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Since there are clear lines, they must have been followed. Therefore we can deduce that all of things that you dislike about Obama never happened. :lol:
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Since there are clear lines, they must have been followed. Therefore we can deduce that all of things that dislike about Obama never happened. :lol:
Huh?
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Jack Goldsmith on The Daily Show. Worth a look...
http://www.thedailyshow.com/watch/wed-april-4-2012/jack-goldsmith
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Jack Goldsmith on The Daily Show. Worth a look...
http://www.thedailyshow.com/watch/wed-april-4-2012/jack-goldsmith
Interesting.
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How baseless was the persecution of John Yoo by the white-shoe legal elite, which peddled the claims of a terrorist in order to harass the Bush Administration lawyer for his national-security views? So baseless that even the Ninth Circuit Court of Appeals has thrown the case out.
On Wednesday a unanimous three-judge panel in the famously liberal appeals court dismissed the civil lawsuit brought by Jose Padilla, whose lawyers have besieged former Bush officials since his criminal conviction in a plot to detonate a dirty bomb on American soil. From his prison cell, Padilla argues that his constitutional rights were violated when he was detained as an enemy combatant from 2002 to 2006.
The ruling vindicates the principle that government officials are immune from private litigation for their national-security decisions. The law has long held that executive branch officials can't be sued for other than criminal acts so they can carry out their duties in the best interests of the country without threat of personal liability.
Imagine a world in which trial lawyers could subject officials with the highest security clearances to discovery via subpoena and potentially expose intelligence sources and methods. The Supreme Court affirmed this principle as recently as 2011, and the Fourth Circuit dismissed Padilla's identical claims against Donald Rumsfeld and other Bush Cabinet members earlier this year as totally frivolous.
Alas, the Ninth Circuit couldn't be that honest. Padilla and his legal pit crew from the ACLU and a left-wing lawsuit shop affiliated with Yale Law School were trying to convince the courts to invent a new private right of action on the basis of the Supreme Court's 1971 Bivens decision. Except that decision says that constitutional rights that are allegedly violated must be "clearly established."
Judge Raymond C. Fisher writes that "We assume without deciding that Padilla's alleged treatment rose to the level of torture," but also that the rights of military detainees were not legally clear and Padilla's treatment was not "beyond debate" at the time he was held in a military brig. In other words, the lawsuit is frivolous. But the judges find having to rule this way so politically distasteful that they can't let the moment pass without scattering a load of, er, buckshot.
Mr. Fisher also indulges his inner op-ed writer by offering gratuitous slurs against Mr. Yoo's professionalism. He rolls out a reference to a now-discredited draft of a Justice Department Office of Professional Responsibility ethics investigation, without mentioning that it was later reversed. Special discredit too for the Obama Justice Department, which took away Mr. Yoo's government lawyers and made him get private counsel.
The ruling is nonetheless a watershed for repudiating sham tort claims whose goal is to intimidate—and perhaps bankrupt—anyone who dares to treat terrorists differently from shoplifters. In a better world, Padilla's pals at the ACLU and the Allard K. Lowenstein International Human Rights Clinic would be hit with sanctions and a bill for Mr. Yoo's costs.
MARC: Trivia regarding the name Allard Lowenstein appearing in the last sentence. He was the man who persuaded Sen. Eugene McCarthy to challenge President Lyndon Johnson for the Dem. nomination in 1968; he became McCarthy's campaign manager. McCarthy's strong showing in the New Hampshire primary is what persuaded LBJ to not run for re-election and Sen. Robert Kennedy to run. It was in the context of the ensuing McCarthy vs. RFK vs. VP Hubert Humphrey campaign that my mother and a woman named Bella Abzug (later to be a Congressswoman from the west side of Manhattan) formed a committee within the local Dem party supporting Sen. McCarthy. Many meetings were held at our house and in this context (I would be 16 at the time) I met many famous political people-- including Allard Lowenstein.
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Hours before Congress reopened a contentious debate on terrorist detention policy, a judge in Manhattan on Wednesday night weighed in with her own politically explosive opinion. The decision will be overturned on appeal, but its reasoning needs to be deconstructed so it doesn't do more harm in the meantime.
Ruling in Hedges v. Obama, federal Judge Katherine Forrest struck down a provision of last year's defense authorization act on the arrest, imprisonment and interrogation of terrorists. Noam Chomsky, Daniel Ellsberg and several left-wing journalists filed the suit in January, charging that the detention law violates their First Amendment rights. Christopher Hedges, a former New York Times reporter, argued that his contacts with known terrorists overseas could land him in a military brig and thus harm his right to report and publish.
It's almost worth the price of admission to hear the Obama Administration respond that these claims by its journalistic allies are "fanciful, paranoid, or otherwise unreasonable." But that didn't impress Judge Forrest—appointed by President Obama last year—who ruled the law would have a "chilling impact on First Amendment rights."
The case should have been thrown out on lack of standing alone. The detention law is an organizational statute, in which Congress codifies certain powers for the executive branch. Judge Forrest insisted on treating it as a common criminal statute, yet it doesn't proscribe any individual behavior and the journalists haven't been harmed. A journalist has no more standing to block the law than he would have to block Congress from financing the Federal Reserve.
To be named an enemy combatant under the detention statute, you have be engaged in illegal warfare against the United States. More precisely, under the law you have to be "A person who was a part of or substantially supported al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."
Mr. Hedges may loathe America, but he can't be arrested for that unless he joins or abets the other side.
Judge Forrest claimed the law didn't "define precisely what 'direct' or 'substantial' support means." But as a legal and practical matter, the definition has been established by successive post-9/11 Presidents and the courts, particularly at the D.C. Circuit Court of Appeals, which has repeatedly approved indefinite terrorist detentions.
The legal claim also collapses on grounds of what lawyers call "redressability"—whether the plaintiffs can get relief. Even if the detention statute were tossed out, a genuine enemy combatant can still be detained under either the post-9/11 authorization to use military force or the President's war powers. Judge Forrest says the law violates due process, but even after the various challenges during the Bush years, the Supreme Court has only granted to enemy combatants the right to habeas corpus—a legal hearing.
This ruling would be ignorable as an especially obtuse exercise in judicial activism if not for its timing. The House of Representatives is debating an amendment to the 2013 defense bill that would bar any enemy combatant captured on U.S. soil—even the next Osama bin Laden—from military detention. And its tea party and left-wing proponents seized on Judge Forrest's decision as an argument for their amendment. Let's hope that one bad ruling doesn't lead to bad law that damages U.S. national security.
A version of this article appeared May 18, 2012, on page A12 in the U.S. edition of The Wall Street Journal, with the headline: Detained and Confused.
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http://www.lawfareblog.com/
Run by some heavy hitters in the field.
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http://www.nybooks.com/articles/archives/2012/jul/12/obama-and-terror-hovering-questions/?pagination=false
This is a book review, by David Cole, of two recent books about the presidency during the war on terror. While I think he gets the Goldsmith book wrong (and I HIGHLY recommend it), there are interesting parts in the review.
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It's a long piece and I have not read all of it yet, but this caught my attention:
"The primary blame, however, is Congress’s. Playing shortsighted domestic politics, Congress has refused to allow any Guantánamo detainees to be brought to the United States".
No, the Congress has correctly stood for preventing turning the overseas war with Islamic Fascism into a series of criminal acts whose actors are entitled to US Constitutional protections.
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It's a long piece and I have not read all of it yet, but this caught my attention:
"The primary blame, however, is Congress’s. Playing shortsighted domestic politics, Congress has refused to allow any Guantánamo detainees to be brought to the United States".
No, the Congress has correctly stood for preventing turning the overseas war with Islamic Fascism into a series of criminal acts whose actors are entitled to US Constitutional protections.
That WAS interesting. The surrounding discussion about the Chinese Ulghars is interesting too.
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Still, doesn't the larger point still stand? This is a war, what are soldiers supposed to do? Read Miranda rights? Does a captured enemy combatant get to do pre-trial discovery? Does he get to confront witnesses? Must US reveal intel sources?
What legalistic nonsense! Yet the author protrays Congress resisting it as simple political gamesmanship. C'mon!
PS: I'm not surprised to see Harold Koh (whom I've mentioned various times in the last several years here) in the mix on this.
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I think in some ways you are conflating two issues. The idea of the soldier reading Miranda rights is different from the role that Congress plays.
As I said, the review is not good throughout, but the discussion (or rather questions raised) surrounding drones was worthwhile to spend a moment contemplating.
And, it served as a good opportunity to recommend the good book by Goldsmith, although I think Cole misunderstands, or misrepresents, the book.
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I don't see (yet?) where I am conflating.
"Playing shortsighted domestic politics, Congress has refused to allow any Guantánamo detainees to be brought to the United States".
Isn't the point (or one of the major ones at any rate) that doing so would put them in the purview of the US Constitution's criminal law rights? Isn't this what we saw with some of the cases where the enemy was caught here in the US. As soon as he was told of his right to remain silent and to have a free lawyer, he "lawyered up". Why on earth would we bring enemy combatants here, thus triggering the change in legal status from "enemy" to "the accused"? Why the author's crack about "shortsighted domestic politics"?
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BTW I've mentioned Harold Koh previously on a number of occasions.
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About once a month, the Central Intelligence Agency sends a fax to a general at Pakistan's intelligence service outlining broad areas where the U.S. intends to conduct strikes with drone aircraft, according to U.S. officials. The Pakistanis, who in public oppose the program, don't respond. On this basis, plus the fact that Pakistan continues to clear airspace in the targeted areas, the U.S. government concludes it has tacit consent to conduct strikes within the borders of a sovereign nation, according to officials familiar with the program.
Representatives of the White House's National Security Council and CIA declined to discuss Pakistani consent, saying such information is classified. In public speeches, Obama administration officials have portrayed the U.S.'s use of drones to kill wanted militants around the world as being on firm legal ground. In those speeches, officials stopped short of directly discussing the CIA's drone program in Pakistan because the operations are covert.
Now, the rationale used by the administration, interpreting Pakistan's acquiescence as a green light, has set off alarms among some administration legal officials. In particular, lawyers at the State Department, including top legal adviser Harold Koh, believe this rationale veers near the edge of what can be considered permission, though they still think the program is legal, officials say.
Two senior administration officials described the approach as interpreting Pakistan's silence as a "yes." One dubbed the U.S. approach "cowboy behavior."
In a reflection of the program's long-term legal uncertainty and precedent-setting nature, a group of lawyers in the administration known as "the council of counsels" is trying to develop a more sustainable framework for how governments should use such weapons. The effort is designed to fend off legal challenges at home as well as to ease allies' concerns about increasing legal scrutiny from civil-liberties groups and others. The White House also is worried about setting precedents for other countries, including Russia or China, that might conduct targeted killings as such weapons proliferate in the future, officials say.
Because there is little precedent for the classified U.S. drone program, international law doesn't speak directly to how it might operate. That makes the question of securing consent all the more critical, legal specialists say.
In public, Pakistan has repeatedly expressed opposition to the drone program, and about 10 months ago closed the CIA's only drone base in the country. In private, some Pakistani officials say they don't consider their actions equivalent to providing consent. They say Pakistan has considered shooting down a drone to reassert control over the country's airspace but shelved the idea as needlessly provocative.
Pakistan also has considered challenging the legality of the program at the United Nations.
"No country and no people have suffered more in the epic struggle against terrorism than Pakistan," Pakistan President Asif Ali Zardari told the U.N. General Assembly Tuesday. "Drone strikes and civilian casualties on our territory add to the complexity of our battle for hearts and minds through this epic struggle."
A former Pakistani official who remains close to the program said Pakistan believes the CIA continues to send notifications for the sole purpose of giving it legal cover.
It is possible Pakistan is playing both sides. Ashley Deeks, a former State Department assistant legal adviser under Mr. Koh who is now at the University of Virginia, said a lack of a Pakistani response to U.S. notifications might be a way for Pakistan to meet seemingly contradictory goals—letting the CIA continue using its airspace but also distancing the government of Pakistan from the program, which is deeply unpopular among Pakistanis.
Legal experts say U.S. law gives the government broad latitude to pursue al Qaeda and its affiliates wherever they may be. A joint resolution of Congress after the Sept. 11, 2001, attacks authorized the president to use force against the planners of the attacks and those who harbor them. Then-President George W. Bush that month signed a classified order known as a "finding" authorizing covert action against al Qaeda.
Government consent provides the firmest legal footing, legal experts say. The U.S. has that in Yemen, whose government assists with U.S. strikes against an al Qaeda affiliate. In Somalia, the nominal government, which controls little territory, has welcomed U.S. military strikes against militants.
In an April speech, White House counterterrorism adviser John Brennan said the administration has concluded there is nothing in international law barring the U.S. from using lethal force against a threat to the U.S., despite the absence of a declared war, provided the country involved consents or is unable or unwilling to take action against the threat.
On the international stage, matters are less clear-cut. The unwilling-or-unable doctrine, which was first publicly stated by the George W. Bush administration and has been affirmed by the Obama administration, remains open to challenge abroad, legal experts say. Conducting drone strikes in a country against its will could be seen as an act of war.
Benjamin Wittes, a senior fellow at the Brookings Institution, said the U.S. drone approach in Pakistan is getting closer to the edge. "It doesn't mean it is illegal, but you are at the margins of what can reasonably be construed as consent," he said.
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Kenneth Anderson, a law professor at American University, defended the right to conduct drone operations without consent if a country refuses to address the threat. He added, however, that such a program can't be sustained by secret winks and nods.
"Strategic ambiguity is a real bad long-term policy because it eventually blows up in your face," Mr. Anderson said. "It's not stable."
Senior U.S. officials worry about maintaining the support of an important ally—the U.K.—where officials have begun to express concerns privately about the extent of Pakistan's consent.
Britain began a review to see whether under British law it could continue to cooperate with the program, say U.S. and British officials, after Pakistan closed the CIA's drone base in December. Pakistan took that action after a strike by a manned U.S. aircraft killed two dozen Pakistani troops mistaken for militants. Britain eventually decided to maintain its cooperation.
John Bellinger, the top State Department legal adviser in the George W. Bush administration, said that for the U.S., it is "not unreasonable to assume consent" from Pakistan for the use of drones, "particularly when the U.S. conducts repeated attacks and it's open and obvious."
But some in the U.K., Mr. Bellinger added, might "need to have greater clarity that there actually is consent," given increasing domestic legal scrutiny for Britain's supporting role in the program.
Until the raid that killed Osama bin Laden, there was a more open channel of communication.
In the early days of the Afghan war, lists of specific individuals to be targeted on Pakistani soil by U.S. drones were approved by both the U.S. and Pakistan, in what was called a "dual-key" system. Starting about four years ago, the U.S. began increasingly to go it alone.
By last year, according to U.S. officials, the system in place was that the CIA would send a regular monthly fax to Pakistan's Inter-Services Intelligence agency. The fax would outline the boundaries of the airspace the drones would use—large areas along the Pakistan-Afghanistan border referred to as flight "boxes" because they are shaped like three-dimensional rectangles in the sky. There was no mention of specific targets.
The ISI would send back a fax acknowledging receipt. The return messages stopped short of endorsing drone strikes. But in U.S. eyes the fax response combined with the continued clearing of airspace to avoid midair collisions—a process known as "de-confliction"—represented Pakistan's tacit consent to the program.
After the May 2011 bin Laden raid, which the U.S. did without Pakistani permission or knowledge, the ISI stopped acknowledging receipt of U.S. drone notifications, according to U.S. and Pakistani officials. Replies were stopped on the order of the ISI chief at that time, said an official briefed on the matter.
"Not responding was their way of saying 'we're upset with you,' " this official said. The official said the ISI chief chose that option knowing an outright denial of drone permission would spark a confrontation, and also believing that withdrawing consent wouldn't end the strikes.
Administration lawyers, including those with qualms such as Mr. Koh, believe the CIA's campaign is legal. They believe they have consent, however tacit, primarily because the Pakistani military continues to clear airspace for drones and doesn't interfere physically with the unpiloted aircraft in flight, according to officials involved with the administration's legal thinking.
Still, for some U.S. officials, including Mr. Koh, the lack of an ISI response to faxes was unnerving, leaving already-vague communications even more open to interpretation.
Spurred by concerns about the future of the drone program in Pakistan, administration lawyers have been considering the feasibility of making changes. One idea calls for putting some of the drones under control of the U.S. military, which would allow officials to talk more openly about how the program works and open the door to closer cooperation with the Pakistanis, according to U.S. and Pakistani officials.
The U.S. has also considered a coordinated campaign that could involve both U.S. drones and Pakistani F-16 fighter planes, these officials said.
In meetings in Washington last month with the new chief of Pakistan's ISI, Lt. Gen. Zahir ul-Islam, American officials raised the prospect of a "drone drawdown," according to Pakistani officials. American officials said the idea of ramping down the program gradually as security conditions permit has been hotly debated for months. Pakistani officials considered the proposal to be "amorphous" and "without detail," an adviser to Pakistan's government said.
Americans also raised the prospect of creating "joint ownership" of the drone program, the Pakistani adviser said, but no changes were agreed to.
Since retired Gen. David Petraeus became CIA director about a year ago, the agency has taken some steps to ease concerns about the drone program, according to officials. The frequency of drone strikes in Pakistan has fallen to an average of four a month, versus 10 monthly in the prior 12 months, based on a tally from the New America Foundation, a nonpartisan think tank.
Officials said Gen. Petraeus has occasionally overruled recommendations of the CIA's Counterterrorism Center and declined to authorize some strikes that could create friction with Pakistan. One U.S. official said the pace of counterterrorism operations mirrors the thinner ranks of al Qaeda after years of strikes.
The effort to put the program on a firmer legal footing is running into some hurdles. The council of counsels wants to make details of counterterrorism programs public in some ways to address court challenges and reassure anxious allies, as well as to avoid spurring future use of these kinds of technologies by other countries.
But the agency general counsels have drawn the line at revealing detailed criteria for picking targets or disclosing who makes the decisions. Officials say leaving these things ambiguous could help shield officials involved against possible court challenges and avoid providing information that militants could use to evade targeting. Courts in Europe have sought to put on trial some of the CIA officers and foreign partners alleged to be involved in detaining suspected militants in secret sites during the Bush administration.
—Julian E. Barnes contributed to this article.
Write to Adam Entous at adam.entous@wsj.com, Siobhan Gorman at siobhan.gorman@wsj.com and Evan Perez at evan.perez@wsj.com
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Citizen Held After 9/11 Wins Right to Be Tried
By ETHAN BRONNER
Published: September 28, 2012
NYT
A federal judge in Idaho has ruled that the United States, after the Sept. 11 terrorist attacks, wrongly imprisoned an American under a law designed to keep trial witnesses from fleeing and that since there was evidence that the government may have willfully misused the law against him, his case should go to trial.
Abdullah al-Kidd accuses the government of misusing federal law in detaining him in 2003.
In an interview in 2004, Mr. Kidd called his 16 days in prison “the most horrible, disgraceful, degrading moment in my life.”
Judge Edward J. Lodge, who was appointed by President George Bush, issued his rulings late on Thursday in the longstanding case of Abdullah al-Kidd, an American who was seized at an airport in 2003, imprisoned for 16 days, repeatedly strip-searched and left naked in his cell. The Justice Department had sought to have his trial request summarily dismissed and denied having misused the law in detaining him.
Mr. Kidd’s lawyer, Lee Gelernt of the American Civil Liberties Union, welcomed the ruling, saying, “It will finally put the government on trial for its post-Sept. 11 practices.”
A Justice Department spokesman declined to comment. The department could appeal the decision or seek a settlement with Mr. Kidd.
Mr. Kidd, who was born Lavoni T. Kidd and was a star football player at the University of Idaho before converting to Islam and changing his name, was detained under the argument that he was needed as a witness against a former classmate, Sami Omar al-Hussayen. But Mr. Kidd was never called in that case and he has accused the government of using it as a pretext to hold and question him on suspicion of terrorism.
Judge Lodge’s ruling affirms a June decision by United States Magistrate Mikel Williams that stated: “The circumstantial evidence supports the inference that al-Kidd may have been detained for reasons in addition to securing his testimony at trial.”
Magistrate Williams, who granted the Federal Bureau of Investigation the warrant to arrest Mr. Kidd while he was at Dulles Airport outside Washington on his way to Saudi Arabia in 2003, also said that the information given to him to justify the arrest was misleading. He was told that Mr. Kidd had a first-class one-way ticket and had received more than $20,000 from Mr. Hussayen. In fact, Mr. Kidd had an economy-class round-trip ticket, and the payment was salary for work he had done for Mr. Hussayen’s company.
In addition, the F.B.I. agent failed to mention that Mr. Kidd was a citizen, born and raised here, that his wife and son and many family members were in the United States and that he had never failed to cooperate with the F.B.I. Mr. Kidd was on his way to Saudi Arabia to work on his doctorate in Islamic studies, not to escape trial testimony.
Magistrate Williams wrote in June, “Considering the affidavit as a whole, the information included about the plane ticket, coupled with the information chosen to link al-Kidd to al-Hussayen, is misleading and highly suggestive of illicit involvement with criminal activity, inferring a motive to flee.”
Judge Lodge added that the affidavit “evidences a reckless disregard for the truth.”
Last year, the Supreme Court rejected Mr. Kidd’s attempt to hold John D. Ashcroft, the attorney general at the time, liable for alleged misuse of the statute, the federal material witness law. The justices said Mr. Ashcroft had immunity, but four of them raised questions about the actions of the F.B.I.
The case was returned to federal court in Idaho.
Mr. Kidd, who described himself as “anti-Bin Laden, anti-Taliban, antisuicide bombing, antiterrorism,” said he suffered enormously from his treatment by the government. He lost his scholarship to Saudi Arabia and his marriage fell apart. He is currently living in Saudi Arabia, teaching English and coaching a group of young men in American football, according to Mr. Gelernt, his lawyer.
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A Courtroom Victory for the 'American Taliban'
John Walker Lindh gains prison privileges by citing the Constitution he fought to destroy..
By AMMAR AMONETTE
A federal judge in Indianapolis ruled this month that John Walker Lindh, the American caught fighting with the Taliban in 2001, must be allowed to pray five times a day with fellow Muslim inmates at the federal prison in Terre Haute, Ind. Until the ruling, prison officials had—citing security concerns—allowed Lindh to pray in a group only once a week, with him otherwise praying by himself. As an American Muslim imam who spent more than 12 years studying in Saudi Arabia, I defended that policy when called before the court in October as an expert witness.
Lindh and I have a lot in common. We were both young Americans from broken homes who found meaning and purpose in the Islamic faith. Both of us traveled to the Middle East to pursue more advanced religious learning. As young students of theology, both of us were approached by representatives of extremist ideologies who recruit young Muslim seekers of knowledge to their training camps in Yemen and Afghanistan.
These recruiters appeal to the emotions of Muslims who see corrupt societies descending into chaos. The only salvation, in their view, is to destroy the old order and establish by force a new, pure Islamic order. Their version of Islam cannot peacefully coexist with any other faith or even with any other interpretation of Islam.
I freely chose Islam as my faith, and I had no desire to coerce others into joining it or any particular Islamic school of thought. Lindh, by contrast, found himself drawn to the extremists' worldview and eventually became an armed warrior for a violent movement that imposed its brutal version of utopia on the poor, war-torn nation of Afghanistan. His decision led to his capture and incarceration.
I support the right of Lindh and inmates of all faiths to practice their essential faith requirements while incarcerated. But I have worked in prison outreach for more than 20 years, and it is clear to me that Lindh rejects the U.S. Constitution yet seeks its legal protections so that he can further spread his extremist ideology behind bars.
Within the unit where Lindh is confined, he and some 20 other Muslim inmates meet once a week, on Fridays, for the Islamic Jumu'a service. Lindh contended in court that he should be able to participate in group prayer with other inmates five times a day—despite security concerns that make this impractical.
Lindh's special communication-restricted unit has limited space. He wants to use the small multipurpose room for prayer five times a day, but that would prevent classes and other events from being held there. Alternatively, he would hold the congregation in the corridor, but there is constant traffic there. Moreover, in Islamic law it is not permissible for anyone to pass through an assembled congregation during prayer—so if an inmate were to do so, a conflict could ensue.
Group prayer is not essential in Islamic jurisprudence. If a Muslim performs the five daily prayers alone rather than in congregation, that prayer is still acceptable to God. And if the person has a valid excuse for not attending—such as being a prisoner—then the prayer is not only acceptable but has the same multiple rewards of congregational prayer.
I argued in court that it would be unfair to create a special space in the prison for use by Muslims only, and that to authorize the use of the small common areas would create potential conflicts if others interrupted or behaved disrespectfully.
All inmates are expected to obey the rules of the institution, but Lindh and his fellow Muslim inmates had used their congregation as an excuse to ignore direct orders from security staff. When Muslim inmates engaged in congregational prayer were ordered to return to their cells during a fire emergency in 2007, for example, they refused. Personnel who should have been fighting the fire had to struggle to secure the inmates.
The Muslim inmates have also used their prayer gatherings to establish their own alternative authority structure, one that challenges the legitimate security concerns of a prison. They have their own inmate "amirs" (literally "commanders") who assert their authority to lead the Muslim "umma" (nation or community) within the prison, and they often seek to impose their own sometimes extreme and intolerant interpretations of rules on other inmates, operating in a manner similar to that of criminal gangs.
Lindh's group participated in brutal beatings of a former amir with whom they disagreed and of a Jewish inmate who refused to hand over the TV remote control. The group even blacklisted the imam who had contracted to visit their facility, blocking him from preaching or leading Friday prayers.
The U.S. prison system has always accommodated Lindh's practice of the essential tenets of his faith. Officials made special facilities available to him and other Muslim inmates during Ramadan, and he participates in Friday group prayers. An audio recording played in court of one such prayer that Lindh led on Feb. 24, 2012, reveals him asking God to take revenge upon his enemies and destroy Jews, Christians and all allied with them. Though disparaging the religious beliefs of other inmates, much less threatening violence, is neither allowed nor conducive to the secure and orderly administration of the prison, Lindh wasn't punished for this act.
Lindh doesn't recognize or respect the rights of other inmates, Muslim or non-Muslim. Nor does he, by his own admission in court, recognize any legal authority other than his own interpretation of Shariah law. He and his group are using religious rites as a cover for implementing and spreading their hateful ideology, yet federal Judge Jane Magnus-Stinson ruled in his favor and permanently enjoined the prison warden from enforcing the policy against daily congregational prayer for Lindh and his fellow inmates.
The judge stated that her injunction doesn't prohibit less restrictive measures intended to promote safety and security in the prison, but forcing prison staff to monitor a group prayer five times a day will necessarily limit staff resources elsewhere. With prison officials already overburdened, Judge Magnus-Stinson's ruling will likely allow Lindh and the others to continue expanding their privileges at the expense of everyone else.
Mr. Amonette is the imam of the Islamic Center of Virginia.
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The Real Problem With Obama's Drone Memo
The U.S. has dropped the clarity of the rules of war for the vague balancing tests that govern cops on the beat..
By JOHN YOO
WSJ
President Obama's antiterrorism policies are drawing new fire after this week's leak of the administration's legal memo defending the targeted killing of Americans. According to the Justice Department white paper obtained by NBC News, the U.S. can kill a citizen who is "continually planning attacks" for al Qaeda when an "informed, high-ranking" official decides that the target "poses an imminent threat" and capture is "infeasible."
Members of certain congressional committees will learn more about the policy after the White House announcement on Wednesday—in a move to stave off trouble on Capitol Hill—to let them see long-sought secret memos on the legal justification for targeted killings. From the leaked white paper, though, we get the drift: Americans may have constitutional rights, but the realities of war and the right to national self-defense trump individual rights when the executive branch is picking targets.
The antiwar left and right are going ballistic. "It's hard to believe that it was produced in a democracy built on a system of checks and balances," the ACLU said of the document, with characteristic understatement.
Sen. Rand Paul (R., Ky.) declared his concern "about having one person in the executive branch get together with some flashcards and decide who they're going to kill around the world, particularly American citizens."
Despite the hue and cry, Mr. Obama hasn't issued American 007s a license to kill. The real story revealed by the memo is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods. Its approach reflects the mind-set of an administration populated with officials who spent the Bush years decrying military methods then employed and are now trying to impose a weaker law-enforcement approach to combating terrorism.
Those of us in the Bush administration who worked on the response to 9/11 understood that the country was involved in a new kind of war, one that demanded the covert use of force abroad, detention of terrorists at Guantanamo Bay without criminal trials, tough interrogations, and broad electronic surveillance. But Mr. Obama and many of those who would become his advisers never fully accepted—or credited—the Bush administration's difficult decision to consider 9/11 an act of war.
Once elected, Mr. Obama declared in a 2009 speech: "The decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable." The Bush policies failed, he said, "to rely on our legal traditions and our time-tested institutions" and also failed "to use our values as a compass."
This mind-set is reflected in the leaked Justice Department white paper. It could have simply relied on precedent and stated that under the laws of war U.S. military units can kill any enemy soldiers at any time with snipers and artillery, drones and missiles, as well as at closer quarters.
U.S. citizenship doesn't create a legal force field around Americans who treasonously join the enemy. During the Civil War, every Confederate soldier remained a U.S. citizen. In World War II, Americans joined the Axis. As the Supreme Court reaffirmed in Hamdi v. Rumsfeld (2004), "Citizens who associate themselves with the military arm of the enemy government . . . are enemy belligerents."
But instead of relying on the traditional authority to kill the enemy, the leaked memo reveals how a legal fog threatens to envelop U.S. soldiers and agents on the front lines. The administration has replaced the clarity of the rules of war with the vague legal balancing tests that govern policemen on the beat.
The Bill of Rights establishes a careful set of rules for police conduct. Officers can use deadly force only when there is probable cause to believe a suspect will imminently cause serious bodily harm. The legal system doesn't generally allow the government to stop the potentially dangerous before they commit crimes.
The military's mission is quite the opposite. U.S. armed forces and intelligence agencies exist to pre-empt enemy attacks, not to apprehend the guilty afterward. Troops must have the right to use force against enemy armed forces at any time, not merely at the moment before "an operational leader" (in the Justice memo's words) seizes a plane or places a bomb.
The memo shows that for the first time in the history of American arms, presidential advisers will weigh the due-process rights of enemy combatants on the battlefield against the government's interests, judge an individual's "imminent" threat of violence, and ponder whether capture is feasible before deciding to strike. Under these provisions, the U.S. military's speed and decisiveness will suffer, even as the intelligence needed to identify drone targets dries up with the withdrawals from Iraq and now Afghanistan.
The memo even suggests that American al Qaeda leaders such as Anwar al-Awlaki (killed in a 2011 drone strike in Yemen) enjoy due-process rights. But in doing so, it dissipates the rights of the law-abiding at home.
While suggesting that al Qaeda terrorists have constitutional rights, the memo makes no room for judicial review of a strike, as would be required for any actual government deprivation of due process. All we have are scarcely believable accounts that Mr. Obama selects targets from CIA lists with the guidance of St. Thomas Aquinas's writings on what constitutes a just war.
This approach sets a concerning precedent regarding the government's respect for due process in future cases involving American citizens and legal residents who actually deserve the right. By including terrorists among those afforded constitutional protections, the president's policy risks stretching those protections a mile wide and an inch deep—weakening them for all Americans.
Then there's the question of whether Mr. Obama's approach really uses "our values as a compass." After he took office, the president made a great show of ending enhanced interrogation, which CIA directors say produced much of the intelligence used to locate al Qaeda leaders including Osama bin Laden. The Bush administration had subjected about 100 al Qaeda detainees to some tough methods, including three to waterboarding.
Rather than capture terrorists—which produces the most valuable intelligence on al Qaeda—Mr. Obama has relied almost exclusively on drone attacks, and he has thereby been able to dodge difficult questions over detention. But those deaths from the sky violate personal liberty far more than the waterboarding of three al Qaeda leaders ever did.
Mr. Yoo, a law professor at the University of California at Berkeley and a scholar at the American Enterprise Institute, served in the Office of Legal Counsel in President George W. Bush's Justice Department and helped draft memos concerning the legality of CIA interrogation of terrorist detainees.
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http://reason.com/archives/2013/02/07/you-dont-need-a-weatherman-to-know-which/print
You Don't Need a Weatherman to Know Which Way Journalists Blow
Nick Gillespie|Feb. 7, 2013 7:00 pm
Remember back in what was it - 2006 or thereabouts - when left-leaning critics of President Bush couldn't stop talking about how nothing was more red, white, and blue than good old-fashioned American dissent? Why, our very country was founded by an act of dissent, didn't you know! So back when Vice President Dick Cheney - routinely likened to Darth Vader and Voldemort - was running things, the very air was filled with cries of "not in our name" and all that, because it was so damned important that the United States not contravene its basic principles even in the name of self defense!
Those were good times, friends, and they stopped pretty much the minute that liberals and Democrats took control of the federal government. The antiwar movement disappeared once it became clear that Barack Obama wasn't going to shut down Gitmo or stop bombing places or give a rat's ass about that constitutional stuff he used to teach in law school.
But cheer up, because things can always get worse, as the last few days have demonstrated.
There's that report from the Open Society Justice Initiative that despite Obama's soothing intonations to the contrary, the U.S. is complicit in torture up the ying-yang. And of course there's the leaked memo outlining what passes for Obama's decision tree regarding killing suspected terrorists, including U.S. citizens. It's a relief to that the president has put his top men - anonymous yet "informed, high-level" officials - on figuring just who should be pinged and when. No need to share information or evidence or anything with either the legislative or judicial branches because that would just get in the way of getting the job done, right? Checking your math and making sure you're not making a bone-headed unconstitutional mistake is for losers. We're at war, don't you see, a new and different sort of war in which the old rules don't apply. And besides, doesn't the authorization of war powers signed three days after September 11, 2001 mean that whatever Obama does is A-OK? So even if we do need rules, Obama's got that covered! Nothing to see here, move along please.
It's sad, though never unexpected, when leaders such as Obama flip flop like a fish on the sand once they ascend power. Cromwell did it, the French revolutionaries did it, Castro did it, the Sandanistas did it, and on and on. It's one of the oldest plots in history and infinitely adaptable to new conditions. How else to explain, as Jacob Sullumn notes, that candidate Obama rejected the Bush adminstration's position that it could detain U.S. citizens as enemy combatants without pressing charges while President Obama claims the right to kill U.S. citizens without laying charges? The guy may not be able to pass a budget but christ, give him credit for ingenuity and brass balls.
But Obama is a politician - what do you expect? Politicians are not just the bottom of the barrel - they're what's under the bottom of the barrel, right?
So what then explains the contortions that journalists fold themselves into like so many carnival sideshow rubber-men in defending their hero? Mike Riggs points to comments by rising liberal MSNBC pundit Toure that suggest just how far explicitly pro-Obama liberals are willing to go in excusing the president's declaring himself and his crew judge, jury, and executioner. As Riggs explains, it seems pretty clear that Toure isn't up to speed on specifics, especially when it comes to the killing of Anwar al-Awlaki's 16-year-old son:
When his co-hosts continue to press him on the consequences of a small group of individuals determing who deserves to die without a shred of oversight, Touré dismisses them by saying, "Al Qaeda attacked this nation. We are attacking al Qaeda back." On Twitter Touré simply said, "He's the Commander in Chief."
Al Qaeda is the new Communism, dig? To invoke its name is to settle all arguments. If Toure is just light on facts, the recent defense of Obama's kill list machinations from Michael Tomasky is more illuminating of the mind-set that controls journalists. Tomasky has been at the news game far longer than Toure and once upon a time penned a fawning "inside" account of what he dubbed Hillary Clinton's "Improbable, Victorious Senate Campaign." After stints at various leftoid outposts such as The American Prospect and The Guardian, Tomasky has now found a perch at The Daily Beast. Back in the day, Tomasky was a reliable critic of everything related to Bushitler, by which I of course mean Dick Cheney. Here he is circa 2009, in a typical post titled "Dick Cheney's Dangerous Game":
Cheney wants Americans to live in fear. He believes that we should be living in more or less constant fear of another attack. I suppose it probably occurred to him over the years that, when a people are whipped into a fearful state, they tend to hand their leaders more power....
Obama wants to move people beyond fear. "If we continue to make decisions from within a climate of fear," he said, "we will make more mistakes." Are the American people up to this? More to the point – and more depressing to consider – are Washington politicians? We will find out as this debate plays out.
This sort of analysis struggles to rise above Goofus and Gallant in Highlights for Children: Goofus constantly invokes real and imagined threats to concentrate his power. Gallant talks a good game about protecting rights even while claiming far more power than this predecessor.
Tomasky struggles with the in-your-face spectacle of a president saying he has the right to pick which Americans can be killed unilaterally by insisting that the important thing is to walk a mile in Obama's mocassins:
I’ve always written about politics with part of my brain focused on the question of what I would do if I were in Politician X’s position. This line of thought came so naturally to me that I imagined everyone did this.... [The memo is] certainly not something that makes the breast swell with pride. But it does make me wonder what I would do in this situation, and I can’t honestly come up with easy answers.
He should try harder to come up with answers, perhaps by halting the mind-meld with the powerful and instead grokking some imaginary solidarity with the falsely accused. After dilating a while on the term imminent as used in
the memo and then deciding that al Qaeda is pretty much always about to attack the U.S., he concludes
Well, either this makes a certain sense to you, or you just think that a state can't be in the business of killing its own citizens and that's all there is to it. There's no doubt that a sentence like "the president has the power to order the assassination of American citizens" sounds positively despotic. However, these are people who have gone off and joined Al Qaeda (the white paper also mentions "associated groups," and one definitely wonders where that line is drawn, precisely). If an American citizen of German descent had gone back to...Germany in 1934 and joined the Nazi Party and worked his way up such that he was involved in the plotting of attacks against American soldiers, and Roosevelt had order him killed, no one would have batted an eye in 1940s America.
You got that? You're either with the president's logic or you can't understand it (shades of George Bush's simplistic, Bible-based manicheanism when he said you're either with us or against us!). There's enough qualifiers in the passage above to give anyone pause, of course: Who are the associated groups after all? How exactly is this like 1940s America? The short version, as even Tomasky eventually grants later, is that "it's not 1940s America." Last time, I checked, Congress declared war against Nazi Germany. And the Nazis kept membership lists which greatly minimized - though didn't eliminate fully - questions of who belonged. Maybe more important, mistakes were made, including the internment of over 100,000 Japanese Americans and alien residents for no good reason other than hysteria. Can we learn at least a little from the past? And not the distant past, either. Enough of the detainees at Gitmo were wrongly held so that you'd figure Obama (didn't he pledge to shut that prison down?) would want to make double-plus sure that he's targeting the right bastards?
But all Tomasky's mental whittling is besides the point, really, because people aren't saying they can't think of scenarios in which the state has the legitimate right to kill bad guys (including its own citizens) without going through every possible aspect of criminal or military due process. The current controversy is over Barack Obama's unwillingness to explain precisely how and when he's been making such calls and exactly where he thinks he derives the right to do so.
Tomasky's colleague at The Daily Beast, David Frum, is not beset with internal strife. A former Bush speechwriter (best known for coining the phrase "the Axis of Evil"), Frum says that just about anything Obama does is plainly covered under the authorization of the use of military force (AUMF) that was signed a few days after 9/11. "That resolution remains in force today," writes Frum. "It assigns to the president - not to some judge - the authority to determine who committed the 9/11 attacks. It assigns to the president - not a jury - the responsibility to prevent any future acts of international terrorism." Leaving aside the fact that it was signed a dozen years ago, the AUMF does direct the president "to use all necessary and appropriate force" to bring the 9/11 terrorists to justice as well as "to prevent any future acts of international terrorism against the United States." While the authorization covers a lot of ground, it doesn't mean that the president, or whoever he designates, can simply do whatever he pleases. As Eli Lake noted for Reason in 2010, the Supreme Court limited President Bush's powers under the AUMF and the Obama adminstration itself pledged to respect international law even while prosecuting the war on terror. More to the point, perhaps, the AUMF doesn't mean that Congress can't oversee or be privy to the president's actions and logic. What does it say about Obama's respect for a separation of powers and the Constitution that he has refused to give the Senate the classified truth on his decision matrix for killing suspected terrorists? Nothing good.
We grudgingly allow the government to surveil, detain, and confront people all the time when various sorts of suspicions are raised; the difference is that there is a clear framework in place so that we can judge whether the government is acting in accordance with the law rather than simply acting on its own impulse. You'd think that Obama - an Ivy League lawyer and a Nobel Peace Prize winner no less- would be proactive in reassuring the Congress and the country that he's not flying by the seat of his pants on this.
By making clear that as a journalist he tries to see things first and foremost from the perspective of the powerful, Michael Tomasky helps to clarify why so many in the media are rushing to the president's defense. They are entranced with power and the view from the top. "Presidents live with that responsibility [of protecting American lives] every day," he writes. "If that responsibility were mine, I can't honestly say what I'd do, and I don't think anyone can." Not all journalists are awed by power, of course, even on the right (National Review's Jim Geraghty, for instance, asserts that this sort of thing of extra-judicial killing policy wouldn't be cricket even under a GOP president).
This isn't ultimately about ideological hypocrisy - of liberals changing their tune once their guy is in office - but something much more basic and much more disturbing. It reveals that for all their crowing about being watchdogs of all that is good and decent in society, when push comes to shove, too many journalists are ready and willing handmaidens to power - including the power to kill.
There's the old saw from Mother Jones - the namesake of today's left-wing publication - that her job was to "comfort the afflicted and afflict the comfortable." To its credit and unlike too many on the broadly construed left, Mother Jones (the magazine and website) still believes that as it relates to civil liberties. As Adam Serwer has written,
The Obama administration claims that the secret judgment of a single "well-informed high level administration official" meets the demands of due process and is sufficient justification to kill an American citizen suspected of working with terrorists. That procedure is entirely secret. Thus it's impossible to know which rules the administration has established to protect due process and to determine how closely those rules are followed. The government needs the approval of a judge to detain a suspected terrorist. To kill one, it need only give itself permission.
That such an obvious analysis escapes so many in the press is troubling, to say the least. But it makes total sense if, as Michael Tomasky says, you focus first on what you would do if you were in "Politician X's position." The world - and your concerns - must surely look different when viewed from such a lofty vantage point.
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How to Untangle an Incoherent Drone Policy
The Authorization for Use of Military Force in 2001 didn't sufficiently address the scope of the conflict. Time for a fix..
By MICHAEL B. MUKASEY
WSJ
The late judge Henry Friendly is reputed to have deflated one eager law clerk by telling the young man that his memo contained much that was helpful and much that was new, but what was helpful wasn't new and what was new wasn't helpful. The same might be said of the Obama administration's recently leaked "white paper" on drone warfare—a document that has loosed a torrent of rhetoric from left and right questioning the president's authority ever to authorize the killing of an American in wartime. Although much of that rhetoric is off the mark, the memo is problematic for other reasons.
The president's authority in wartime to target U.S. citizens is nothing new. In the summer of 1942, a dozen or so German soldiers came ashore from two submarines off Long Island, N.Y., and Ponte Vedra Beach, Fla., intent on sabotage. When they were eventually caught, they were tried in a military court in Washington, even though the civilian courts were open and one of the saboteurs claimed that he was an American citizen entitled to a trial in a civilian court. The Supreme Court brushed that claim aside as immaterial in an opinion (Ex Parte Quirin) filed after he and most of the others had been executed.
President Obama's critics say he is acting as judge, jury and executioner, but the strikes are carried out not as retribution for past acts but to prevent future ones. Although the target is just as dead one way as the other, the distinction in purpose is all-important.
Article II of the Constitution confers on the president "[t]he executive authority"—all of it—and the role of commander in chief. Under a line of Supreme Court authority going back at least to the Civil War, that means the president has the responsibility and authority to direct action in defense of the nation, including action with lethal effect if necessary.
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.He is also charged as chief executive with seeing to it that the laws are enforced—in this case the 2001 Authorization for the Use of Military Force against those persons and entities who perpetrated the 9/11 attacks, including al Qaeda and those acting in concert with it. However, that force (particularly when directed at a U.S. citizen for whom the Constitution contains protections against the government) is for defense, not for retribution.
The AUMF was passed within days of 9/11 and is limited, even when expansively read, to those with some connection to that event. Perhaps for that reason, the Obama administration memo goes beyond that 2001 authorization and completely off the rails.
The memo mentions the president's constitutional responsibility under Article II to defend the country, but it grounds the president's authority to act not in the Constitution but in "the inherent right of the United States to national self-defense under international law . . . and the existence of an armed conflict with al-Qa'ida under international law."
A moment's reflection yields the insight that the U.S. government's powers are defined by the Constitution, not by international law, and that in any event international law is a highly elusive concept, there being no universally recognized source for it. Yet here the Obama administration seems to prefer abandoning the Constitution altogether rather than relying on an inherent presidential power invoked by its predecessor in the years immediately after 9/11.
One way to untangle this situation would be to amend the AUMF to clarify the scope of the conflict in which the U.S. is engaged. On the tactical level, that would permit Congress to define the circumstances in which the U.S. may detain and interrogate—measures at once more humane than drone strikes and far more likely to yield actionable intelligence rather than merely consume it. The original law doesn't mention detention or interrogation, instead referring only to the use of armed force.
On a strategic level, a legislative effort to amend the AUMF would require lawmakers to face up to the reality that America's adversary isn't simply this or that group but rather those who pursue a totalitarian Islamist ideology.
Instead of undertaking that legislative effort, some—reportedly including some in the administration—favor tossing the problem to a newly tasked special court that would examine the president's choices of drone targets and thus buck up public confidence that he isn't acting arbitrarily. This feel-good prescription is devoid of substance.
Judges have no basis or background that suits them to review targeting decisions and no way to gather facts independently. Because they may serve for life, there is no way to hold them politically accountable for a decision—how best to defend the country—on which elected politicians are supposed to rise or fall. If it is simply a matter of introducing into the process some figure in whom the public has unreasoning trust, we might just as plausibly have the president's targeting decisions reviewed by Oprah.
There are those who look at all of this and simply laugh bitterly at the Obama administration's hypocrisies. An administration that shrinks from detention and interrogation prefers instead the killing of those who might be detained and interrogated, with their lives and property saved as a result. If hypocrisy is the tribute that vice pays to virtue, as La Rochefoucauld taught, then surely this is a luminous tribute from the Obama administration to its predecessor.
A satisfying thought, in its own way, but not as satisfying as a coherent and effective policy.
Mr. Mukasey served as U.S. attorney general from 2007-09, and as a U.S. district judge from 1988 to 2006.
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Administration debates stretching 9/11 law to go after new al-Qaeda offshoots
By Greg Miller and Karen DeYoung, Published: March 6
A new generation of al-Qaeda offshoots is forcing the Obama administration to examine whether the legal basis for its targeted killing program can be extended to militant groups with little or no connection to the organization responsible for the attacks on Sept. 11, 2001, U.S. officials said.
The Authorization for Use of Military Force, a joint resolution passed by Congress three days after the strikes on the World Trade Center and the Pentagon, has served as the legal foundation for U.S. counterterrorism operations against al-Qaeda over the past decade, including ongoing drone campaigns in Pakistan and Yemen that have killed thousands of people.
But U.S. officials said administration lawyers are increasingly concerned that the law is being stretched to its legal breaking point, just as new threats are emerging in countries including Syria, Libya and Mali.
“The farther we get away from 9/11 and what this legislation was initially focused upon,” a senior Obama administration official said, “we can see from both a theoretical but also a practical standpoint that groups that have arisen or morphed become more difficult to fit in.”
The waning relevance of the 2001 law, the official said, is “requiring a whole policy and legal look.” The official, like most others interviewed for this article, spoke on the condition of anonymity to discuss internal administration deliberations.
The authorization law has already been expanded by federal courts beyond its original scope to apply to “associated forces” of al-Qaeda. But officials said legal advisers at the White House, the State Department, the Pentagon and intelligence agencies are now weighing whether the law can be stretched to cover what one former official called “associates of associates.”
The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda’s agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. They could be exposed to drone strikes and kill-or-capture missions involving U.S. troops.
Officials said they have not ruled out seeking an updated authorization from Congress or relying on the president’s constitutional powers to protect the country. But they said those are unappealing alternatives.
AUMF and the war on terror
The debate comes as the administration seeks to turn counterterrorism policies adopted as emergency measures after the 2001 attacks into more permanent procedures that can sustain the campaign against al-Qaeda and its affiliates, as well as other current and future threats.
The AUMF, as the 2001 measure is known, has been so central to U.S. efforts that counterterrorism officials said deliberations over whom to put on the list for drone strikes routinely start with the question of whether a proposed target is “AUMF-able.”
The outcome of the debate could determine when and how the war on terrorism — at least as defined by Congress after the Sept. 11 attacks — comes to a close.
“You can’t end the war if you keep adding people to the enemy who are not actually part of the original enemy,” said a person who participated in the administration’s deliberations on the issue.
Administration officials acknowledged that they could be forced to seek new legal cover if the president decides that strikes are necessary against nascent groups that don’t have direct al-Qaeda links. Some outside legal experts said that step is all but inevitable because the authorization has already been stretched to the limit of its intended scope.
“The AUMF is becoming increasingly obsolete because the groups that are threatening us are harder and harder to tie to the original A.Q. organization,” said Jack Goldsmith, an expert on national security law at Harvard University and a former senior Justice Department official.
He said extending the AUMF to groups more loosely tied to al-Qaeda would be “a major interpretive leap” that could eliminate the need for a link between the targeted organization and core al-Qaeda.
The United States has not launched strikes against any of the new groups, and U.S. officials have not indicated that there is any immediate plan to do so. In Libya, for example, the United States has sought to work with the new government to apprehend suspects in the Benghazi attack.
Still, the administration has taken recent steps — including building a drone base in the African country of Niger — that have moved the United States closer to being able to launch lethal strikes if regional allies are unable to contain emerging threats.
The administration official cited Ansar al-Sharia as an example of the “conundrum” that counterterrorism officials face.
The group has little if any established connection to al-Qaeda’s leadership core in Pakistan. But intercepted communications during and after the attack in Benghazi indicated that some members have ties to al-Qaeda in the Islamic Maghreb, the terrorist network’s main associate in North Africa.
“Certainly there are individuals who have an affiliation from a policy, if not legal, perspective,” the official said. “But does that mean the whole group?”
Other groups of concern include the al-Nusra Front, which is backed by al-Qaeda in Iraq and has used suicide bombings to emerge as a potent force in the Syrian civil war, and a splinter group in North Africa that carried out a deadly assault in January on a natural-gas complex in Algeria.
A focus on Sept. 11
The debate centers on a piece of legislation that spans a single page and was drafted in a few days to give President George W. Bush authority to “use all necessary and appropriate force” against al-Qaeda.
The law placed no geographic limits on that power but did not envision a drawn-out conflict that would eventually encompass groups with no ties to the Sept. 11 strikes. Instead, it authorized the president to take action “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.”
The authorization makes no mention of “associated forces,” a term that emerged only in subsequent interpretations of the text. But even that elastic phrase has become increasingly difficult to employ.
In a speech last year at Yale University, Jeh Johnson, who served as general counsel at the Defense Department during Obama’s first term, outlined the limits of the AUMF.
“An ‘associated force’ is not any terrorist group in the world that merely embraces the al-Qaeda ideology,” Johnson said. Instead, it has to be both “an organized, armed group that has entered the fight alongside al-Qaeda” and a “co-belligerent with al-Qaeda in hostilities against the United States or its coalition partners.”
U.S. officials said evaluating whether a proposed target is eligible under the AUMF is only one step. Names aren’t added to kill or capture lists, officials said, unless they also meet more elaborate policy criteria set by Obama.
If a proposed a target doesn’t clear the legal hurdle, the senior administration official said, one option is to collect additional intelligence to try to meet the threshhold.
Officials stressed that the stakes of the debate go beyond the drone program. The same authorities are required for capture operations, which have been far less frequent. The AUMF is also the legal basis for the CIA’s drone campaign in Pakistan, although the agency compiles its own kill list in that operation with little involvement from other agencies.
The uncertainty surrounding the AUMF has already shaped the U.S. response to problems in North Africa and the Middle East. Counterterrorism officials concluded last year that Mokhtar Belmokhtar, a militant leader in Algeria and Mali, could not be targeted under the AUMF, in part because he had had a falling out with al-Qaeda’s leadership and was no longer regarded as part of an associated group.
Belmokhtar was later identified as the orchestrator of the gas-plant attack in Algeria in which dozens of workers, including three Americans, were killed.
Obama’s decision to provide limited assistance to French air attacks against Islamist militants in Mali this year was delayed for weeks, officials said, amid questions over whether doing so would require compliance with the AUMF rules.
Some options beyond the 2001 authorization are problematic for Obama. For instance, he has been reluctant to rely on his constitutional authority to use military force to protect the country, which bypasses Congress and might expose him to criticism for abuse of executive power.
Working with Congress to update the AUMF is another option. The Senate Intelligence Committee has already begun considering ways to accomplish that. But Obama, who has claimed credit for winding down two wars, is seen as reluctant to have the legislative expansion of another be added to his legacy.
“This is an ongoing discussion, which we’ll probably continue to engage on the Hill,” the senior administration official said. “But I don’t know that there’s a giant desire to have ‘Son of AUMF’ now.”
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Hat tip to BigDog
http://www.nationaljournal.com/magazine/when-the-whole-world-has-drones-20130321
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A datum that I have cited is that we waterboarded only three people. Apparently this is not true.
http://www.nytimes.com/2013/04/16/world/us-practiced-torture-after-9-11-nonpartisan-review-concludes.html?nl=todaysheadlines&emc=edit_th_20130416&_r=0
WASHINGTON — A nonpartisan, independent review of interrogation and detention programs in the years after the Sept. 11, 2001, terrorist attacks concludes that “it is indisputable that the United States engaged in the practice of torture” and that the nation’s highest officials bore ultimate responsibility for it.
The sweeping, 577-page report says that while brutality has occurred in every American war, there never before had been “the kind of considered and detailed discussions that occurred after 9/11 directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.” The study, by an 11-member panel convened by the Constitution Project, a legal research and advocacy group, is to be released on Tuesday morning.
Debate over the coercive interrogation methods used by the administration of President George W. Bush has often broken down on largely partisan lines. The Constitution Project’s task force on detainee treatment, led by two former members of Congress with experience in the executive branch — a Republican, Asa Hutchinson, and a Democrat, James R. Jones — seeks to produce a stronger national consensus on the torture question.
While the task force did not have access to classified records, it is the most ambitious independent attempt to date to assess the detention and interrogation programs. A separate 6,000-page report on the Central Intelligence Agency’s record by the Senate Intelligence Committee, based exclusively on agency records, rather than interviews, remains classified.
“As long as the debate continues, so too does the possibility that the United States could again engage in torture,” the report says.
The use of torture, the report concludes, has “no justification” and “damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to U.S. military personnel taken captive.” The task force found “no firm or persuasive evidence” that these interrogation methods produced valuable information that could not have been obtained by other means. While “a person subjected to torture might well divulge useful information,” much of the information obtained by force was not reliable, the report says.
Interrogation and abuse at the C.I.A.’s so-called black sites, the Guantánamo Bay prison in Cuba and war-zone detention centers, have been described in considerable detail by the news media and in declassified documents, though the Constitution Project report adds many new details.
It confirms a report by Human Rights Watch that one or more Libyan militants were waterboarded by the C.I.A., challenging the agency’s longtime assertion that only three Al Qaeda prisoners were subjected to the near-drowning technique. It includes a detailed account by Albert J. Shimkus Jr., then a Navy captain who ran a hospital for detainees at the Guantánamo Bay prison, of his own disillusionment when he discovered what he considered to be the unethical mistreatment of prisoners.
But the report’s main significance may be its attempt to assess what the United States government did in the years after 2001 and how it should be judged. The C.I.A. not only waterboarded prisoners, but slammed them into walls, chained them in uncomfortable positions for hours, stripped them of clothing and kept them awake for days on end.
The question of whether those methods amounted to torture is a historically and legally momentous issue that has been debated for more than a decade inside and outside the government. The Justice Department’s Office of Legal Counsel wrote a series of legal opinions from 2002 to 2005 concluding that the methods were not torture if used under strict rules; all the memos were later withdrawn. News organizations have wrestled with whether to label the brutal methods unequivocally as torture in the face of some government officials’ claims that they were not.
In addition, the United States is a signatory to the international Convention Against Torture, which requires the prompt investigation of allegations of torture and the compensation of its victims.
Like the still-secret Senate interrogation report, the Constitution Project study was initiated after President Obama decided in 2009 not to support a national commission to investigate the post-9/11 counterterrorism programs, as proposed by Senator Patrick J. Leahy, Democrat of Vermont, and others. Mr. Obama said then that he wanted to “look forward, not backward.” Aides have said he feared that his own policy agenda might get sidetracked in a battle over his predecessor’s programs.
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The panel studied the treatment of prisoners at Guantánamo Bay, in Afghanistan and Iraq, and at the C.I.A’s secret prisons. Staff members, including the executive director, Neil A. Lewis, a former reporter for The New York Times, traveled to multiple detention sites and interviewed dozens of former American and foreign officials, as well as former detainees.
Mr. Hutchinson, who served in the Bush administration as chief of the Drug Enforcement Administration and under secretary of the Department of Homeland Security, said he “took convincing” on the torture issue. But after the panel’s nearly two years of research, he said he had no doubts about what the United States did.
“This has not been an easy inquiry for me, because I know many of the players,” Mr. Hutchinson said in an interview. He said he thought everyone involved in decisions, from Mr. Bush down, had acted in good faith, in a desperate effort to try to prevent more attacks.
“But I just think we learn from history,” Mr. Hutchinson said. “It’s incredibly important to have an accurate account not just of what happened but of how decisions were made.”
He added, “The United States has a historic and unique character, and part of that character is that we do not torture.”
The panel found that the United States violated its international legal obligations by engineering “enforced disappearances” and secret detentions. It questions recidivism figures published by the Defense Intelligence Agency for Guantánamo detainees who have been released, saying they conflict with independent reviews.
It describes in detail the ethical compromise of government lawyers who offered “acrobatic” advice to justify brutal interrogations and medical professionals who helped direct and monitor them. And it reveals an internal debate at the International Committee of the Red Cross over whether the organization should speak publicly about American abuses; advocates of going public lost the fight, delaying public exposure for months, the report finds.
Mr. Jones, a former ambassador to Mexico, noted that his panel called for the release of a declassified version of the Senate report and said he believed that the two reports, one based on documents and the other largely on interviews, would complement each other in documenting what he called a grave series of policy errors.
“I had not recognized the depths of torture in some cases,” Mr. Jones said. “We lost our compass.”
While the Constitution Project report covers mainly the Bush years, it is critical of some Obama administration policies, especially what it calls excessive secrecy. It says that keeping the details of rendition and torture from the public “cannot continue to be justified on the basis of national security” and urges the administration to stop citing state secrets to block lawsuits by former detainees.
The report calls for the revision of the Army Field Manual on interrogation to eliminate Appendix M, which it says would permit an interrogation for 40 consecutive hours, and to restore an explicit ban on stress positions and sleep manipulation.
The core of the report, however, may be an appendix: a detailed 22-page legal and historical analysis that explains why the task force concluded that what the United States did was torture. It offers dozens of legal cases in which similar treatment was prosecuted in the United States or denounced as torture by American officials when used by other countries.
The report compares the torture of detainees to the internment of Japanese Americans during World War II. “What was once generally taken to be understandable and justifiable behavior,” the report says, “can later become a case of historical regret.”
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If we use a drone to drop a bucket of water onto a jihadist, is it still torture?
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http://www.washingtonpost.com/opinions/george-will-korematsu-and-the-dangers-of-waiving-constitutional-rights/2013/04/24/75586ca6-ac3e-11e2-b6fd-ba6f5f26d70e_story.html
Two of the three most infamous Supreme Court decisions were erased by events. The Civil War and postwar constitutional amendments effectively overturned Dred Scott v. Sandford (1857), which held that blacks could never have rights that whites must respect. Plessy v. Ferguson (1896), which upheld legally enforced segregation, was undone by court decisions and legislation.
The third, Korematsu v. United States (1944), which affirmed the president’s wartime power to sweep Americans of disfavored racial groups into concentration camps, elicited a 1988 congressional apology. Now Peter Irons, founder of the Earl Warren Bill of Rights Project at the University of California at San Diego, is campaigning for a Supreme Court “repudiation” of the Korematsu decision and other Japanese internment rulings. Such repudiation, if it occurred, would be unprecedented.
An essay Irons is circulating among constitutional law professors whose support he seeks is timely reading in today’s context of anti-constitutional presidencies, particularly regarding war powers.
On Feb. 19, 1942, President Franklin Roosevelt authorized the military to “prescribe military areas . . . from which any or all persons may be excluded.” So some 110,000 Americans of Japanese ancestry, two-thirds of them born here, were sent to camps in desolate Western locations. Supposedly, this was a precaution against espionage and sabotage. Actually, it rested entirely on the racial animus of Gen. John DeWitt, head of the Western Defense Command.
Using government records, Irons has demonstrated that because senior officials, including Solicitor General Charles Fahy, committed “numerous and knowing acts of governmental misconduct,” the Supreme Court based its decision on “records and arguments that were fabricated and fraudulent.” Officials altered and destroyed evidence that would have revealed the racist motives for the internments. And to preserve the pretext of a “military necessity” for the concentration camps, officials suppressed reports on the lack of evidence of disloyalty or espionage by Japanese Americans.
The 1943 “Final Report” on Japanese “evacuation,” prepared under DeWitt’s direction and signed by him, said a Japanese invasion was probable, that “racial characteristics” of Japanese Americans predisposed them to assist the invasion, and that it was “impossible” to distinguish loyal from disloyal Japanese American citizens, if there were any. “The Japanese race is an enemy race and while many second- and third-generation Japanese born on United States soil, possessed of United States citizenship, have become ‘Americanized,’ the racial strains are undiluted.”
When War Department officials objected to such assertions and demanded revisions, DeWitt ordered all copies and records of the original report destroyed, though one copy escaped DeWitt’s cover-up. The court, however, never saw it, remaining unaware of the racist basis of the theory of internment’s “military necessity.”
Also kept from the court was a report, prepared for the Chief of Naval Operations and made available to DeWitt, estimating potentially disloyal Japanese as just 3 percent of the Japanese American population and declaring that these were “already fairly well known to naval intelligence” and could be quickly apprehended, if necessary. The suppressed report’s conclusion: “The entire Japanese problem has been magnified out of its true proportion, largely because of the physical characteristics of the people (and) should be handled on the basis of the individual. . . and not on a racial basis.”
Fahy ignored an assistant attorney general’s warning that not advising the court of this report would constitute “suppression of evidence.” Furthermore, DeWitt justified internment because “the interception of unauthorized radio communications” emanating from along the coast “conclusively” accounted for Japanese submarine attacks on U.S. ships.
The FBI, however, reported “no information” of “any espionage activity ashore or . . . illicit shore-to-ship signaling.” The Federal Communications Commission investigated “hundreds” of reports of suspicious radio communications but found nothing to confirm DeWitt’s accusations. Yet Fahy in his oral argument assured the court he could guarantee the veracity of “every line, every word, and every syllable” of DeWitt’s report, and that “no person in any responsible position has ever taken a contrary position.”
The Korematsu decision reflected perennial dangers: panic and excessive deference, judicial and other, to presidents or others who would suspend constitutional protections in the name of wartime exigencies.
It is less important that the decision be repudiated than that it be remembered. Especially by those currently clamoring, since Boston, for a U.S. citizen — arrested in America and concerning whom there is no evidence of a connection with al-Qaeda, the Taliban or other terror network — to be detained by the military as an “enemy combatant.” The Korematsu case is a reminder that waiving constitutional rights is rarely necessary and rarely ends well.
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http://www.nationaljournal.com/nationalsecurity/why-we-defend-terrorists-20130502
From the article:
I see it as a civil-liberties issue. I think the concept of the war on terror, calling it a "war" was a mistake. I’ve spent years defending people caught up in the war on drugs, and I’ve seen the abuse that comes with seeing war rhetoric.... The use of war rhetoric in our court system becomes very dangerous, and it quickly erodes civil liberties.
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Conrad and I were discussing that very point tonight.
In my opinion, there IS a war, not with a nation state, but with a world-wide transnational movement of religious fanatics. The question is closer with regard to domestic attacks, but especially with overseas attacks/battles it is absurd to expect soldiers to collect evidence, give Miranda statements, give lawyers and 4th, 5th, and 6th Amendment rights (including the right to cross-examine witnesses!).
Gitmo exists for good reasons.
In the Boston Bombers attack I would have declared "enemy combatants" for interrogation purposes, then allowed them to be kicked back into the criminal system. Look at how much was gotten before BB#2 got mirandized. Too bad the flow of conversation was cut off, we would love to know more about whether they received training, from whom, etc.
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Boston Bombing Suspects Had First Planned Attack for July Fourth
WASHINGTON − The surviving suspect in the Boston Marathon bombings told F.B.I. interrogators that, as he and his brother plotted their deadly assault, they considered suicide attacks and striking on the Fourth of July, according to a law enforcement official.
But the suspect, Dzhokhar Tsarnaev, 19, told investigators that he and his brother, Tamerlan, 26, who was killed in a shootout with the police, ultimately decided to use pressure-cooker bombs and other homemade explosive devices, the official said.
The brothers finished building the bombs in Tamerlan’s apartment in Cambridge, Mass., faster than they anticipated and so decided to accelerate their attack to the Boston Marathon on April 15, Patriots Day in Massachusetts, from July, according to the account that Dzhokhar provided authorities. They picked the finish line of the marathon after driving around the Boston area looking for alternative sites, according to this account.
In addition, Mr. Dzhokhar told authorities that he and his brother viewed the Internet sermons of Anwar al-Awlaki, a radical American cleric who moved to Yemen and was killed in September 2011 by an American drone strike. There is no indication that the brothers communicated with Mr. Awakli before his death.
READ MORE »
http://www.nytimes.com/2013/05/03/us/Boston-bombing-suspects-planned-july-fourth-attack.html?emc=na
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http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.html
From the article:
The relevant law is the National Defense Authorization Act of 2012 (NDAA). This statute confirms the president’s power to wage war against al-Qaida and its associates, which was initially given to him in the Authorization for Use of Military Force (AUMF) passed shortly after 9/11. The NDAA also authorizes the president to detain enemy combatants, and bans him from transferring Guantanamo detainees to American soil.
The NDAA does not, however, ban the president from releasing detainees. Section 1028 authorizes him to release them to foreign countries that will accept them—the problem is that most countries won’t, and others, like Yemen, where about 90 of the 166 detainees are from, can’t guarantee that they will maintain control over detainees, as required by the law.
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By MARTHA RAYNER
In 2005, I filed a legal action against President George W. Bush on behalf of clients imprisoned without charges or trial at the military prisons of the Guantanamo Bay U.S. naval base in Cuba. The lawsuit—a habeas corpus petition challenging the lawfulness of imprisonment—was captioned as my clients' names versus President Bush's, who in his role as commander in chief of the U.S. military was my clients' jailer.
In 2009, when Barack Obama became the 44th president, the caption had to change. The case was now against President Obama.
At the time, this felt like a technical necessity of litigation. After all, my clients' harsh detention thousands of miles from their homes, which was designed to avoid the application of the rule of law, was carried out by Mr. Bush. Within days of his first inauguration, Mr. Obama ordered the closure of Guantanamo within one year, so the wrongs of one president were soon to be righted by the next. Barack Obama wasn't my clients' jailer, it was George Bush.
But this is no longer true. President Obama has never owned up to his role as jailer. He has viewed Guantanamo as a problem he did not create or ever support; he inherited the problem, it was thrust upon him. Although Mr. Obama has repeatedly recognized the significant costs of maintaining Guantanamo—the diminishment of U.S. standing in the world, the prison's symbolic value as a recruiting tool for terrorists, and the extraordinary expense and inefficiencies of running the prison—he has never acknowledged Guantanamo as truly his problem and his responsibility.
Mr. Obama's statements at his April 30 press conference displayed this detachment in a particularly troubling and revealing way. First, the president placed responsibility at Congress's door. He inaccurately blamed Congress for the continued existence of the prison, saying "Congress determined they would not let us close it."
This was a reference to the National Defense Authorization Acts of 2011, 2012 and 2013—all of which Mr. Obama signed into law. Although the president is required to make certain security assurances to Congress before transferring men from Guantanamo to other countries, the law does not prohibit him from carrying out such transfers.
Mr. Obama also inaccurately said at the press conference that Congress would not permit him to transfer men even when their transfer was court ordered. The opposite is true. Under the National Defense Authorization Acts, court-ordered releases are exempt from the security assurances otherwise required. Despite his clear authority in this matter, the president cannot seem to accept or acknowledge that he has the power to end indefinite detention without trial.
At the same time that he cast blame on Congress, Mr. Obama distanced himself from responsibility. Referring to the internment of the prisoners, he asked: "Why are we doing this?"—as if it is someone else, not he, who keeps the men at Guantanamo locked up.
In the same vein, Mr. Obama declared, "I'm going to go back to it because I think it is important." His promise to return to the issue of Guantanamo implies that he somehow stepped away from the subject—as if he has played no role in the ever-deeper permanency of this prison. On the contrary, every day Mr. Obama fails to start the transfer process is another day that he affirmatively decides to keep these men locked up.
The courts have made clear that this is Mr. Obama's decision. Three of my five clients were repatriated to their home countries under Mr. Bush's watch; the two who remain have given up on their habeas cases, since the courts have sanctioned indefinite detention without trial and left it to the commander in chief's discretion to determine who should be released and when.
The president's April 30 news conference was an attempt to quell the growing hunger strike at Guantanamo. But his words will drive the men into further desperation. They know it is Mr. Obama who imprisons them. So when the president blames Congress, takes no responsibility for keeping Guantanamo open, and offers tepid claims that he will see what he can do, it means only more of the same for the prisoners.
Mr. Obama must accept that the men held at Guantanamo are his prisoners, not George W. Bush's. As the commander in chief, he and he alone can and must act to end the practice of indefinite imprisonment without a fair trial.
Ms. Rayner is an associate clinical professor of law at Fordham University School of Law.
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Remember when the left was outraged at Gitmo?
Then their guy got into office and suddenly: Yawn....
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U.S. Court Case Tests Israeli Resolve
By CHARLES LEVINSON
WSJ
TEL AVIV—A lawsuit in a New York federal court has put Israel's leader in an extraordinary bind, between nurturing a growing relationship with China and pursuing commitments to fight terrorism and help an American family seeking recompense for the death of a son.
The challenge comes to a head in July, when a former Israeli official is scheduled to testify in a terror-financing case that began six years ago, when the Israeli government asked Florida residents Tully and Sheryl Wultz to sue the Bank of China 601988.SH -0.76% and pledged to help them with the case, the couple said.
The aftermath of the 2006 suicide bombing in Tel Aviv that killed Daniel Wultz and 10 others.
The couple and Israeli officials allege that the bank knowingly allowed Iran to use it to deliver funds to the Palestinian militant group that killed their 16-year-old son Daniel in a 2006 suicide bombing in Tel Aviv. The bank has denied the accusation and said it wouldn't comment on pending litigation.
The case hinges, the Wultzes said, on a pending deposition by a former Israeli intelligence official, who is expected to testify that he was present at 2005 meetings in which Israeli officials told China that Bank of China accounts were being used to fund militant organizations including Islamic Jihad, the Palestinian outfit that claimed responsibility for the attack that killed Daniel Wultz. The Wultzes say that they intend the deposition to show Bank of China is culpable for refusing to act to close the accounts.
But the Wultzes and a U.S. congresswoman say China is now pressing Israeli Prime Minister Benjamin Netanyahu to withdraw permission for the former intelligence official to testify.
"If they withdraw support for this case, it would be another tragedy on top of a tragedy," said Ms. Wultz.
Mr. Netanyahu's office declined to comment on the case. Chinese government officials also declined to comment.
The congresswoman, Rep. Ileana Ros-Lehtinen (R., Fla.), a member of the House Foreign Affairs Committee, wrote to Mr. Netanyahu on Wednesday to urge him to follow through on what she described as Israel's commitments to the Wultzes and allow the testimony to proceed.
Seeking Justice
A Florida family files suit after a Tel Aviv bombing
2005 Israel tells Chinese officials that Bank of China accounts were being used to funnel money from Iran to Islamic Jihad, according to affidavit by a former Israeli official.
April 2006 Florida resident Daniel Wultz, 16, is killed by an Islamic Jihad suicide bomber at a Tel Aviv restaurant
2007 Israeli officials ask Daniel's parents to file suit against the Bank of China, Iran and Syria in U.S. court, using U.S. antiterrorism statutes, according to the Wultzes.
2008 The Wultzes file suit against the Bank of China, Iran and Syria in a Washington, D.C. federal court. The Bank of China case is later moved to a New York federal court.
April-May 2012 Israeli Prime Minister Benjamin Netanyahu assures the Wultzes that a former Israeli intelligence official will be allowed to provide testimony in the case, according to the Wultzes and Rep. Ileana Ros-Lehtinen in a letter to Mr. Netanyahu
March 2013 The former Israeli official notifies lawyers in the case that he is prepared to testify
April Chinese officials raise the case with Israeli Ambassador to China Matan Vilnai, according to people familiar with the case and an Israeli official.
May Prime Minister Netanyahu makes first official visit China since 1998 in effort to boost trade ties.
June Officials from Mr. Netanyahu's office tell the Wultzes and Congress members that they are reconsidering whether or not to allow the former official to testify, according to the Wultzes and congressional aides.
July The former Israeli official is scheduled to give testimony in the case against the Bank of China.
"We are aware of mounting pressure by the BOC and other Chinese interests…to interfere with the U.S. proceedings and the deposition," she wrote, according to a copy of the letter viewed by The Wall Street Journal. The Bank of China declined to comment.
Ms. Ros-Lehtinen urged that the official testify "to reaffirm Israel's solemn commitment to the victims of terror to ensure that justice be done."
A congressional staffer who has served as a link between the Wultzes and Israeli government said Mr. Netanyahu's office is now undecided about allowing the testimony, despite previous pledges to allow it.
If Israel prevents the deposition, Mr. Netanyahu would risk being accused of betraying the commitment to battling terrorism on which he built his political career. He would also risk alienating two of Israel's most powerful congressional allies, Ms. Ros-Lehtinen and House majority leader Eric Cantor, who is Ms. Wultz's first cousin. Mr. Cantor's office didn't return calls seeking comment.
If Mr. Netanyahu supports the lawsuit, he could undermine a growing relationship with China that is worth over $8 billion a year to the Israeli economy.
Israel also needs China to help tighten the screws on Iran over its nuclear program, which for Mr. Netanyahu is Israel's biggest security threat.
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European Pressphoto Agency
Prime ministers Netanyahu and Li Keqiang in Beijing in May.
In 2005, in the midst of the second Palestinian Intifada, Israeli intelligence officials mapped what they said was a network used by Iran to funnel cash to Islamic Jihad in Gaza, using Bank of China accounts, according to Israeli officials. Israeli officials went to Beijing, presented Chinese officials with evidence and asked them to close the accounts, according to an affidavit by a former Israeli official. The accounts remained open, Israeli officials said.
In April 2006, Tully Wultz and his son Daniel were eating at a food stand near the Tel Aviv bus station, when an Islamic Jihad suicide bomber blew himself up, killing Daniel and 10 others. Mr. Wultz was wounded.
In 2007, senior Israeli officials from the prime minister's office contacted the family's lawyers with a proposition, according to the Wultzes. The officials said the Wultzes could bring pressure to bear on Palestinian terror financing networks by using tough U.S. terrorism statutes only available to American citizens, according to the Wultzes.
The Israeli government pledged their full support, and offered the family classified intelligence, including scores of suspect Bank of China account numbers and records of money transfers, the Wultzes said.
"They asked us to do the lawsuit, and they said they'll fully cooperate with us and give us anything we need to win," said Mr. Wultz. That pledge was reaffirmed by Mr. Netanyahu's office in 2012, according to emails to the Wultzes reviewed by The Wall Street Journal.
[image]
The original lawsuit, filed in Washington in 2008, accused Iran and Syria of funding Islamic Jihad, and Bank of China of failing to close accounts used to fund the group. The Bank of China case was later moved to the U.S. District Court for the Southern District of New York.
The Wultzes won their case against Iran and Syria, with a judgment that orders that two countries to pay $323 million in damages, which remain unpaid.
The Bank of China case was raised in meetings between Israeli and Chinese officials in April, an Israeli official said.
The following month, Mr. Netanyahu took his first official trip to China since 1998, saying it was aimed at boosting Israel-China trade from $8 billion a year to $10 billion within three years. Mr. Netanyahu said the trip, which yielded a new $400 million trade agreement, was a success.
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Pasting BD's post here as well
New AUMF?
Administration debates stretching 9/11 law to go after new al-Qaeda offshoots
By Greg Miller and Karen DeYoung, Published: March 6
A new generation of al-Qaeda offshoots is forcing the Obama administration to examine whether the legal basis for its targeted killing program can be extended to militant groups with little or no connection to the organization responsible for the attacks on Sept. 11, 2001, U.S. officials said.
The Authorization for Use of Military Force, a joint resolution passed by Congress three days after the strikes on the World Trade Center and the Pentagon, has served as the legal foundation for U.S. counterterrorism operations against al-Qaeda over the past decade, including ongoing drone campaigns in Pakistan and Yemen that have killed thousands of people.
But U.S. officials said administration lawyers are increasingly concerned that the law is being stretched to its legal breaking point, just as new threats are emerging in countries including Syria, Libya and Mali.
“The farther we get away from 9/11 and what this legislation was initially focused upon,” a senior Obama administration official said, “we can see from both a theoretical but also a practical standpoint that groups that have arisen or morphed become more difficult to fit in.”
The waning relevance of the 2001 law, the official said, is “requiring a whole policy and legal look.” The official, like most others interviewed for this article, spoke on the condition of anonymity to discuss internal administration deliberations.
The authorization law has already been expanded by federal courts beyond its original scope to apply to “associated forces” of al-Qaeda. But officials said legal advisers at the White House, the State Department, the Pentagon and intelligence agencies are now weighing whether the law can be stretched to cover what one former official called “associates of associates.”
The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda’s agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. They could be exposed to drone strikes and kill-or-capture missions involving U.S. troops.
Officials said they have not ruled out seeking an updated authorization from Congress or relying on the president’s constitutional powers to protect the country. But they said those are unappealing alternatives.
AUMF and the war on terror
The debate comes as the administration seeks to turn counterterrorism policies adopted as emergency measures after the 2001 attacks into more permanent procedures that can sustain the campaign against al-Qaeda and its affiliates, as well as other current and future threats.
The AUMF, as the 2001 measure is known, has been so central to U.S. efforts that counterterrorism officials said deliberations over whom to put on the list for drone strikes routinely start with the question of whether a proposed target is “AUMF-able.”
The outcome of the debate could determine when and how the war on terrorism — at least as defined by Congress after the Sept. 11 attacks — comes to a close.
“You can’t end the war if you keep adding people to the enemy who are not actually part of the original enemy,” said a person who participated in the administration’s deliberations on the issue.
Administration officials acknowledged that they could be forced to seek new legal cover if the president decides that strikes are necessary against nascent groups that don’t have direct al-Qaeda links. Some outside legal experts said that step is all but inevitable because the authorization has already been stretched to the limit of its intended scope.
“The AUMF is becoming increasingly obsolete because the groups that are threatening us are harder and harder to tie to the original A.Q. organization,” said Jack Goldsmith, an expert on national security law at Harvard University and a former senior Justice Department official.
He said extending the AUMF to groups more loosely tied to al-Qaeda would be “a major interpretive leap” that could eliminate the need for a link between the targeted organization and core al-Qaeda.
The United States has not launched strikes against any of the new groups, and U.S. officials have not indicated that there is any immediate plan to do so. In Libya, for example, the United States has sought to work with the new government to apprehend suspects in the Benghazi attack.
Still, the administration has taken recent steps — including building a drone base in the African country of Niger — that have moved the United States closer to being able to launch lethal strikes if regional allies are unable to contain emerging threats.
The administration official cited Ansar al-Sharia as an example of the “conundrum” that counterterrorism officials face.
The group has little if any established connection to al-Qaeda’s leadership core in Pakistan. But intercepted communications during and after the attack in Benghazi indicated that some members have ties to al-Qaeda in the Islamic Maghreb, the terrorist network’s main associate in North Africa.
“Certainly there are individuals who have an affiliation from a policy, if not legal, perspective,” the official said. “But does that mean the whole group?”
Other groups of concern include the al-Nusra Front, which is backed by al-Qaeda in Iraq and has used suicide bombings to emerge as a potent force in the Syrian civil war, and a splinter group in North Africa that carried out a deadly assault in January on a natural-gas complex in Algeria.
A focus on Sept. 11
The debate centers on a piece of legislation that spans a single page and was drafted in a few days to give President George W. Bush authority to “use all necessary and appropriate force” against al-Qaeda.
The law placed no geographic limits on that power but did not envision a drawn-out conflict that would eventually encompass groups with no ties to the Sept. 11 strikes. Instead, it authorized the president to take action “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.”
The authorization makes no mention of “associated forces,” a term that emerged only in subsequent interpretations of the text. But even that elastic phrase has become increasingly difficult to employ.
In a speech last year at Yale University, Jeh Johnson, who served as general counsel at the Defense Department during Obama’s first term, outlined the limits of the AUMF.
“An ‘associated force’ is not any terrorist group in the world that merely embraces the al-Qaeda ideology,” Johnson said. Instead, it has to be both “an organized, armed group that has entered the fight alongside al-Qaeda” and a “co-belligerent with al-Qaeda in hostilities against the United States or its coalition partners.”
U.S. officials said evaluating whether a proposed target is eligible under the AUMF is only one step. Names aren’t added to kill or capture lists, officials said, unless they also meet more elaborate policy criteria set by Obama.
If a proposed a target doesn’t clear the legal hurdle, the senior administration official said, one option is to collect additional intelligence to try to meet the threshhold.
Officials stressed that the stakes of the debate go beyond the drone program. The same authorities are required for capture operations, which have been far less frequent. The AUMF is also the legal basis for the CIA’s drone campaign in Pakistan, although the agency compiles its own kill list in that operation with little involvement from other agencies.
The uncertainty surrounding the AUMF has already shaped the U.S. response to problems in North Africa and the Middle East. Counterterrorism officials concluded last year that Mokhtar Belmokhtar, a militant leader in Algeria and Mali, could not be targeted under the AUMF, in part because he had had a falling out with al-Qaeda’s leadership and was no longer regarded as part of an associated group.
Belmokhtar was later identified as the orchestrator of the gas-plant attack in Algeria in which dozens of workers, including three Americans, were killed.
Obama’s decision to provide limited assistance to French air attacks against Islamist militants in Mali this year was delayed for weeks, officials said, amid questions over whether doing so would require compliance with the AUMF rules.
Some options beyond the 2001 authorization are problematic for Obama. For instance, he has been reluctant to rely on his constitutional authority to use military force to protect the country, which bypasses Congress and might expose him to criticism for abuse of executive power.
Working with Congress to update the AUMF is another option. The Senate Intelligence Committee has already begun considering ways to accomplish that. But Obama, who has claimed credit for winding down two wars, is seen as reluctant to have the legislative expansion of another be added to his legacy.
“This is an ongoing discussion, which we’ll probably continue to engage on the Hill,” the senior administration official said. “But I don’t know that there’s a giant desire to have ‘Son of AUMF’ now.”
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Obama's Detention Victory
An appeals court backs his power to detain enemy combatants.
President Obama was a late convert to the Bush Administration's antiterror detention policies, but his latter-day position has now been vindicated. A panel of the Second Circuit Court of Appeals voted 3-0 last week to reject a lower court order that would have limited the ability of Congress to authorize the President to detain enemy combatants and those who aid and abet them.
Hedges v. Obama was brought by former New York Times stalwart Christopher Hedges and other anti-antiterror activists who claimed that the Obama Administration's use of the National Defense Authorization Act was unconstitutionally vague. Because the law allows the government to detain those who "substantially support" terrorism or "associated forces," the plaintiffs said they were afraid they could be imprisoned because of their work.
This was preposterous, but in September District Court Judge Katherine Forrest declared section 1021 unconstitutional. In overturning her decision, the Second Circuit panel wrote that the NDAA says nothing about the feds' ability to detain American citizens, and "the non-citizen plaintiffs have failed to establish a sufficient basis to fear detention under the statute to give them standing to seek preenforcement review."
That point was made at oral argument by Baker Hostetler's David Rivkin, who represented Senators John McCain, Lindsey Graham and Kelly Ayotte as amici in the case. The NDAA explicitly says that "[n]othing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force."
The plaintiffs say they'll appeal to the Supreme Court, but don't expect the Justices to take the offer. The legal war on the war on terror continues, but the Constitution gives the President broad wartime powers. As for Judge Forrest, an Obama appointee, she ought to be embarrassed to have been overruled so decisively.
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http://nationalreview.com/corner/354298/closing-gitmo-still-terrible-idea-andrew-c-mccarthy
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Manning's Convictions
The WikiLeaks source was heedless of the harm his leaks might do.
An Army court-martial on Tuesday convicted Bradley Manning, the private who provided more than 700,000 classified military and diplomatic documents to the WikiLeaks website, on 19 counts, including espionage. Although some of the documents were found on Osama bin Laden's computer, Colonel Denise Lind, who presided over the trial, acquitted Manning of the most serious charge, aiding the enemy, after his lawyers argued that wasn't his intent. Still, he could face up to 136 years in prison.
Related Video
Editorial board member Dorothy Rabinowitz on the verdict in the trial of Army Private First Class Bradley Manning, the WikiLeaks leaker. Photo: Associated Press
His defenders have described him as a whistleblower who shouldn't be treated harshly because he wasn't operating on behalf of a foreign government. Yet Manning released massive quantities of documents heedless of their content or the harm they might do to American interests.
Julian Assange, who is avowedly anti-American, and WikiLeaks then spread them far and wide. WikiLeaks also didn't redact the names of the people mentioned in the Iraq and Afghan incident reports leaked by Manning. Some of that content was potentially harmful to the American war effort, and especially to individuals in Afghanistan, Iraq and elsewhere who had assisted the U.S. and could be targeted by terrorists.
Manning also released hundreds of thousands of State Department cables, including confidential U.S. assessments of foreign officials and cooperation. These may have been less damaging to individuals but may have made some governments less likely to cooperate with the U.S. in the future.
Manning, who is gay, is also said to have objected to the since-repealed "don't ask, don't tell" law. That has won him sympathy among some in the gay community. But as our columnist Gordon Crovitz noted in March, among the potential victims of his unlawful disclosures were some who "were outed as homosexuals in countries where that makes them a target for deadly violence." Bradley Manning should be nobody's hero.
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Court Rulings Blur the Line Between a Spy and a Leaker
By ADAM LIPTAK
Published: August 2, 2013 336 Comments
WASHINGTON — The federal government is prosecuting leakers at a brisk clip and on novel theories. It is collecting information from and about journalists, calling one a criminal and threatening another with jail. In its failed effort to persuade Russia to return another leaker, Edward J. Snowden, it felt compelled to say that he would not be tortured or executed.
These developments are rapidly revising the conventional view of the role of the First Amendment in national security cases. The scale of disclosures made possible by digital media, the government’s vast surveillance apparatus and the rise of unorthodox publishers like WikiLeaks have unsettled time-honored understandings of the role of mass media in American democracy.
This is so even where the government was the nominal loser. Consider the case of Pfc. Bradley Manning, who dodged a legal bullet on Tuesday, winning an acquittal on the most serious charge against him: that releasing government secrets to the public amounted to “aiding the enemy.”
But a dodged bullet is still a bullet.
The military judge in Private Manning’s case ruled last year that there was no First Amendment problem with the government’s legal theory. Providing classified information for mass distribution, she said, is a sort of treason if the government can prove the defendant knew “he was giving intelligence to the enemy” by “indirect means.”
The verdict thus means only that military prosecutors did not prove their case. The legal theory stands, and it troubles even usual critics of unauthorized disclosures of government secrets.
“It blurs the distinction between leakers and spies,” said Gabriel Schoenfeld, the author of “Necessary Secrets: National Security, the Media, and the Rule of Law.” He said the government might have lost a battle but made headway in a larger war by “raising the charge and making it seem plausible.”
Something similar happened in 1971, when President Richard M. Nixon failed to stop the publication of the Pentagon Papers, a secret history of the Vietnam War. The Supreme Court’s ruling allowing The New York Times and The Washington Post to publish the papers is often said to be a high-water mark in the annals of press freedom.
But like the Manning verdict, the decision represented a shift in the understanding of the First Amendment.
“The American press was freer before it won its battle with the government,” Alexander Bickel, the Yale law professor who represented The Times in the case, wrote in his classic 1975 book, “The Morality of Consent.”
“Through the troubles of 1798, through one civil and two world wars and other wars, there had never been an effort by the federal government to censor a newspaper by attempting to impose a prior restraint,” Professor Bickel wrote. “That spell was broken, and in a sense, freedom was thus diminished.”
Worse, from the perspective of the news media, the victory in the Pentagon Papers case was distinctly limited and helped shape the Manning prosecution.
“A majority of the Supreme Court not only left open the possibility of prior restraints in other cases but of criminal sanctions being imposed on the press following publication of the Pentagon Papers themselves,” Floyd Abrams, who also represented The Times in the case, wrote in a new book, “Friend of the Court.”
According to a 1975 memoir by Whitney North Seymour Jr., who was the United States attorney in Manhattan in the early 1970s, Richard G. Kleindienst, a deputy attorney general, suggested convening a grand jury in New York to that end. Mr. Seymour said he refused. A grand jury was then convened in Boston, but it did not issue an indictment.
The “aiding the enemy” charge in the Manning case was based on military law, and it is not directly applicable to leakers in other parts of the government or to reporters and publishers. But the theory on which it was based has echoes in the more general espionage laws.
Until recently, its leading proponent was Nixon, who mused on the matter in a meeting in the Oval Office the day after The Times published the first installment of its reports on the Pentagon Papers.
“That’s treasonable,” he said to an aide, “due to the fact that it’s aid to the enemy and it’s a release of classified documents.”
In “Fighting for the Press,” a new book about the case, James C. Goodale, who was general counsel of The New York Times Company at the time, said President Obama has followed in Nixon’s footsteps.
“Obama apparently cannot distinguish between communicating information to the enemy and communicating information to the press,” Mr. Goodale wrote. “The former is espionage, the latter is not.”
But John Yoo, a law professor at the University of California, Berkeley, and a former Bush administration lawyer, said that distinction broke down in the Manning case because he did not make his disclosures directly to the establishment press.
“Manning’s defenders will say that Manning only leaked information to the 21st-century equivalent of a newspaper, and that he could not have known that Al Qaeda would read it,” Professor Yoo wrote in National Review Online.
“But WikiLeaks is not The New York Times or The Wall Street Journal, and it does not have First Amendment rights,” he added. “Manning communicated regularly with WikiLeaks’ founder and would have known about the group’s anarchic, anti-U.S. mission.”
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In June, David Gregory asked Glenn Greenwald a question in a similar vein on NBC’s “Meet the Press.” Mr. Greenwald had written articles on government surveillance programs for The Guardian based on materials from Mr. Snowden, a former National Security Agency contractor.
“To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?” Mr. Gregory asked.
Mr. Greenwald responded, “If you want to embrace that theory, it means that every investigative journalist in the United States who works with their sources, who receives classified information, is a criminal.”
The Obama administration seemed to adopt that view in seeking a court order to examine the e-mails of James Rosen of Fox News. The administration’s lawyers said there was “probable cause to believe” that Mr. Rosen was “at the very least” an “an aider and abettor and/or co-conspirator” in violations of the espionage laws.
New Justice Department guidelines, partly a reaction to the furor over the Rosen matter, say the department will not treat “ordinary news-gathering activities” as criminal conduct. But the guidelines do not define those activities.
Last month, a federal appeals court agreed with the Justice Department that James Risen, an author and New York Times reporter, must testify in a prosecution under the espionage laws or face contempt charges.
To date, there have been no prosecutions of journalists in the United States for seeking or publishing classified information. But two lobbyists with the American Israel Public Affairs Committee, Steven J. Rosen and Keith Weissman, were charged in 2005 with violating the espionage laws for conduct they said was functionally equivalent to journalism: they had learned government secrets and passed them along to others.
As in the Manning case, the firewall turned out not to be the First Amendment but the difficulty of proving intent. After Judge T. S. Ellis of Federal District Court in Alexandria, Va., ruled that the government had to show the defendants knew their conduct would hurt the United States, prosecutors dropped the charges.
But Judge Ellis had a larger message, too. He said the case “exposes the inherent tension between the government transparency so essential to a democratic society and the government’s equally compelling need to protect from disclosure information that could be used by those who wish this nation harm.”
“The rights protected by the First Amendment,” he added, “must at times yield to the need for national security.”
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Though there are points of merit or interest in this editorial, IMHO what it misses is a lot.
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Edward Snowden must be smiling. Fresh from gaining asylum from Vladimir Putin, the self-admitted stealer of U.S. security secrets can now boast that he has caused an American President to retreat on his core powers as Commander in Chief.
That's the import of President Obama's announcement late Friday, before he left for Martha's Vineyard, that he wants to overhaul the intelligence and data collection programs he inherited from George W. Bush and has used since he took office. Mr. Obama invited Congress to tie him and future Presidents down with new oversight and limits on a surveillance program that no one has found to have been abused in a single instance.
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Mr. Obama's overture is dangerous politically and as policy. A President should explain to the American people why these programs are necessary against a terrorist threat that is far from defeated. As Mr. Obama spoke, the U.S. still had 19 embassies or consulates closed around the world for fear against a terror attack. While most have since been reopened, the uses of surveillance in warning of the potential attack would seem to be clear. Surveillance saves American lives.
(Not that we should know this, but the embassy closings were based upon listening in on a conference call of the much of the AQ team, not saving and reading Americans' mail)
Yet Mr. Obama has now joined the debate on his backfoot, conceding that new bureaucratic intrusions are needed to interfere and limit his own war fighters. "It's not enough for me, as President, to have confidence in these programs. The American people need to have confidence in them as well," Mr. Obama said. Well, yes, but a President's job is to give them that confidence, not to undermine that confidence at the start by saying the critics are right.
The President compounded the retreat by saying he wants a new adversarial advocate added to the current surveillance review done by the Foreign Intelligence Surveillance Court, or FISC. Even if the advocate's mandate is supposedly only for "privacy," this is a bad idea.
The President is essentially inviting into his councils someone whose duty is to oppose surveillance requests that are presumably necessary for security. But this is not a debate over whether to introduce New Coke in which you might need a devil's advocate. This is bringing in someone whose only job is to say no, and without responsibility for the consequences.
Such an advocate compounds the problems with the FISC, which is already a judicial intrusion on the executive that diffuses political accountability. This problem was predicted when Jimmy Carter created the FISC process during the last political panic over intelligence, in the 1970s.
Laurence Silberman, a former deputy Attorney General who is now a federal judge, warned in Congressional testimony in 1978 after having inspected the files of J. Edgar Hoover and others that "I am convinced that the single most important deterrent to executive branch malfeasance is the prospect of subsequent disclosure." The introduction of judicial approval into such war powers as surveillance for national security, he said by contrast, makes the executive less accountable because it offers an excuse for bad decisions or abuse: The judges said it was OK.
This is precisely what we have seen in the wake of Mr. Snowden's betrayals, with leaks and liberals blaming the FISC for being too much of a rubber stamp and even blaming Chief Justice John Roberts for naming too many Republicans and prosecutors to the FISC. So the same liberals who created the FISC as a cure-all now blame it for not constraining the President enough. Mr. Obama is also dodging responsibility by now proposing a fix for the FISC, in large part as a way to shield himself from liberal criticism.
Some of us warned in the 1970s, and have warned since, that such an executive branch role for the judiciary violated the Constitution's separation of powers and would lead to precisely such political complications. We even hear complaints now from the left and libertarian right that the FISC's proceedings are secret. No kidding.
These pages warned about that in the 1970s as well. "The element of judicial secrecy is particularly troubling," wrote Robert Bork, the distinguished legal scholar, in a March 9, 1978 Journal op-ed. "It would set apart a group of judges who must operate largely in the dark and create rules known only to themselves. Whatever that may be called, it debases an important idea to term it the rule of law; it is more like the uninformed, unknown and uncontrolled exercise of discretion." We can now add the secrecy complaint about one of its own creations to the list of reasons that the New York Times owes the late Judge Bork an apology.
As an unelected branch of government, the judiciary derives its authority in part because it holds proceedings and settles most disputes in plain public view. Rather than let the judiciary get further embroiled in the political branches, Chief Justice Roberts would help the credibility of judges and courts if he said the judiciary will not support any such rewrite of the FISC and would prefer to end its current participation.
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Not that Mr. Obama's pre-emptive FISC concession will appease the anti-antiterror left and right. They're already pocketing this offer and calling it inadequate. This is because their real goal is to build in so many caveats and burdens on surveillance that it will cease to be a useful antiterror tool.
It's hard to believe a President as politically attuned as Mr. Obama doesn't understand this. He certainly knows how to resist Congressional pressure when he wants to. Yet the passion and argument he brings to bear on domestic issues seems to vanish when he addresses national security.
It's enough to make us wonder if he is reverting in his second term to the Senator who became the darling of the left to outflank Hillary Clinton and win the Democratic nomination. Perhaps the real Barack Obama isn't the President of the first term who used the Bush antiterror policies to pound al Qaeda. Maybe he really believes that he is the only President who can be trusted with such security powers, and so now he is going to use the controversy inspired by Mr. Snowden to hamstring his successors.
Especially if that is true, but even if he is merely trying to appease his left wing, wiser figures in both parties in Congress will need to protect the office of the Presidency and the country from his security retreat.
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Mehanna Ruling Draws Line Between Speech and Material Support
IPT News
November 14, 2013
http://www.investigativeproject.org/4212/mehanna-ruling-draws-line-between-speech
Arguments that terror prosecutions are criminalizing protected speech took another hit Wednesday, when the First Circuit Court of Appeals upheld terror-support convictions against Tarek Mehanna.
Mehanna is serving 17½ years in prison after a Boston jury convicted him in 2011 of conspiracy to provide material support to al-Qaida, conspiracy to commit murder abroad, providing material support to terrorists and lying to federal investigators.
Likening terrorism to a "modern-day equivalent of the bubonic plague," the First Circuit Court of Appeals found jurors had ample grounds to find Mehanna's activities crossed the line into illegal material support. The ruling by Circuit Judge Bruce M. Selya acknowledged a delicate balance between "vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association."
But the evidence supports the verdict and Mehanna's sentence because his work was done in coordination with al-Qaida in an attempt to benefit the terrorist group.
The appellate court at times took a dismissive tone in addressing Mehanna's arguments to overturn his conviction. Some were cast aside as "meritless," while others were described as "convoluted theories" and "fishing in an empty stream."
Arguments offered in amicus, or friend of the court, briefs by Mehanna supporters including the American Civil Liberties Union (ACLU) also found little traction. In many cases, the external briefs raised issues Mehanna had not. "The law is settled that amici cannot ordinarily introduce into a case issues not briefed and argued by the appellant," the ruling said.
Mehanna's case drew sympathy from Islamist groups and others. ACLU Massachusetts Executive Director Nancy Murray wrote after the conviction that Mehanna's case proved that, "There is a Muslim exception to the First Amendment," and that Muslims were being prosecuted for "thought crime."
The Council on American-Islamic Relations (CAIR) Chicago chapter offered a similar claim, publishing an intern's article which cast Mehanna as a victim of overzealous FBI surveillance because he is a Muslim. The Muslim Public Affairs Council (MPAC) reposted a Guardian article on its Facebook and Twitter accounts titled, "Tarek Mehanna: Punished for Speaking Truth to Power."
But the appellate court stood by the jury's verdict in rejecting such arguments.
Mehanna came under investigation in 2006. By then, he already had traveled to Yemen in hopes of reaching a terrorist training camp. When that didn't work, he returned to Sudbury, Mass., where he began translating and posting material supporting al-Qaida and "Salafi-Jihadi perspectives," the court wrote.
Jihad may have violent and non-violent interpretations, the court noted, but "the record makes clear that the defendant used the term to refer to violent jihad — and that is the meaning that we ascribe to it throughout this opinion."
Evidence showed Mehanna's work was "in response to Al-Qa'ida's call," prosecutors wrote, "and that he was pleased to be associated with Al-Qa'ida through his work."
Mehanna's supporters rejected the appellate ruling just as they rejected the verdict. "The fundamental problem with the [appellate] ruling is that it allows the government to prosecute unpopular political speech," ACLU attorney Alex Abdo told the Boston Globe.
The argument that Mehanna merely engaged in protected speech can only be accepted by "looking at the evidence through rose-colored glasses..." the court ruled. "His coconspirators testified that [Mehanna] persistently stated his belief that engaging in jihad was 'a duty upon a Muslim if he's capable of performing it,' and that this duty included committing violence. The evidence further showed that, following United States intervention in Iraq, the defendant concluded 'that America was at war with Islam,' and saw American 'soldiers as being valid targets.'"
This case marks at least the third significant prosecution in which appellate courts dismissed claims by defendants and their allies that free speech was being criminalized. In the case of the Humanitarian Law Project, the U.S. Supreme Court found that free speech rights don't apply when the speech is used in coordination with a terrorist group to provide a service. The Fifth Circuit Court of Appeals similarly found that speech was used to show the defendant's intent to help a known terrorist group in a case involving Hamas support.
Mehanna's attorneys also argued that jurors were unduly influenced by graphic videos and accounts of al-Qaida attacks. The court acknowledged that there is no clear formula to balance the prosecution's need to show the defendant's awareness and intent against "piling on" in a way that prejudices the jury. The trial judge had witnesses describe some of the more graphic imagery rather than show it to jurors, and "evinced a keen awareness of the First Amendment issues" in his rulings and jury instructions, the appellate court ruled.
The material was relevant, however, because Mehanna was "inspired by terrorist rants, developed an anti-American animus, which culminated in his decision to travel to Yemen to join in al-Qa'ida's struggle." And Mehanna claimed that his beliefs precluded him from attacking Americans anywhere. Prosecutors could use the al-Qaida videos and Internet material to show that wasn't true, the court ruled.
"It should not surprise a defendant that proof of his participation in conspiracies to provide material support to terrorist organizations and to kill Americans here and abroad will engender the presentation of evidence offensive to the sensibilities of civilized people...," the ruling said. "Terrorism trials are not to be confused with high tea at Buckingham Palace."
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http://www.lawfareblog.com/2013/11/lawfare-podcast-episode-48-jack-speaks-at-hoover-to-and-on-the-national-security-press/
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It goes well beyond the post 9/11 years, but I think this is a good place for it.
http://www.lawfareblog.com/wiki/the-lawfare-wiki-document-library/#.UshAXrCA3IV
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Good find BD. I've taken the liberty of filling in the Subject line to facilitate finding this post down the road.
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BD et al:
Curious as to the take on this:
http://www.westernjournalism.com/judge-strikes-down-ndaa-rules-obama-must-obey-constitution/
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http://www.nytimes.com/2014/03/12/opinion/the-cia-torture-cover-up.html?emc=edit_th_20140312&nl=todaysheadlines&nlid=49641193&_r=0
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Britain Increasingly Invokes Power to Disown Its Citizens
By KATRIN BENNHOLDAPRIL 9, 2014
NYT
LONDON — The letter informing Mohamed Sakr that he had been stripped of his British citizenship arrived at his family’s house in London in September 2010. Mr. Sakr, born and raised here by British-Egyptian parents, was in Somalia at the time and was suspected by Western intelligence agencies of being a senior figure in the Shabab, a terrorist group linked to Al Qaeda.
Seventeen months later, an American drone streaked out of the sky in the Lower Shabelle region of Somalia and killed Mr. Sakr. An intelligence official quoted in news reports called him a “very senior Egyptian,” though he never held an Egyptian passport. A childhood friend of Mr. Sakr, Bilal al-Berjawi, a Lebanese-Briton also stripped of his citizenship by the British government, was killed in a drone strike a month earlier, after having escaped an attack in June 2011.
Senior American and British officials said there was no link between the British government’s decision to strip the men of their citizenship and the subsequent drone strikes against them, though they said the same intelligence may have led to both actions.
But the sequence of events effectively allowed the British authorities to sidestep questions about due process under British law, mirroring the debate in the United States over the rights of American citizens who are deemed terrorist threats. The United States and Britain have a long history of intelligence sharing and cooperation in fighting terrorist threats.
The cases of Mr. Sakr and Mr. Berjawi are among the most significant relating to the British government’s growing use of its ability to strip citizenship and its associated rights from some Britons at the stroke of a pen, without any public hearing and with only after-the-fact involvement by the courts.
Now, faced with concerns that the steady stream of British Muslims traveling to fight in Syria could pose a threat on their return, Prime Minister David Cameron’s government is pushing legislation that would give it additional flexibility to use the power, which among other things keeps terrorism suspects from re-entering the country.
In many Western countries, including the United States, citizenship is considered a right that cannot be taken away except in very limited cases, such as serving in another nation’s military or having obtained citizenship fraudulently. Others strip citizenship from people who take another passport. Britain, along with Israel, is one of the few countries that can revoke the citizenship of dual nationals — even if they are native born — if they are suspected or convicted of terrorist offenses or acts of disloyalty.
Britain is seeking to expand the practice to naturalized citizens who have no other nationality and would be rendered stateless. Citizenship, in the words of Home Secretary Theresa May, is a “privilege, not a right.”
The issue is beginning to stir public debate. A government-sponsored amendment expanding the practice to naturalized citizens who have no other nationality sailed through the House of Commons this year. But on Monday, in a rare act of parliamentary rebellion, the House of Lords rejected the amendment and asked instead for a joint committee of both houses to examine whether the additional powers are necessary. The draft legislation will now return to the House of Commons.
Continue reading the main story
Britain typically strips people of citizenship when they are outside the country. The procedure requires only that the home secretary find that stripping someone of citizenship would be “conducive to the public good,” then sign a deprivation order and send a letter to the person’s last known address. Loss of citizenship is effective immediately. It can be challenged in court, but that is a difficult task in most cases, given the inability of a targeted person to return to Britain for any proceedings.
“Deprivation can help disrupt the terrorist threat,” John Taylor, the junior minister for criminal information, said in a recent parliamentary debate. Mr. Taylor said the government refused to be “at the whim of other countries’ nationality laws” or the view of a court.
Other countries are watching closely. A Canadian bill giving the government some deprivation powers is now before Parliament. Australia and the Netherlands are considering drafting legislation.
In Britain, there is some unease at the implications.
Mr. Sakr, who was killed in February 2012, had appealed on the grounds that the British government was rendering him stateless. He had never sought an Egyptian passport despite being eligible for one because of his parents’ heritage. He eventually abandoned his appeal for fear that frequent communication with his lawyer on a cellphone or computer would make him vulnerable to a drone strike by giving away his location, according to his lawyer at the time, Saghir Hussain.
Mr. Berjawi was killed in January 2012, hours after using a cellphone to call his wife in a London hospital on the day their son was born.
In a case involving the United States, a Somali-born Briton, Mahdi Hashi, was stripped of his British citizenship in June 2012 and captured and detained on an American base in Djibouti two months later. He was taken to the United States, where he awaits trial on terrorism-related charges.
“The sequence of events does not look accidental,” said Mr. Hussain, who is also representing Mr. Hashi in a separate appeal against his deprivation order.
Forty-two people have been stripped of their British citizenship since 2006, 20 of them last year, according to a freedom of information request filed by the Bureau of Investigative Journalism, a research organization at City University London that first drew attention to the practice in December 2012. In Israel, by comparison, the power to revoke citizenship has been used only twice since 2000, according to the Interior Ministry there.
*Those advocating or applauding the actions of the British Government, in contravention of their Human Rights treaty obligations, assume that...
*You are not owed the right to remain a citizen if you plot against your home country. It is that simple. A country has the right to...
*Anyone who conspires with violent terrorists has already disowned the essential structure of Western democracies. They deserve to lose...
Mr. Cameron’s government, in power since 2010, has stripped more people of their citizenship than all the other British governments since World War II combined, said Matthew J. Gibney, an expert on citizenship at the University of Oxford.
During World War I, anti-German sentiment and concern over foreign spies first made citizenship deprivation a popular tool both here and in the United States.
The practice fell into disuse after World War II, when it became associated with totalitarian regimes like Nazi Germany. A landmark ruling by the United States Supreme Court in 1958 struck down a law that allowed citizenship deprivation as a punishment. Proposed legislation in Congress in 2010 to reinstate the practice did not win enough support.
In Britain, the power remained on the books but was little used until after the attacks of Sept. 11, 2001. Powers have been gradually expanded since then.
The most significant expansion came in 2006, after the July 7, 2005, attacks on the London transportation system that killed 56 people, including four bombers. The previous standard — whether someone’s conduct was “seriously prejudicial to the vital interests” of the country — was replaced with more elastic wording that allows deprivation on the grounds that it is “conducive to the public good.”
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The 2006 legislation was shaped by the case of Abu Hamza al-Masri, a British-Egyptian cleric the government had been seeking to strip of citizenship since 2003. He was deprived of his Egyptian citizenship while his appeal against the British order was pending, forcing the British government to drop its efforts. Mr. Masri remains a British citizen, but has since been extradited to the United States to face terrorism charges.
The latest proposed amendment may also have been inspired by a specific case in which the government did not get its way.
Hilal al-Jedda, an Iraqi-born naturalized Briton, lost his British nationality in 2007 after being detained in Iraq on suspicion of smuggling explosives.
Out of 15 appeals, his is the only one to have succeeded. Britain’s Supreme Court ruled in October that Mr. Jedda could not be deprived of his British nationality because that action would make him stateless: Iraq bans dual citizenship and canceled Mr. Jedda’s passport in 2000 when he was naturalized in Britain. The British government was forced to reinstate his citizenship on Oct. 9, 2013.
But on Nov. 1, Mr. Jedda was stripped of his nationality a second time, and in January the Home Office rushed before Parliament the amendment allowing deprivation even if it results in statelessness, provided that a suspect’s citizenship is “seriously prejudicial to the vital interests of the United Kingdom.”
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This is from Pravda on the Hudson so caveat lector:
WASHINGTON — Attorney General Eric H. Holder Jr.’s long-awaited revisions to the Justice Department’s racial profiling rules would allow the F.B.I. to continue many, if not all, of the tactics opposed by civil rights groups, such as mapping ethnic populations and using that data to recruit informants and open investigations.
The new rules, which are in draft form, expand the definition of prohibited profiling to include not just race, but religion, national origin, gender and sexual orientation. And they increase the standards that agents must meet before considering those factors. But they do not change the way the F.B.I. uses nationality to map neighborhoods, recruit informants, or look for foreign spies, according to several current and former United States officials either involved in the policy revisions or briefed on them.
While the draft rules allow F.B.I. mapping to continue, they would eliminate the broad national security exemption that former Attorney General John Ashcroft put in place. For Mr. Holder, who has made civil rights a central issue of his five years in office, the draft rules represent a compromise between his desire to protect the rights of minorities and the concern of career national security officials that they would be hindered in their efforts to combat terrorism.
The Justice Department has been reworking the policy for nearly five years, and civil rights groups hope it will curtail some of the authority granted to the F.B.I. in the aftermath of the 9/11 terrorist attacks. Muslims, in particular, say federal agents have unfairly singled them out for investigation. The officials who described the draft rules did so on the condition of anonymity because they were not authorized to discuss them.
Mr. Holder, who officials say has been the driving force behind the rule change, gave a personal account of racial profiling on Wednesday before the National Action Network, the civil rights group founded by the Rev. Al Sharpton.
“Decades ago, the reality of racial profiling drove my father to sit down and talk with me about how, as a young black man, I should interact with the police if I was ever stopped or confronted in a way I felt was unwarranted,” he said.
Throughout the review process, however, the attorney general and his civil rights lawyers ran up against a reality: Making the F.B.I. entirely blind to nationality would fundamentally change the government’s approach to national security.
The Bush administration banned racial profiling in 2003, but that did not apply to national security investigations. Since then, the F.B.I. adopted internal rules that prohibited agents from making race or religion and nationality the “sole factor” for its investigative decisions.
Civil rights groups see that as a loophole that allows the government to collect information about Muslims without evidence of wrongdoing.
Intelligence officials see it as an essential tool. They say, for example, that an F.B.I. agent investigating the Shabab, a Somali militant group, must be able to find out whether a state has a large Somali population and, if so, where it is.
As written, the new rules are unlikely to satisfy civil rights groups and some of the administration’s liberal allies in Congress. Senator Richard J. Durbin, Democrat of Illinois, has said the existing rules “are a license to profile.”
The Justice Department rules would also apply to the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, Firearms and Explosives, but it is the F.B.I. that takes the lead on most national security investigations.
Farhana Khera, the president of Muslim Advocates, said expanding the rules to cover nationality and religion would be a significant step forward. But she opposed any rule that allowed the F.B.I. to continue what it calls “domain mapping” — using census data, public records and law enforcement data to build maps of ethnic communities. Agents use this data to help assess threats and locate informants.
“It would certainly mean we have work to do,” said Ms. Khera, who was one of several rights advocates who met with Mr. Holder about the profiling rules last week. “We want an effective ban on all forms of profiling.”
Before federal agents could consider religion or other factors in their investigations under the new rules, they would need to justify it based on the urgency and totality of the threat and “the nature of the harm to be averted,” according to an official who has seen the draft.
That would not prevent agents from considering religion or nationality, but officials said the goal was to establish clear rules that made doing so rare.
Department officials were prepared to announce the new rules soon and had told Congress to expect them imminently. But recently, the White House intervened and told Mr. Holder to coordinate a larger review of racial profiling that includes the Department of Homeland Security, officials said.
That is significant because the Bush-era racial profiling rules also contained an exception for border investigations, which are overseen by the department. Hispanic advocacy groups are as opposed to that caveat as Muslims are to the exception for national security investigations.
Mr. Holder cannot tell Homeland Security what rules to follow. But he has told colleagues that he believes border agents can conduct their investigations without profiling and by following the same rules as the Justice Department, one law enforcement official said.
It is not clear how long this broader review will take, but for now it has delayed release of the Justice Department rules.
Relations between the F.B.I. and Muslims have at times been strained since the weeks after 9/11, when agents arrested dozens of Muslim men who had no ties to terrorism.
Since then, the F.B.I. has adopted new policies and invested heavily to explain them to Muslim populations. Senior agents speak at mosques and meet regularly with imams and leaders of Muslim nonprofit groups, but suspicions remain.
Internal F.B.I. documents revealed that agents used their relationship-building visits at mosques as a way to gather intelligence. Leaked training materials, which the F.B.I. quickly disavowed, described the Prophet Muhammad as a cult leader and warned that mainstream Muslims shared the same “strategic themes” as terrorists.
The draft rules would establish a program to track profiling complaints. The current process is less organized, making it difficult to track patterns in complaints or how they are resolved.
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http://www.theguardian.com/world/2014/apr/22/911-prosecutor-asks-for-more-time-over-fbi-spying-claims
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http://justsecurity.org/2014/04/23/justice-breyers-intriguing-suggestion-hussain-sign-habeas-challenges-come/
From the article:
In the post-Boumediene habeas cases, the government has argued, and the habeas courts have agreed, that being part of al Qaeda or Taliban forces is, in and of itself, sufficient for AUMF detention. And that’s (at most) all the government demonstrated in Hussain — that the individual had been a part of Taliban forces. The government did not try to demonstrate that Hussain had engaged in any belligerent acts or otherwise been involved in the armed conflict against the United States.
As Justice Breyer notes, however, the Supreme Court has never actually opined on whether being a member of Taliban forces, standing alone, is sufficient for AUMF detention. Justice O’Connor’s controlling plurality opinion in the leading case, Hamdi v. Rumsfeld, held only that the AUMF authorized military detention of (in her words) “an individual who . . . was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there” (emphasis added).
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Show Us the Drone Memos
By RAND PAULMAY 11, 2014
WASHINGTON — I BELIEVE that killing an American citizen without a trial is an extraordinary concept and deserves serious debate. I can’t imagine appointing someone to the federal bench, one level below the Supreme Court, without fully understanding that person’s views concerning the extrajudicial killing of American citizens.
But President Obama is seeking to do just that. He has nominated David J. Barron, a Harvard law professor and a former acting assistant attorney general, to a seat on the United States Court of Appeals for the First Circuit.
While he was an official in the Justice Department’s Office of Legal Counsel, Mr. Barron wrote at least two legal memos justifying the execution without a trial of an American citizen abroad. Now Mr. Obama is refusing to share that legal argument with the American people.
On April 30, I wrote to the Senate majority leader, Harry Reid, urging him to delay this nomination, pending a court-ordered disclosure of the first memo I knew about. Since that letter, I have learned more. The American Civil Liberties Union sent a letter to all senators on May 6, noting that in the view of the Senate Intelligence Committee chairwoman, Dianne Feinstein, “there are at least eleven OLC opinions on the targeted killing or drone program.” It has not been established whether Mr. Barron wrote all those memos, but we do know that his controversial classified opinions provided the president with a legal argument and justification to target an American citizen for execution without a trial by jury or due process.
I believe that all senators should have access to all of these opinions. Furthermore, the American people deserve to see redacted versions of these memos so that they can understand the Obama administration’s legal justification for this extraordinary exercise of executive power. The White House may invoke national security against disclosure, but legal arguments that affect the rights of every American should not have the privilege of secrecy.
I agree with the A.C.L.U. that “no senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.” The A.C.L.U. cites the fact that in modern history, a presidential order to kill an American citizen away from a battlefield is unprecedented.
The Bill of Rights is clear. The Fifth Amendment provides that no one can be “deprived of life, liberty, or property, without due process of law.” The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” as well as the right to be informed of all charges and have access to legal counsel. These are fundamental rights that cannot be waived with a presidential pen.
In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.
No one argues that Americans who commit treason shouldn’t be punished. The maximum penalty for treason is death. But the Constitution specifies the process necessary to convict.
Anwar al-Awlaki was an American citizen who was subject to a kill order from Mr. Obama, and was killed in 2011 in Yemen by a missile fired from a drone. I don’t doubt that Mr. Awlaki committed treason and deserved the most severe punishment. Under our Constitution, he should have been tried — in absentia, if necessary — and allowed a legal defense. If he had been convicted and sentenced to death, then the execution of that sentence, whether by drone or by injection, would not have been an issue.
But this new legal standard does not apply merely to a despicable human being who wanted to harm the United States. The Obama administration has established a legal justification that applies to every American citizen, whether in Yemen, Germany or Canada.
Defending the rights of all American citizens to a trial by jury is a core value of our Constitution. Those who would make exceptions for killing accused American citizens without trial should give thought to the times in our history when either prejudice or fear allowed us to forget due process. During World War I, our nation convicted and imprisoned Americans who voiced opposition to the war. During World War II, the government interned Japanese-Americans.
The rule of law exists to protect those who are minorities by virtue of their skin color or their beliefs. That is why I am fighting this nomination. And I will do so until Mr. Barron frankly discusses his opinions on executing Americans without trial, and until the American people are able to participate in one of the most consequential debates in our history.
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http://www.dailymail.co.uk/news/article-2648846/Pentagon-sources-Obama-ignored-two-chances-rescue-Bergdahl-ground-WANTED-terror-trade-help-close-Guantanamo-Bay.html#ixzz33mc98vB8
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Deporting Al-Arian May Be Easier Said Than Done
IPT News
July 2, 2014
http://www.investigativeproject.org/4444/deporting-al-arian-may-be-easier-said-than-done
In dropping their criminal contempt case last week against Sami Al-Arian, a member of the Palestinian Islamic Jihad's board of directors during the 1990s, prosecutors said they will seek to deport him under terms of a related 2006 plea agreement.
That may not happen anytime soon. Similar deportation cases have ended successfully, but took several years to complete. In the interim, Al-Arian is free to resume a normal life, and return to political activity, something he already started to do at pro-Muslim Brotherhood events even under terms of pre-trial release.
Nothing was happening in the contempt case, which had been frozen by U.S. District Judge Leonie Brinkema for five years as she found herself unable to grant a defense motion to dismiss and unwilling to let it proceed to trial. She offered no signs that would change. Twice, she promised a written order on the pending motions keeping the case from going to trial. It never materialized.
The contempt case grew out of Al-Arian's refusal to testify before a federal grand jury in Northern Virginia that was investigating possible terror financing by a group that helped fund Al-Arian's operations. He was given immunity for his truthful testimony, but still refused, claiming that his 2006 plea agreement to conspiring to provide services to the PIJ included a government promise that his "cooperation" with it was over.
There was no such language in his plea agreement, but he argued that the absence of a cooperation clause proved his claim. A grand jury subpoena is compelled testimony, not voluntary. And, as U.S. District Judge James Moody noted in a hearing on the matter, before his plea "Dr. Al-Arian could have been subpoenaed to testify as a witness just like anybody else in this country; right?"
The defense argument amounted to giving Al-Arian a unique exemption because he became a convicted felon. Appellate courts in the 4th and 11th circuits rejected Al-Arian's claims. He prevailed in the end by refusing to budge, an awful precedent for prosecutors trying to compel testimony from hostile witnesses.
That example grows worse if Al-Arian skirts his plea's specific language calling for his eventual deportation.
Removing stateless Palestinians is difficult, however, especially in a case involving a man who served on a terrorist group's Shura council. It requires travel documents and a country willing to accept him.
But it has been done. In 2012, Bayan and Basman Elashi were deported three years after a final order was issued against them. Both were part of Infocom, a webhosting company in Richardson Texas, connected to Hamas political leader Mousa Abu Marzook. Both were convicted of doing business with a terrorist and conspiring to violate export regulations.
The Elashi brothers made their way to Gaza by way of Egypt.
And two of Al-Arian's associates were deported to the West Bank. Sameeh Hammoudeh, a co-defendant in Al-Arian's terror support trial, was deported in 2006 under terms in a separate tax case. And Fawaz Damra, a fiery imam who raised money for the PIJ, urging that checks be written to Al-Arian's charity, was deported in 2007 after being convicted three years earlier of immigration fraud. Damra introduced Al-Arian as head of "the active arm of the Islamic Jihad Movement in Palestine" during one of their fundraisers.
The Cleveland Plain Dealer later found him selling drapes and doing some teaching in Ramallah.
Hammoudeh's was an exceptionally fast removal. The other cases took years to complete. For Al-Arian, that could mean years to take advantage of his status as a hero to American Islamists and their allies. The contempt case's dismissal was a cause for celebration among those supporters. The Muslim Public Affairs Council (MPAC), which casts itself as a moderate political organization and enjoys close ties to the White House called it "a joyous day." The Council on American-Islamic Relations (CAIR), which was created by a Muslim Brotherhood support network for Hamas in America, first offered praise to God for the case's demise. Then, Executive Director Nihad Awad followed up with a statement noting CAIR's longtime support for "Dr. Al-Arian and his family through this harrowing trial ... This is a victory for the entire community, but of course most of all the Al-Arian family."
On his Twitter feed, Awad posted a similar message in English. In Arabic, however, he wrote that Al-Arian endured "11 years of suffering because of the Israeli lobby."
Journalist Glenn Greenwald, recipient of tens of thousands of secret NSA files stolen by Edward Snowden, called the case "One of the worst post-9/11 persecutions."
None of these happy supporters acknowledged Al-Arian's documented role on the PIJ board. Wiretaps showed that he spent the bulk of 1994 arguing with handlers in Iran to keep the PIJ from imploding. Al-Arian's commitment to violent jihad extended beyond running "the active arm of the Islamic Jihad Movement in Palestine." He used the occasion of a double-suicide bombing to write a solicitation for donations for "the jihad effort in Palestine so that operations such as these can continue."
He arranged to bring Ramadan Shallah into the United States on a work visa, and then feigned shock when Shallah emerged in 1995 as the new PIJ secretary general.
To supporters, however, he remains an activist and civil rights advocate. If he is deported – something he promised to help facilitate in his 2006 guilty plea and where willful obstruction could now be a separate criminal offense – those same advocates likely will decry it as an injustice.
Al-Arian was born in Kuwait and raised in Egypt. Neither is likely to want him back, especially Egypt, which waged a violent crackdown on the Muslim Brotherhood and staged mass arrests.
The United States may have options, however. Start with the Palestinian Authority, currently functioning as a unified partnership between Fatah, which dominates the West Bank, and Hamas in Gaza. The U.S. did not break relations with the PA or cut its funding when Hamas, a designated terrorist group, joined the government.
Task the PA with taking Al-Arian in, either in the West Bank or Gaza. The trick would be in getting him past entry points in Egypt or Israel, but the Damra and Elashi cases are examples of previous successes. Another U.S. "ally," the Gulf emirate of Qatar, provided refuge for Hamas political leader Khaled Meshaal.
Al-Arian flouted the system by concocting an imaginary benefit allowing him to rebuff a grand jury subpoena and insisting it was real even if no one could see it. He must not be further rewarded with the comforts and privileges of life here.
As Judge Moody said in sentencing Al-Arian in 2006, "The evidence was clear in this case that you were a leader of the Palestinian Islamic Jihad. You were on the board of directors and an officer, the secretary. Directors control the actions of an organization, even the PIJ; and you were an active leader."
Right now, he's free in America. The Department of Homeland Security needs to do everything it can to send him packing.
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Verdict expected this week...
http://www.boston.com/news/local/massachusetts/2014/07/14/live-updates-from-courtroom-tsarnaev-friend-trial/pmSRzLwtWsls0LRoZ6wDrK/story.html
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The Tortuous Politics of 'Torture'
Dianne Feinstein's vendetta against the CIA does not serve the country's national security.
By
Kimberley A. Strassel
Aug. 7, 2014 7:22 p.m. ET
Long ago, in a presidency far, far away, congressional Democrats were briefed on the CIA's post-9/11 counterterrorism efforts. They raised no objections. Now, in a presidency that seemingly never ends, the party is still torturing the nation with the political consequences.
That's the context in which to view Senate Intelligence Chairwoman Dianne Feinstein's ugly (and unnecessary) brawl with the CIA over her coming interrogation report. Democrats have for months leaked a stream of accusations against the CIA, claiming it hacked Senate computers and continues to try to hide the findings of the report. These titillating nuggets have successfully obscured the bigger point: Ms. Feinstein and her fellow Democrats—13 years on from the Twin Towers collapse—are still playing "torture" politics, albeit with increasingly worrisome results.
All this started when Nancy Pelosi claimed in 2009 that the CIA failed to brief her in 2002 about its enhanced-interrogation program. Details then flooded out, including embarrassing facts about just how repeatedly and thoroughly Democratic leaders and Intelligence committee members in both chambers had been briefed—including Mrs. Pelosi.
"Among those being briefed . . . the reaction in the room was not just approval, but encouragement," recalled former CIA Director Porter Goss in 2007. No surprise either, given that Democrats were also briefed on the success the program proved in squeezing vital information from hardened al Qaeda leaders. This is why no Democrat moved to pull funding for these operations or spoke out on the floor of Congress.
Enlarge Image
Senate Intelligence Committee Chairwoman Dianne Feinstein, June 5. Getty Images
None of this sat well with the party's liberal base, and Democrats saw political gain in painting President Bush as "torturer" in chief—so they became obsessed with criticizing policies they'd supported. They held hearings, demanded testimony and assailed the CIA. They drafted legislation to disclose sensitive operations. Sen. Carl Levin ordered up mountains of documents. Barack Obama made it a campaign theme in 2008, calling for a "commander in chief who has never wavered on whether or not it is acceptable for America to torture." His own Justice Department launched a criminal probe in 2009.
Ms. Feinstein's 6,200 page "torture" report is the latest escapade. She launched her investigation in 2009 after she assumed the helm of Intelligence, and well after the interrogation debate had been done to death in the public sphere. Her partisan approach quickly alienated Republicans and caused a disabling fracture in a committee that had been known for outbreaks of seriousness.
The report is reputedly so factually flawed in its findings that the interrogation program was ineffective that committee Republicans have felt compelled to ready their own rebuttal. Intelligence committee Democrats are leaking like sieves, giving the committee a new reputation as the least trustworthy shop in D.C.—no mean feat. The divisions have roiled other vital committee work—like its cybersecurity bill. All this comes at a time when the committee is under fierce pressure by both the liberal left and libertarian right to dismantle other key antiterror programs, and when it needs unity.
Democrats have long specialized in undercutting the intelligence agencies that keep them safe, yet Ms. Feinstein's "torture" vendetta comes at a moment when the intelligence community is already severely bloodied by the Snowden leaks. She demanded that the CIA humbly submit to the "torture" whipping she's administering, and that it meekly ignore the unauthorized aspects of her own investigation (like her staffers filching documents from a CIA facility). When it didn't, she responded by leveling cavalier accusations of spying misconduct, knowing that the agency, which takes its own secrecy oath seriously, would struggle to defend itself. The CIA could have handled the situation better, though it was never a fair fight.
This partisan circus has now gone so far that some Democrats are howling for the resignation of CIA Director John Brennan. The State Department has had to increase security at American embassies, fearing fallout from the report's coming release. So Democrats are willing to rip apart a front-line agency fighting against a renewed terror threat, and put Americans at risk, on behalf of a warmed-over, partisan report that rehashes a years-old debate, one that started in an attempt to give cover to Mrs. Pelosi's liberal reputation.
This is dangerous, because there doesn't seem to be anyone left to put back together a demoralized and beleaguered intelligence apparatus. Too many Republicans have been content to sit back and watch Democratic senators feud with a Democratic administration's CIA. And the president shows no interest in publicly supporting any antiterror programs, to the degree he has even thought them through. While defending Mr. Brennan, Mr. Obama managed to condemn "torture" while simultaneously lecturing Americans not to be "sanctimonious" against CIA officials doing their "job." Sort through that one.
The Feinstein report won't offer any answers. We've been here before, year after year after year.
Write to kim@wsj.com
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http://www.sfgate.com/politics/article/Feinstein-winning-fight-with-CIA-Obama-over-5679304.php
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It’s Time to Kick ISIS Members Out of America
Posted By Daniel Greenfield On September 5, 2014
Every week brings new reports of Muslims in America flocking to join ISIS. Those who aren’t killed in battle will eventually return to New York, to Los Angeles and to Minneapolis–Saint Paul.
And they will stop being Iraq’s problem and become our problem.
ISIS is more than just another terrorist group. It is now an Islamic State. Its followers and allied militias pledge to obey the Caliph of ISIS and reject all allegiances to other states and entities. Western ISIS recruits burn their passports to show that they are no longer citizens of those countries.
Like most Salafists, ISIS members see our system of law and government as idolatry and heresy. Fort Hood Jihadist Nidal Hasan, who recently applied to join ISIS, had earlier written that he would “renounce any oaths of allegiances that require me to support/defend any man made constitution (like the Constitution of the United States) over the commandments mandated in Islam.”
“I therefore formally renounce my oath of office as well as any other implicit or explicit oaths I have made in the past … This includes my oath of U.S. citizenship,” Hasan declared.
By his own admission, Nidal Hasan is no longer a United States citizen. He should be promptly denaturalized. So should every ISIS member and anyone who supports the Islamic State.
The oath of citizenship that Hasan was retroactively rejecting states, “I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen.”
ISIS members have pledged their allegiance to a foreign prince and a foreign state. Denaturalizing them should be a mere formality.
Anwar Al-Awlaki, Hasan’s mentor, whose American citizenship became such an issue for the left when he was killed in a drone strike, was clear in his lectures that he was at war with America, that “Muslims in the West should see their stay there as temporary” before leaving to build an Islamic State in the Middle East and that Muslims shouldn’t even vote in America because they would be participating in “a disbelieving system, in a disbelieving country.”
Like Hasan, he did not consider himself an American in any way, shape or form.
In the past the United States had denaturalized Nazis and Communists and even specifically targeted foreign agitators linked to the Nazis and Communists, denaturalized them and then deported them.
Recently Obama Inc. found the time to have two former Guatemalan soldiers accused of committing atrocities against a village linked to Communist guerrillas in the so-called Dos Erres massacre back in the 1980s stripped of their citizenship.
Other denaturalization targets under his administration included two Serbians, an Ethiopian Marxist who took part in the 70s Red Terror and a woman involved in the Rwandan genocide.
None of the denaturalized were Muslim terrorists posing a current national security threat. And yet if we are to have a strategy against ISIS, denaturalizing its members will accomplish more than air strikes.
The modern Jihadist threat had at its core a group of fighters who trained and fought in Afghanistan during and after the Soviet invasion. These fighters went on to lead terrorist groups and stage attacks. But the battlefields of the Arab Spring will produce a new wave of threats on an unprecedented scale. Muslims in the West, especially converts to Islam, who have gone to join ISIS will return with training, battlefield experience and a plan. It’s far more urgent to keep them out than to deport war criminals.
A serious ISIS strategy has to address not the flow of fighters from the United States, as Obama has proposed to do, but the flow of fighters coming into the United States. If ISIS members want to travel to fight in Iraq and Syria, they should be allowed to do so.
By joining the Islamic State, they have disavowed their allegiance to the United States. Their citizenship is now only a passport of convenience that they will burn as soon as they make their way into Syria.
It’s far more important to keep them from coming back than to keep them from leaving.
If the United States can denaturalize foreign soldiers for being part of units linked to war crimes, as it has under Obama, it has the obligation to pursue the denaturalization of anyone who chooses to affiliate with an organization such as ISIS which has committed undeniable war crimes. While the legal grounds for denaturalization won’t be the same since some of those being denaturalized did not have terrorist histories and may have even been born in the United States, the policy basis is clear.
Despite the various dubious Supreme Court attempts to strike down the denaturalization power of Congress, there are still clear standards for denaturalization. Joseph Lieberman and Scott Brown introduced the Terrorist Expatriation Act back in 2010 which would have added providing material support to terrorists as a basis for denaturalization leading to hysterical reactions on the left and the right. But such an explicit addition isn’t strictly necessary; particularly in the case of the Islamic State.
Under the Immigration and Naturalization Act anyone voluntarily “committing any act of treason”, bearing arms against the United States or plotting to conquer it will lose his citizenship. While establishing this has proven tricky in the past due to the preponderance of evidence standard, ISIS represents a clear case because its fighters travel voluntarily from the United States for that purpose and because the Islamic State’s creed explicitly repudiates citizenship in anything but the new Caliphate.
It is clearly apparent that any American citizen joining ISIS intends to abandon his citizenship. He is not only serving in a foreign army, but he is joining an organization whose very reason for existence is precluded on a rejection of states and manmade documents such as the United States Constitution.
Furthermore if Obama were to admit that the United States is at war with ISIS, its fighters would also be guilty of bearing arms against the United States. However even without this admission, ISIS has made sufficient threats and has now murdered two Americans. There is no serious doubt that we are at war.
Unlike the Taliban, some of whose American members argued that they had not originally been in conflict with the United States, ISIS originated in conflict with the United States and its creed explicitly calls for the perpetuation of conflict not only with the United States, but with the rest of the world.
The Islamic State’s founding declaration urged all the Muslims of the world to gather to it, “So rush O Muslims and gather around your Caliphate, so that you may return as you once were for ages, kings of the earth and knights of war… By Allah, if you disbelieve in democracy, secularism, nationalism, as well as all the other garbage and ideas from the west, and rush to your religion and creed, then by Allah, you will own the earth, and the east and west will submit to you.”
The Muslim fighters rushing to join ISIS hoping to be its “kings of the earth” and “knights of war” and to force the east and west to submit to it are at war with the United States. They have given their allegiance to a foreign power that promises them that they will rule over Americans.
Both attacks on the World Trade Center were carried out by terrorists who should not have been allowed into the United States. It’s time we learned the lessons of those attacks.
ISIS members and supporters like Nidal Hasan are eager to abandon their American citizenship. It’s our own government that is standing in the way.
It’s useless to bomb ISIS fighters in Iraq and Syria, if we let them march through our airports.
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Obama Weighs Options to Close Guantanamo
Any Move to Override Congressional Ban on Bringing Detainees to U.S. Would Spark Fight
By Carol E. Lee and Jess Bravin
Oct. 9, 2014 8:02 p.m. ET
The U.S. facility in Guantanamo Bay, Cuba, currently has 149 inmates detained in connection with the U.S. war on terrorism. Agence France-Presse/Getty Images
The White House is drafting options that would allow President Barack Obama to close the detention facility in Guantanamo Bay, Cuba, by overriding a congressional ban on bringing detainees to the U.S., senior administration officials said.
Such a move would be the latest and potentially most dramatic use of executive power by the president in his second term. It would likely provoke a sharp reaction from lawmakers, who have repeatedly barred the transfer of detainees to the U.S.
The discussions underscore the president’s determination to follow through on an early campaign promise before he leaves the White House, officials said, despite the formidable domestic and international obstacles in the way.
Administration officials say Mr. Obama strongly prefers a legislative solution over going around Congress. At the same time, a senior administration official said Mr. Obama is “unwavering in his commitment” to closing the prison—which currently has 149 inmates detained in connection with the nation’s post-9/11 war on terrorism—and wants to have all potential options available on an issue he sees as part of his legacy.
The White House has sought to make executive actions a centerpiece of its policy agenda, in areas including the minimum wage, antidiscrimination rules and, potentially, immigration. House Republicans, in response, are seeking to sue Mr. Obama, saying he overstepped his legal authority in bypassing Congress.
Unilateral action “would ignite a political firestorm, even if it’s the best resolution for the Guantanamo problem,” said American University law professor Stephen Vladeck. Republicans are sure to oppose it, while Democrats could be split, he said.
White House officials have concluded Mr. Obama likely has two options for closing Guantanamo, should Congress extend the restrictions, which it could do after the midterm elections.
He could veto the annual bill setting military policy, known as the National Defense Authorization Act, in which the ban on transferring detainees to the U.S. is written. While the veto wouldn’t directly affect military funding, such a high-stakes confrontation with Congress carries significant political risks.
A second option would be for Mr. Obama to sign the bill while declaring restrictions on the transfer of Guantanamo prisoners an infringement of his powers as commander in chief, as he has done previously. Presidents of both parties have used such signing statements to clarify their understanding of legislative measures or put Congress on notice that they wouldn’t comply with provisions they consider infringements of executive power.
The core obstacle standing in the White House’s way is Congress’s move in 2010 to ban the transfer of Guantanamo detainees to the U.S. That legislation was passed after the administration sparked a backlash when it proposed relocating detainees to a maximum-security prison in Thomson, Ill.
The administration hopes to tamp down controversy by reducing the inmate population by at least half through quickly transferring Guantanamo detainees cleared for release.
On Thursday, Estonia, which Mr. Obama visited last month, announced it would accept one detainee. Officials said additional transfers are in the works.
“We are very pleased with the support from our friends and allies, and we are very grateful to them,” said Clifford Sloan, the State Department envoy for Guantanamo closure.
Nonetheless, administration officials say the detention center can’t be closed without sending at least some of the remaining inmates to the U.S. mainland.
Mr. Obama said in his 2014 State of the Union address that “this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay.” The president now expects to miss that deadline, administration officials say, a departure from earlier this summer when White House aides were still saying it was possible.
Mr. Obama’s decision in May to exchange Guantanamo detainees for an American prisoner of war, Sgt. Bowe Bergdahl, without the required 30-day advance congressional notice drew a backlash on the Hill. The start of a U.S.-led fight against the Islamic State militant group has similarly overshadowed any appetite for a repeal of the ban.
A Gallup poll released in June said 29% of Americans support closing the detention center at Guantanamo Bay and transferring detainees to U.S. prisons, while 66% oppose the idea.
Most of the nearly 800 men held at Guantanamo since it opened in 2002 were released during the George W. Bush administration. Of the 149 who remain, 79 have been approved for transfer by national-security officials but remain because of political or diplomatic obstacles in repatriating them.
Another 37 have been designated for continued detention without trial. These are men considered too dangerous to release, yet against whom the government lacks usable evidence. A further 23 have been referred for prosecution by military commission, where 10 detainees, including Khalid Sheikh Mohammed and four co-defendants accused of orchestrating the Sept. 11 attacks, are in pretrial hearings.
Officials, who declined to say where detainees might be housed if taken to the mainland, said the U.S. has ample space in its prisons for several dozen high-security prisoners. The administration has reviewed several facilities that could house the remaining detainees, with the military brig at Charleston, S.C., considered the most likely.
Since winning re-election, Mr. Obama has made several moves designed to speed the prison’s closure. He named envoys at the State and Defense Departments to help secure the transfer of detainees to foreign countries. He lifted the administration’s moratorium on sending detainees to Yemen, which counts 58 nationals among those cleared for transfer.
Part of the administration’s strategy for reducing political opposition to lifting the ban on transferring detainees is to whittle the number in Guantanamo to the point where the cost of maintaining the installation is unpalatable. The annual cost per inmate is $2.7 million, in contrast with $78,000 at a supermax prison on the mainland, officials say.
“As the number becomes smaller at Guantanamo, the case for domestic transfers…becomes that much stronger,” a senior administration official said.
Prisoner transfers to foreign countries have slowed this year. A transfer of six Guantanamo Bay prisoners to Uruguay is tied up in that country’s Oct. 26 presidential elections. The current president has agreed to accept the detainees, while his opponent has said he wouldn’t.
Before the swap that led to Sgt. Bergdahl’s release, the administration completed the transfer of 12 detainees, a senior administration official said. No detainees have been transferred since.
The U.S. requires countries to meet certain criteria before allowing them to accept detainees. Countries, for instance, must provide the U.S. with assurances that the detainees won’t return to the battlefield and will be treated humanely. Many of the countries willing to take detainees are European, including France, Germany, Spain, Portugal, Latvia and Slovakia. But there are a growing number in South and Latin America.
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http://www.nytimes.com/2014/10/23/us/blackwater-verdict.html?emc=edit_na_20141022
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http://www.nytimes.com/2014/12/16/us/politics/cia-on-path-to-torture-chose-haste-over-analysis-.html?emc=edit_th_20141216&nl=todaysheadlines&nlid=49641193&_r=0
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From Inside Prison, a Terrorism Suspect Shares His Diary
‘Guantánamo Diary’ by Mohamedou Ould Slahi
NYT
JAN. 25, 2015
Books of The Times
By SCOTT SHANE
There’s a revealing moment in Mohamedou Ould Slahi’s gripping and depressing “Guantánamo Diary” when a new interrogator is assigned to question him. By this point, Mr. Slahi has been asked the same questions and given the same answers for years. But the new military interrogator, a woman he describes as “quiet and polite,” surprises him with a novel inquiry about what he knows of another terrorism suspect’s travel to Iraq in 2003.
The problem, as Mr. Slahi gently points out to his questioner, is that he has been locked up since 2001 and held at the military prison in Guantánamo Bay, Cuba, since 2002, so there is no chance that he could have such information. The interrogator smiles and explains that she asked anyway, because “I have the question in my request” from her bosses.
Much of the attention accorded to Mr. Slahi’s extraordinary memoir has justifiably gone to his excruciating account of his suffering during a “special interrogation” that lasted for months in 2003 and was personally approved by Donald H. Rumsfeld, then the secretary of defense. By Mr. Slahi’s account, which is corroborated by multiple government investigations, his treatment involved extended sleep deprivation, loud music, shackling for days in a freezing cell, dousing with ice water, beatings, threats that he could be made to disappear and that his mother would be arrested and gang-raped.
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But another overwhelming impression from his book, published after a seven-year legal battle and with heavy redactions from military censors, is of the woeful incompetence of some of the government’s efforts to keep the country safe from terrorism. That is no surprise to students of bureaucracy. When it comes to the military and intelligence agencies, however, secrecy makes blunders far easier to hide, and outspoken foes of big government give it a pass as soon as fears of terrorism are invoked.
The torture methods approved for Mr. Slahi, for instance, mimicked those used by America’s Communist adversaries in the Cold War, which were famous for producing false confessions. Predictably, Mr. Slahi describes how, desperate to stop the brutal treatment, he finally decided to tell the interrogators whatever he thought they wanted to hear, fabricating plots and implicating others in nonexistent crimes. Some interrogators, though, doubted his confessions and asked for a polygraph test. He denied plotting terrorism or supporting Al Qaeda, and the test results variously showed “no deception” or “no opinion,” undermining his supposed admissions.
Even the book’s redactions are a tedious reminder of the government’s frequent haplessness. Much black ink was expended, for instance, to try to keep readers from learning that some of Mr. Slahi’s Guantánamo interrogators were women. Why the censors decided their gender should be secret is anybody’s guess. Still, they missed enough feminine pronouns that their efforts at cover-up were undone.
Another dubious redaction draws a rare outburst of sarcasm from Larry Siems, who edited the book and lays out the facts of Mr. Slahi’s case dispassionately in his introduction and many footnotes. When a guard tells him not to worry because he’ll soon be home with his family, Mr. Slahi writes, “I couldn’t help breaking in [redacted].” Mr. Siems comments in a footnote, “It seems possible, if incredible, that the U.S. government may have here redacted the word ‘tears.’ ”
To be sure, Mr. Slahi’s pre-Guantánamo résumé cried out for scrutiny, especially after the Sept. 11, 2001, attacks. Born in Mauritania, he had joined Al Qaeda in 1990 to fight Afghanistan’s Communist government alongside Osama bin Laden. A cousin, also Mr. Slahi’s brother-in-law, was an aide to Bin Laden. In Germany, Mr. Slahi had once crossed paths with Ramzi bin al-Shibh, later a planner of the Sept. 11 attacks. Mr. Slahi had lived in Montreal and prayed at the same mosque as Ahmed Ressam, arrested in 1999 on charges of trying to bring explosives into the United States for the failed “millennium plot.”
Based on that history, the government concluded that Mr. Slahi was a “senior recruiter” for Al Qaeda and for a time, listed him as the most dangerous terrorist at Guantánamo. But it has never formally charged him. Mr. Slahi says he left Al Qaeda in 1992, long before it began to target America. His encounter with Mr. Bin al-Shibh lasted one evening and involved no discussion of anti-American plotting, he claims. And Mr. Ressam had left Montreal before Mr. Slahi arrived, and by his account, they never met.
A federal judge who reviewed Mr. Slahi’s habeas petition in 2010, James Robertson, concluded that the government’s evidence was “so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a criminal prosecution.” The judge said the government’s fear that Mr. Slahi could rejoin Al Qaeda if freed “may indeed be well founded,” but that such concerns did not justify his continued imprisonment. Judge Robertson ordered his release. Despite President Obama’s vow to close the prison, his administration challenged that decision. An appeals court overturned the release order, and Mr. Slahi, now 44, remains in limbo at Guantánamo, where he has been held without trial for more than 12 years.
Mr. Slahi emerges from the pages of his diary, handwritten in 2005, as a curious and generous personality, observant, witty and devout, but by no means fanatical. In the imperfect but vivid English he learned as a fourth language after being sent to Guantánamo, he writes enthusiastically of reading the Bible (several times), “Fermat’s Last Theorem” and “The Catcher in the Rye,” which he says “made me laugh until my stomach hurt.” He came to consider Guantánamo and its staff members his “new home and family,” developing friendships with numerous guards and interrogators, discussing religion, playing chess and watching movies with them. He expresses empathy even for some of his tormentors, saying that “many people in the Army come from poor families, and that’s why the Army sometimes gives them the dirtiest job.”
Though it was written nearly a decade ago, “Guantánamo Diary” arrives at a relevant moment. In his State of the Union address last week, President Obama renewed his pledge to close the Guantánamo prison before leaving office. But the recent attacks in Paris, after the beheadings by militants in Syria, have reignited the anxieties that have kept that prison going for so long.
In such an atmosphere, some Americans may worry: What if Mr. Slahi is simply a clever liar who has successfully hidden his past crimes for 12 years? His book quite effectively undercuts that notion. More important, “Guantánamo Diary” forces us to consider why the United States has set aside the cherished idea that a timely trial is the best way to determine who deserves to be in prison. The overwhelming majority of the remaining 122 detainees have not been charged.
“So has the American democracy passed the test it was subjected to with the 2001 terrorist attacks?” Mr. Slahi asks at the end of his book. “I leave this judgment to the reader,” he adds, noting that “the United States and its people are still facing the dilemma of the Cuban detainees.” Nearly a decade after he wrote those words, the dilemma has not been resolved.
GUANTáNAMO DIARY
By Mohamedou Ould Slahi
Edited by Larry Siems. Illustrated. 379 pages. Little, Brown and Company. $29.
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Jury Awards $218.5 Million in Terrorism Case Against Palestinian Groups
The Palestinian Authority and the Palestine Liberation Organization were found liable on Monday by a jury in Manhattan for their role in knowingly supporting six terrorist attacks in Israel between 2002 and 2004 in which Americans were killed and injured.
The jury in Federal District Court in Manhattan awarded $218.5 million in damages, a number that is automatically tripled to $655.5 million under the special terrorism law under which the case was brought.
The verdict ended a decade-long legal battle to hold the Palestinian organizations responsible for the terrorist acts. And while the decision was a huge victory for the dozens of plaintiffs, it also could serve to strengthen the Israeli claim that the supposedly more moderate Palestinian forces are directly tied to terrorism.
The financial implications of the verdict for the defendants were not immediately clear. The Palestinian Authority, led by Mahmoud Abbas, had serious financial troubles even before Israel, as punishment for the Palestinians’ move in December to join the International Criminal Court, began withholding more than $100 million a month in tax revenue it collects on the Palestinians’ behalf.
The verdict came in the seventh week of a civil trial in which the jury had heard emotional testimony from survivors of suicide bombings and other attacks in Jerusalem, in which a total of 33 people were killed and more than 450 were injured.
READ MORE »
http://www.nytimes.com/2015/02/24/nyregion/damages-awarded-in-terror-case-against-palestinian-groups.html?emc=edit_na_20150223
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http://www.jpost.com/Opinion/After-federal-court-finds-that-PA-and-PLO-are-terrorist-groups-Obama-must-follow-suit-and-cut-aid-392611
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Psychologists Shielded U.S. Torture Program, Report Finds
Friday, July 10, 2015 3:43 PM EDT
The Central Intelligence Agency’s health professionals repeatedly criticized the agency’s post-Sept. 11 interrogation program, but their protests were rebuffed by prominent outside psychologists who lent credibility to the program, according to a sweeping new report.
The 542-page report, which examines the involvement of the nation’s psychologists and their largest professional organization, the American Psychological Association, with the harsh interrogation programs of the Bush era, raises repeated questions about the collaboration between psychologists and officials at both the C.I.A. and the Pentagon.
Read more »
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Before Osama bin Laden Raid, Obama Administration’s Secret Legal Deliberations
By CHARLIE SAVAGEOCT. 28, 2015
WASHINGTON — Weeks before President Obama ordered the raid on Osama bin Laden’s compound in May 2011, four administration lawyers hammered out rationales intended to overcome any legal obstacles — and made it all but inevitable that Navy SEALs would kill the fugitive Qaeda leader, not capture him.
Stretching sparse precedents, the lawyers worked in intense secrecy. Fearing leaks, the White House would not let them consult aides or even the administration’s top lawyer, Attorney General Eric H. Holder Jr. They did their own research, wrote memos on highly secure laptops and traded drafts hand-delivered by trusted couriers.
Just days before the raid, the lawyers drafted five secret memos so that if pressed later, they could prove they were not inventing after-the-fact reasons for having blessed it. “We should memorialize our rationales because we may be called upon to explain our legal conclusions, particularly if the operation goes terribly badly,” said Stephen W. Preston, the C.I.A.’s general counsel, according to officials familiar with the internal deliberations.
While the Bin Laden operation has been much scrutinized, the story of how a tiny team of government lawyers helped shape and justify Mr. Obama’s high-stakes decision has not been previously told. The group worked as military and intelligence officials conducted a parallel effort to explore options and prepare members of SEAL Team 6 for the possible mission.
The legal analysis offered the administration wide flexibility to send ground forces onto Pakistani soil without the country’s consent, to explicitly authorize a lethal mission, to delay telling Congress until afterward, and to bury a wartime enemy at sea. By the end, one official said, the lawyers concluded that there was “clear and ample authority for the use of lethal force under U.S. and international law.”
Some legal scholars later raised objections, but criticism was muted after the successful operation. The administration lawyers, however, did not know at the time how events would play out, and they faced the “unenviable task” of “resolving a cluster of sensitive legal issues without any consultation with colleagues,” said Robert M. Chesney, a law professor at the University of Texas at Austin who worked on a Justice Department detainee policy task force in 2009.
“The proposed raid required answers to many hard legal questions, some of which were entirely novel despite a decade’s worth of conflict with Al Qaeda,” Mr. Chesney said.
This account of the role of the four lawyers — Mr. Preston; Mary B. DeRosa, the National Security Council’s legal adviser; Jeh C. Johnson, the Pentagon general counsel; and then-Rear Adm. James W. Crawford III, the Joint Chiefs of Staff legal adviser — is based on interviews with more than a half-dozen current and former administration officials who had direct knowledge of the planning for the raid. While outlines of some of the government’s rationales have been mentioned previously, the officials provided new insights and details about the analysis and decision-making process.
The officials described the secret legal deliberations and memos for a forthcoming book on national security legal policy under Mr. Obama. Most spoke on the condition of anonymity because the talks were confidential.
‘The Biggest Secret’
“I am about to read you into the biggest secret in Washington,” Michael G. Vickers, the under secretary of defense for intelligence, told Mr. Johnson.
It was March 24, 2011, about five weeks before the raid. Not long before, officials said, Mr. Preston and Ms. DeRosa had visited the Pentagon to meet with Mr. Johnson and Admiral Crawford, the nation’s two top military lawyers. The visitors posed what they said was a hypothetical question: “Suppose we found a very high-value target. What issues would be raised?”
One was where to take him if captured. Mr. Johnson said he would suggest the Guantánamo Bay prison, making an exception to Mr. Obama’s policy of not bringing new detainees there.
But the conversation was necessarily vague. The Pentagon lawyers needed to know the secret if they were going to help, Mr. Preston told Ms. DeRosa afterward.
By then, the two of them had known for over six months that the C.I.A. thought it might have found Bin Laden’s hiding place: a compound in Abbottabad, a military town in northeastern Pakistan. Policy makers initially focused on trying to get more intelligence about who was inside. By the spring of 2011, they turned to possible courses of action, raising legal issues; Thomas E. Donilon, national security adviser to Mr. Obama, then allowed the two military lawyers to be briefed.
One proposal Mr. Obama considered, as previously reported, was to destroy the compound with bombs capable of taking out any tunnels beneath. That would kill dozens of civilians in the neighborhood. But, the officials disclosed, the lawyers were prepared to deem significant collateral damage as lawful, given the circumstances. Still, the Obama team’s examination of the legal factors were intertwined with policy concerns about the wisdom of that option, Mr. Donilon said.
“Not only would there be noncombatants at the compound killed, there could be completely innocent people. That was a key factor in the decision” not to bomb it, he said, adding that the likely impossibility of verifying afterward that Bin Laden had been killed would have heightened controversy over bystander casualties. “All it would have bought us was a propaganda fight.”
Mr. Preston delivered a cabinet-level briefing on April 12, and as the National Security Council deliberated over that and two other options — a more surgical drone strike, which might miss, or a raid by American forces, which carried its own risks — a few other lawyers were eventually told the secret. But the White House kept senior lawyers at the Justice and State Departments in the dark.
On April 28, 2011, a week before the raid, Michael E. Leiter, the director of the National Counterterrorism Center, proposed at least telling Mr. Holder. “I think the A.G. should be here, just to make sure,” Mr. Leiter told Ms. DeRosa.
But Mr. Donilon decided that there was no need for the attorney general to know. Mr. Holder was briefed the day before the raid, long after the legal questions had been resolved.
As they worked out their reasoning, the four lawyers conferred in secure conference calls and stopped by Ms. DeRosa’s office after unrelated meetings. They gave no hint to colleagues that anything was afoot. Then, as the possible date for a raid neared, Mr. Preston grew tense and proposed writing the memos.
Mr. Johnson wrote one on violating Pakistani sovereignty. When two countries are not at war, international law generally forbids one from using force on the other’s soil without consent. That appeared to require that the United States ask the Pakistani government to arrest Bin Laden itself or to authorize an American raid. But the administration feared that the Pakistani intelligence service might have sanctioned Bin Laden’s presence; if so, the reasoning went, asking for Pakistan’s help might enable his escape.
The lawyers decided that a unilateral military incursion would be lawful because of a disputed exception to sovereignty for situations in which a government is “unwilling or unable” to suppress a threat to others emanating from its soil.
Invoking this exception was a legal stretch, for two reasons. Many countries have not accepted its legitimacy. And there was no precedent for applying it to a situation in which the United States did not first ask Pakistan, which had helped with or granted consent for other counterterrorism operations. But given fears of a tip-off, the lawyers signed off on invoking the exception.
There was also a trump card. While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a “covert” action, officials said.
If the SEALs got Bin Laden, the Obama administration would lift the secrecy and trumpet the accomplishment. But if it turned out that the founder and head of Al Qaeda was not there, some officials thought the SEALs might be able to slip back out, allowing the United States to pretend the raid never happened.
Mr. Preston wrote a memo addressing when the administration had to alert congressional leaders under a statute governing covert actions. Given the circumstances, the lawyers decided that the administration would be legally justified in delaying notification until after the raid. But then they learned that the C.I.A. director, Leon E. Panetta, had already briefed several top lawmakers about Abbottabad without White House permission.
The lawyers also grappled with whether it was lawful for the SEAL team to go in intending to kill Bin Laden as its default option. They agreed that it would be legal, in a memo written by Ms. DeRosa, and Mr. Obama later explicitly ordered a kill mission, officials said. The SEAL team expected to face resistance and would go in shooting, relying on the congressional authorization to use military force against perpetrators of the Sept. 11 terrorist attacks.
The law of war required acceptance of any surrender offer that was feasible to accept, the lawyers cautioned. But they also knew that military rules of engagement in such a situation narrowly define what would count. They discussed possible situations in which it might still be lawful to shoot Bin Laden even if he appeared to be surrendering — for instance, if militants next to him were firing weapons, or if he could be concealing a suicide vest under his clothing, officials said.
Matt Bissonnette, one of the SEALs who participated in the raid, recalled in his 2012 memoir, “No Easy Day,” that during their preparations, a Washington lawyer told them, “If he is naked with his hands up, you’re not going to engage him.” Mr. Bissonnette and Robert O’Neill, who also joined in the raid, disagree about who fired the fatal shot at Bin Laden. But on a key point they concur: In Bin Laden’s final moments, he neither resisted nor surrendered.
Ms. DeRosa wrote a memo on plans for detaining Bin Laden in the event of his capture. But in a sign of how little expectation there was for his survival, the administration made no hard decisions. The plan was to take him to the brig of a naval ship for interrogation and then figure out how to proceed. The lawyers also considered writing a memo describing their earlier analysis about what to do with any other living prisoners taken out of the compound, but did not write it because the final plan did not call for the SEALs to leave with anyone else.
No Shrines
The final legal question had been whether the United States, to avoid creating a potential Islamist shrine, could bury Bin Laden at sea.
The Geneva Conventions call for burying enemies slain in battle, “if possible,” in accordance with their religion — which for Muslims means swift interment in soil, facing Mecca — and in marked graves. Still, some Islamic writings permit burial at sea during voyages. The burial memo, handled by Admiral Crawford, focused on that exception; ultimately, burial at sea is religiously acceptable if necessary, and is not a desecration, it said.
The lawyers decided that Saudi Arabia, Bin Laden’s home, must be asked whether it wanted his remains. If not, burial at sea would be permissible. As expected, the Saudis declined, officials said.
On Sunday, May 1, the day of the raid, Mr. Johnson rose early, planted impatiens in his yard, put on a sport coat and told his wife he had to go to the office. First, he took communion at his Episcopal church. Admiral Crawford attended Mass at his Catholic parish. He and Mr. Johnson converged at a Pentagon operations center.
Mr. Preston packed a toothbrush and a change of clothes so he could stay overnight at C.I.A. headquarters if the operation went awry. He joined Mr. Panetta in the director’s conference room, then doubling as a command center. Ms. DeRosa came to the White House.
As the SEALs arrived at the compound in Pakistan, Mr. Obama went into a small anteroom off the Situation Room to watch a live video feed. Most of his senior team followed him, as depicted in a famous photo. The four lawyers who had helped clear the way for the operation were not in the frame.
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Court Ruling Could Hinder U.S. Investigation of Islamists
by Johanna Markind
The American Thinker
November 4, 2015
http://www.meforum.org/5620/nypd-surveillance
Edited version of an article originally published under the title "Will Hassan Undermine Domestic Intelligence?"
Syed Farhaj Hassan, the lead plaintiff in a lawsuit alleging that NYPD conducted illegal surveillance of New Jersey Muslims, at a June 2012 news conference.
The political struggle over the right balance between protecting the public and avoiding undue intrusion into private lives has taken a detour through the courts. Last month, a federal appeals court reinstated a complaint against the New York City Police Department in a decision with repercussions for the federal government's domestic intelligence apparatus. If the court's decision stands, it may make it harder for the government to prevent trouble by looking for extremists who act under a religious ideology, like Islamists.
During the 1990s, when journalist Steve Emerson began investigating Islamist groups in the United States – whose leaders exhorted their members to wage jihad to "destroy the West" and "kill the Jews" – he contacted FBI officials and asked whether they knew what was going on. He was astonished to discover that they didn't. Even if they had known, they told him, there was little they could do about it "owing to the FBI's mandate to surveil criminal activity and not simply hateful rhetoric," as Emerson writes in his book American Jihad.
The ability of federal agencies to gather domestic intelligence was sharply curtailed in the 1970s.
That is because back in the 1970s, in the aftermath of the Church Committee's revelations about FBI spying on political protestors like Martin Luther King, Jr., Joan Baez, Jane Fonda, and many others, the ability of federal agencies to gather domestic intelligence was sharply curtailed.
After 9/11, the limits on domestic surveillance were relaxed. The federal government once again authorized the FBI and other federal agencies, like the NSA, to gather information about US citizens and foreign nationals within the United States.
After 9/11, the limits on domestic surveillance were relaxed.
Others got into the game as well. Following the deaths of 2,600 people in the World Trade Center, the New York Police Department began its own surveillance program. Reportedly, police made undercover visits to mosques, monitored sermons, and "assembled databases on where Muslims lived, shopped, worked and prayed" as part of the program. The program came to light in August 2011 as a result of an Associated Press investigation and was subsequently scrapped in April 2014.
In 2012, a group of Muslim individuals and organizations filed suit in New Jersey federal court alleging that the City of New York violated their rights under the Equal Protection, Free Exercise of Religion, and Establishment Clauses by the NYPD's investigative activities, some of which (allegedly) occurred in New Jersey. The plaintiffs did not claim that the police tapped their phones, read their mail, or did anything other than obtain publicly available information. Nevertheless, title plaintiff Syed Hassan and the others claimed that police used their Muslim religious identity as a "permissible proxy for criminality" and caused them harm by stigmatizing them. The court dismissed the lawsuit on February 20, 2014.
The plaintiffs claim that police used their Muslim religious identity as a "permissible proxy for criminality."
The plaintiffs appealed the dismissal. On October 13, 2015, the US Court of Appeals for the Third Circuit reversed the lower court's decision and reinstated the claim. The appellate court held that the lower court was wrong to conclude the plaintiffs lacked standing to sue. Under the Third Circuit's analysis, the plaintiffs had suffered an injury from the alleged police activities, and the injury would likely be redressed – in other words, the problem would be fixed – if they won the suit.
In reaching this result, the Third Circuit held that subjecting individuals to government surveillance based solely on their religion, as plaintiffs claimed, was enough to state an injury. (At this stage, the question isn't whether the plaintiffs have proven their claims, just whether their claims are enough to get them into court.)
The Third Circuit also concluded that the lower court should have held the government to a higher standard in deciding whether its actions were proper. The lower court had applied a rational basis test, meaning the government's actions would pass muster under a showing that they were rationally related to a legitimate governmental objective. As the appeals court noted, courts generally place the burden on the challenger to show that the government's actions are not rationally related to a legitimate goal. Plaintiffs' claim of religious discrimination was entitled to a less deferential standard, the higher court held.
The majority decision failed to clarify what standard the lower court should apply.
Unfortunately, as Judge Roth's concurring opinion noted, the majority decision failed to clarify what standard the lower court should apply. Is it intermediate scrutiny, as the courts apply to claims of gender discrimination, or strict scrutiny, which is applied to claims of racial discrimination? Roth favors intermediate scrutiny, which means the government's actions must be "substantially" related to an "important" governmental objective. If the court were to apply strict scrutiny, the government would have to show that its actions were "narrowly tailored" to a "compelling" governmental objective.
The court's decision means that the case will be sent back to the trial court and plaintiffs will have the opportunity to prove their claims in court – unless the decision is appealed and the Supreme Court agrees to hear the case or unless the full panel of all Third Circuit judges decides to rehear the case; the recent decision was made by the normal three-judge panel.
For those keeping a scorecard, here are some things to watch:
• Will the City of New York seek a rehearing from the full Third Circuit panel? If not, will it appeal to the Supreme Court and, if it does, will the high court accept the case? If an appeal is filed, it will also be worth noting whether the United States Department of Justice weighs in. President Obama isn't exactly reputed to have the back of either police or the national security apparatus. But maybe for just that reason, he'll feel compelled at least to act as if he wants to support them.
• If and when the case returns to the trial court, it's a safe bet that the court/jury will uphold the governmental objective of preventing another terrorist attack as satisfying any standard. The tougher questions will be whether the plaintiffs can show they were targeted purely because of their religion, and if so, whether the police actions were sufficiently tailored. The case could very well be decided by the court's decision of which standard to apply.
• Will the Third Circuit's holding, that being singled out for intelligence-gathering constitutes an injury (at least, if the singling out is based on a religious classification), hold up? If so, what repercussions will this have for domestic intelligence gathering? In essence, will police, the FBI, the NSA, etc., have to satisfy something like a warrant standard just to open an investigation – even information that may be collected without a search requiring a warrant?
The scope of domestic intelligence – spying – has been a highly charged, politically divisive issue since well before Edward Snowden made his revelations. The most heartfelt part of Judge Ambro's Third Circuit opinion was his analogy of the Hassan complaint to the imprisonment of Japanese-Americans in concentration camps during World War II, and spying on "Jewish-Americans during the Red Scare, [and] African-Americans during the Civil Rights Movement."
The court has made it harder for government to track violent movements that use religion as their organizing principle.
Unfortunately, in an attempt to prevent governmental overreaction, the court has also made it harder for the government to react against a violent movement that uses religion as its organizing principle. And it has done so by saying that merely attending events open to the public and observing publicly-available information within a community that Islamists claim as their own can be a constitutional violation.
Part of the problem here is that political leaders (see, e.g., here, here, here, here, here, and here) and outspoken, supposedly representative Muslim groups like the Council on American-Islamic Relations (CAIR) (e.g., here, here, here, and here) have repeatedly denied any link between Islam and the violence and totalitarian nature of groups like al Qaeda and ISIS and their followers. More specifically, they have actively worked to obscure the relationship between Islam and Islamism – and therefore, have obscured how the two are different. Investigators charged with public safety have been left to figure this out for themselves, and now are being rewarded for their efforts by being exposed to a lawsuit.
Johanna Markind is associate counselor at the Middle East Forum
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Pasting Bid Dog's 911 post here as well:
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https://www.justsecurity.org/32837/president-obama-veto-jasta/
"Reasonable minds can disagree about whether providing the 9/11 victims and their families with a meaningful civil remedy against Saudi Arabia, if the allegations are true, is worth that cost. But ... the version of JASTA that passed the Senate (and, it now seems, the House) is the worst of both worlds...".
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I don't at this point, agree. This opens up a whole can of worms. This could very well come back to bite us. Sounds like a big money grab to me.
My mind could be changed possibly:
https://www.conservativereview.com/commentary/2016/09/obama-is-defending-the-saudi-government-agains-911-families
And families were already compensated from donations:
http://money.cnn.com/2011/09/06/news/economy/911_compensation_fund/
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Let's start using this thread for the legal issues involved with President Trump's EO:
http://www.washingtontimes.com/news/2017/feb/1/judge-andre-birotte-orders-trump-end-muslim-travel/?mkt_tok=eyJpIjoiT0RneFl6VXdaRGc1TlRWaCIsInQiOiJod1B0dHZ2ZUtWbWtMek5PMG85a3JEbXB3WVhcL1V2S0pYVjdWbUMyelEwc1NsYVlkXC8zZDZzWTJFV1VoY082U0JTWEFKWXRrS21kVUZFbGNRV1F0Q2NOZis0d1wvWFVacGdjMWJ3VXVEcjhPVEFIXC84VzRvakdpSkR4UDBicEkxamMifQ%3D%3D
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TTT
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I confess to liking that the Texas federal district judge was able to bind Obama nationally, but not the Washington judge binding Trump. Hmmmm , , ,
https://www.lawfareblog.com/case-against-national-injunctions-no-matter-who-president
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https://www.lawfareblog.com/case-against-national-injunctions-no-matter-who-president
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FEBRUARY 9, 2017 BY JOHN HINDERAKER
http://www.powerlineblog.com/archives/2017/02/9th-circuits-opinion-is-wrong-but-its-impact-is-limited.php
9TH CIRCUIT’S OPINION IS WRONG, BUT ITS IMPACT IS LIMITED
A three-judge panel of the 9th Circuit Court of Appeals has denied the government’s motion for an emergency stay of the order entered by Judge James Robart blocking implementation of President Trump’s temporary travel ban. The decision is a bad one, I think, but it also has only limited import and won’t stand in the way of more carefully crafted orders to be issued in the future.
First of all, there is simply no doubt about the fact that the president can by order suspend immigration from any country or group of countries. Remarkably, the Ninth Circuit decision fails ever to mention the relevant portion of the Immigration and Nationality Act, 8 U.S.C. §1182(f), which provides:
(f) Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
The 9th Circuit opinion does not in any fundamental way challenge President Trump’s power to do what he did: stop travel and immigration from certain designated countries.
What, then, did it do? The three judges found that there was a likelihood that someone’s due process rights could be violated by the order. The people in question are not citizens of the seven countries who have never been to the United States, and now want to travel or immigrate here. Those people have no rights under our Constitution, as the Supreme Court has repeatedly held. Rather, the 9th Circuit panel seized on the idea that a few people covered by the order–those who have come here legally already, and now want to return–have constitutional due process rights:
The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982).
So the situation, as viewed by the 9th Circuit panel, is thus: President Trump’s order is overbroad, because it affects, without providing a hearing or other due process, a small number of people who have constitutional rights, like those who are trying to reenter the U.S. after traveling abroad. The administration, on the other hand, argued that it is Judge Robart’s order that is overbroad: it blocks the entire implementation of Trump’s travel order, even though that order is unquestionably valid as to the vast majority of those affected.
The 9th Circuit panel adopted the anti-Trump view of this situation, and took the position that if there is a single person with due process rights who is affected by the order, the entire order can be blocked:
[T]he Government argues that the TRO is overbroad in two independent respects: (1) the TRO extends beyond lawful permanent residents, and covers aliens who cannot assert cognizable liberty interests in connection with travelling into and out of the United States, and (2) the TRO applies nationwide, and enjoins application of the Executive Order outside Washington and Minnesota. We decline to modify the scope of the TRO in either respect.
First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States. See Din, 135 S. Ct. at 2139 (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting) (six Justices declining to adopt a rule that would categorically bar U.S. citizens from asserting cognizable liberty interests in the receipt of visas by alien spouses). There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.
So, the 9th Circuit reasons, Trump’s order might be valid as to 99% of those affected, but if there are 1% who have due process rights, the entire order must be voided. This strikes me as a radical approach.
The battle will go on. As Paul urges, the administration might go straight to the Supreme Court. But bear in mind that all the 9th Circuit has done is to deny a motion for an emergency stay, based on “the limited evidence put forward by both parties at this very preliminary stage.” I think the administration could pretty easily tweak Trump’s order to meet the relatively minor objections the plaintiffs have put forward, and create a record in the trial court that would make it difficult for even the 9th Circuit (this is known as “judge shopping” by the plaintiffs, by the way) to stand in the way. In the meantime, let’s confirm Justice Gorsuch, just in case the Democrats try to execute a judicial coup.
Here is the 9th Circuit opinion; read it and judge for yourself:
9th Circuit's Opinion on Travel Ban
https://www.scribd.com/mobile/document/338924665/9th-Circuit-s-Opinion-on-Travel-Ban#from_embed
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Trump’s Judicial Debacle
The botched immigration order has given judges a chance to restrict executive power over national security.
Protesters stand in front of the United States Court of Appeals for the Ninth Circuit in San Francisco, Feb. 7.
Protesters stand in front of the United States Court of Appeals for the Ninth Circuit in San Francisco, Feb. 7. Photo: Agence France-Presse/Getty Images
Feb. 9, 2017 11:03 p.m. ET
334 COMMENTS
President Trump’s immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy.
The Ninth Circuit Court of Appeals upheld a Seattle judge’s nationwide temporary restraining order against the refugee pause and travel suspension from seven countries with heightened terrorism risks. The court ruled that the government wasn’t likely to prevail on the merits in a suit brought by Washington state and Minnesota.
The liberals and never-Trump conservatives who’ve spent months predicting the arrival of American fascism are suddenly breast-beating about U.S. checks and balances. Apparently they lack confidence in American institutions unless they’re running them. But while we opposed Mr. Trump’s order on policy grounds, there is reason to worry now about judicial overreach.
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Remarkably, the three-judge panel’s 29-page decision doesn’t discuss the Supreme Court’s Youngstown doctrine, which teaches that the President’s actions are most legitimate under the Constitution when the executive works in concert with Congress. The plain text of the 1952 Immigration and Nationality Act gives the executive exclusive authority to suspend “the entry of any class of alien” that “would be detrimental to the interests of the United States.”
The Ninth Circuit also made a hash of the important limit on the judicial power called standing. The courts are only supposed to hear cases with specific and concrete injuries that they can resolve. Washington and Minnesota asserted vague and speculative harms to their public university systems, like being deprived of hypothetical talented immigrant students in the future. That’s not good enough under traditional Supreme Court standing doctrine.
Instead, the Ninth Circuit panel held that Mr. Trump’s order violated due process, such as ample notice of the new policy and a hearing for those affected. That might be true for lawful permanent residents travelling abroad, who were first included in the order and then excised under a memo from White House Counsel Don McGahn. (Then they, and not the states, should sue.)
But the Ninth Circuit’s due-process claims even apply to some categories of foreign nationals overseas who have yet to enter the country. The opinion repeatedly cites the Boumediene v. Bush decision of 2008, when the Supreme Court held that the enemy combatants at Guantanamo Bay have a right to challenge their detention by the government.
But the reach of that 5-4 decision was at least cabined to habeas corpus, not a general license to extend constitutional rights willy-nilly to noncitizens. With the Boumediene precedent as a weapon, the Ninth Circuit decision jeopardizes core executive powers over national security. Unelected judges are inviting themselves to serve as policy makers who supervise foreign affairs, and where that impulse stops nobody knows.
The panel notes repeatedly that the Justice Department submitted “no evidence that any alien from any of the countries named in the order has ever perpetrated a terrorist attack,” as if the job of judges is to second-guess the executive branch. Yet last year the Department of Homeland Security reported that some 60 individuals born in the seven countries on Mr. Trump’s list have been convicted of domestic terror-related crimes since 9/11. That’s partly why Congress and President Obama singled the countries out for increased visa scrutiny.
But Justice didn’t cite these figures at oral arguments, probably because the Administration’s appeal has been as rushed and slipshod as the order itself. The secret and ad hoc drafting of the new policy by aides Stephen Bannon and Stephen Miller, with no public explanation and an incompetent rollout, has created an opening that willful judges can use to exceed their powers.
***
The Trump Administration can now appeal to the Supreme Court, but the wiser course would be to withdraw the order, which would make the Seattle and other cases moot. Homeland Security Secretary John Kelly told Congress this week that he regrets the order didn’t go through the normal channels.
The best option for Mr. Trump is to scrap the order and trust Mr. Kelly to do refugee vetting, but if the President insists on a new order than at least run it through extreme vetting. Consult with Congress and security experts, and make sure the attorneys lock down a legal and constitutional replacement.
The alternative is a possible bloodbath at the High Court. The best Mr. Trump can hope for is a 4-4 split that would uphold the Ninth Circuit ruling. But Justice Anthony Kennedy’s opinion and human-rights jurisprudence are implicated via Boumediene, and a 5-3 defeat is more likely, perhaps worse if Mr. Trump keeps denouncing the judiciary.
Presidents who tee themselves up as the mad Twitter king are rarely saved by judicial modesty. The Ninth Circuit ruling could be a fresh start for Mr. Trump to correct a mistake and then earn a national-security victory, if he’ll take it.
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I was listening to the WSJ podcast relating to this editorial and thinking of my own view on it.
In political conversation, I keep finding myself referring to game theory and it applies to legal strategy here. As in chess. the desirability of your next move(s) depends on what move(s) your opponent(s) will make in response. As the editorial infers, the President should be in charge of national security but if you give them an angle to oppose you, no matter what it means for national security, they were going to take it.
Our political opponents (or Trump's) at this point in time most certainly include half the judiciary including half the Supreme Court - plus Justice Kennedy and Chief Justice Roberts at times. This Executive Order, along with the lead up to it and the lack of preparation to defend it, gave them an opening a mile wide to judge shop and circuit court shop it, challenge it and have it struck down.
This order was really introduced to the country in a campaign gaffe. Trump said he would put a total ban on all Muslims entering ("until we find out what the hell is going on"). A ban based solely on religion was not the greatest idea nor was it what he ended up doing. This isn't a religious ban but it was a certainty that it would be taken that way by the President's opponents and presented and challenged that way in the courts.
I am most certainly against American citizens traveling back and forth to terror training camps and back and forth to their homeland to recruit and participate in ISIS and al Qaida based civil wars. There's no evidence of that? Try googling "Minnesota Men al Qaida" or woman or ISIS (or read this forum):
http://www.nbcnews.com/storyline/isis-terror/several-men-arrested-minnesota-california-alleged-isis-plot-n344596
http://news.minnesota.publicradio.org/features/2004/01/21_ap_arrest/
http://www.postbulletin.com/minnesota-man-arrested-for-assisting-al-qaida/article_eeda8c8c-8d61-521a-9ffe-fbdd55042e14.html
http://www.cnn.com/2004/LAW/01/21/terror.suspect.arrest/
http://www.nytimes.com/2003/12/11/us/jailed-man-accused-of-having-ties-to-al-qaeda.html
http://minnesota.cbslocal.com/2014/11/17/man-arrested-in-mn-in-911-plot-seeks-role-in-civil-terror-cases/
http://archive.adl.org/main_terrorism/somali_al_qaeda_guilty_plea.html
http://www.thedailybeast.com/articles/2013/09/24/al-shabab-the-jihadi-recruitment-drive-in-minnesota.html
http://www.foxnews.com/world/2014/06/22/somali-americans-leave-homes-friends-in-minnesota-to-fight-alongside-isis.html
Somali terror group linked to Al Qaeda 'recruited 21 men in Minnesota'
http://www.dailymail.co.uk/news/article-2015378/Somali-terrorists-linked-Al-Qaeda-recruited-21-men-Minnesota.html
http://www.citypages.com/news/what-we-know-about-minnesotas-connection-to-the-kenya-mall-massacre-6534813
https://www.pri.org/stories/2016-09-18/minnesota-mall-attack-linked-isis-so-far-no-such-link-new-york-explosion
http://freedomoutpost.com/despite-direct-al-shabab-islamic-connections-minnesota-somalis-whine-about-immigration-woes/
http://articles.latimes.com/2002/feb/25/news/mn-29792
http://www.cnn.com/2009/CRIME/11/23/somali.minnesota.indictments/index.html
http://www.cnn.com/2011/10/20/justice/minnesota-al-shabaab/
Above is one state's connection to a couple of the named countries. They aren't hard to find and this is just a partial list of ones we know about, not plots secretly foiled.
Back to legal strategy, the leg Trump gave to his opponents to stand on seems to be that the constitutional rights of those who travel to terror countries was restricted. Why not separate the immigrant /refugee question from the travel ban for American citizens. It does not matter so much that he is right (or wrong) on the constitutionality, it was a certainty that his opponents in the judiciary would disagree, that this would be struck down in a western court, upheld by the 9th and be a divided decision in the Supreme Court.
Mr. President, don't you get tired of losing?
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https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/09/the-9th-circuits-dangerous-and-unprecedented-use-of-campaign-statements-to-block-presidential-policy/?utm_term=.219010d4cd7e
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http://www.washingtonexaminer.com/article/2614043?platform=hootsuite
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third post
http://www.nationalreview.com/article/444800/ninth-circuit-trump-immigration-order-ruling-separation-powers-national-security
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Dear Reader (including the manufacturers of the Bernie Sanders action figure, now with the seize-the-means-of-production Marxist grip),
One of my favorite scenes of any comedy — and it’s very un-PC — is in Tropic Thunder when Robert Downey Jr. (in blackface!) explains to Ben Stiller that you “never go full retard.” The conversation is about film roles. Well, if you haven’t seen it, watch:
Now, I don’t like the term “retard” — and I really don’t like it in political debates. We aim for something loftier here.
Still, the scene came to mind because there should be a similar rule in legal circles: “Never Go Full Ninth Circuit.” Personally, I think it sounds better in Latin: Nolite umquam ire plenus nona circuit (and if any of you Latin pedants send me an e-mail correcting my translation, I will come to your house and scatter your Dungeons and Dragons figurines off the kitchen table).
The other day I noted on Special Report that Antonin Scalia had a rubber stamp on his desk with one of his favorite phrases: “Stupid but Constitutional.” I hope that one day, a Supreme Court justice will have a stamp on his desk that says, Numquam Plenus Nona Circuit.
Anyway, I understand that the case against the Ninth Circuit can be exaggerated. Yes, the West Coast’s federal appellate court has the highest rate of cases that have been oveturned by the Supreme Court, but the vast majority of its cases don’t get appealed to the Supreme Court. Hence the qualifier “Full Ninth Circuit.” Going Full Ninth Circuit is when you claim that that the Pledge of Allegiance is unconstitutional. That’s a Simple Jack move, not a Rain Man or even a Forrest Gump move.
It’s not that any single one of their findings in the travel-ban case violates the principle of Nolite umquam ire plenus nona circuit,it’s the totality of the thing. For starters, here is what the relevant statute says:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
As Ben Wittes notes:
Remarkably, in the entire opinion, the panel did not bother even to cite this statute, which forms the principal statutory basis for the executive order (see Sections 3(c), 5(c), and 5(d) of the order). That’s a pretty big omission over 29 pages, including several pages devoted to determining the government’s likelihood of success on the merits of the case.
This is like the pope changing a major part of Church doctrine without referencing the Bible or a film critic writing a book about mob movies without mentioning The Godfather.
Then there’s the claim that states have standing to challenge this executive order because they have state schools where students or faculty may be affected, thus depriving them of the ability to provide an enriching educational experience. How does this new standard work? Universities would be affected by a draft or a war, can they challenge those policies because it would affect their students? The president, I gather, can order a naval blockade around the United States. That might interrupt some U-Dub student’s planned semester at sea. Shall the commander-in-chief call to make sure he’s not interfering with anyone’s plan to take a few easy courses by day and smoke a lot of hash by night?
The fancy lawyer guys I’ve talked to think the most egregious thing in the ruling is that the judges are concerned about the “potential due process rights” of illegal aliens. This calls to mind Socrates’ famous query: “Huh?”
The executive order is only aimed at people trying to enter the country. If you are an illegal immigrant already here, it has no bearing on you. If you are an illegal immigrant trying to enter or re-enter the United States — illegally! — what are these due-process rights you’re talking about?
But I think the craziest part of the ruling is the idea that a president’s campaign statements have legal weight and could violate the Establishment Clause of the Constitution. This is battier than Bruce Wayne’s home office. Every cliché-spewing poli-sci major and pundit for the last 17,000 years (give or take) has noted that politicians say one thing when campaigning and another thing when in office. Even Mario Cuomo — that savant at casting banal observations as seemingly brilliant insights — said that we campaign in poetry and govern in prose (Donald Trump changed that to we campaign in limericks and govern in tweets).
Whatever you think of Trump’s original call for a Muslim ban (I think it was ludicrous) the whole point is that Trump did the right thing. He talked to his advisors and they said, “You can’t do that.” So he said, “Okay, what can we do?” And they came up with this executive order. It was shoddily done and on the merits isn’t nearly as vital to American national security as he claims. But that’s my point. He did something vastly less ambitious because the demands of governing required it. The judges responded, in effect, “We don’t care. We’re still going to punish you for it.”
David French is exactly right when he says this ruling is a Pandora’s Box. Where does this retromingent line of legal reasoning end? Barack Obama insisted he would fundamentally transform America and suggested he’d make the oceans recede. Could some judge reviewing an EPA regulation have said, “But the president said . . . ” about that? This is taking the rigorous rules of Twitter logic and putting them into law.
I firmly believe the Trump White House screwed the pooch on this thing from the get-go. By doing so, the president set in motion events that have made things even worse. The Ninth Circuit loves to preen under normal circumstances. The judges took a sloppily rolled out — but ultimately legal — executive order and used it to set potential precedents that, if left standing, will have calamitous repercussions.
If one thinks of the courts as a political institution with collective interests, the smartest thing the Ninth Circuit could have done is say something along the lines of “this is stupid but constitutional.” If they really think Trump is the monster the “resistance” Left thinks he is, they’ll need more, not less, credibility in the days to come. But, much like the mainstream media, they’ve decided that crying wolf from Day One is the preferable way to go. And that’s why they went Plenus nona circuit.
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http://joshblackman.com/blog/2017/02/10/the-failure-of-the-9th-circuit-to-discuss-8-u-s-c-1182f-allowed-it-to-ignore-justice-jacksons-youngstown-framework/
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http://www.newyorker.com/news/daily-comment/the-vulnerabilities-in-the-ninth-circuits-executive-order-decision
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https://www.nytimes.com/2017/02/22/us/politics/anwar-awlaki-underwear-bomber-abdulmutallab.html?mab-reward=A4&mi_u=49641193&mi_user_hash=3078d5304541fcf25f91a020d2d592195314580bc326e0a0e2928089&_r=0
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As best as I can tell Prez Trump's fustercluck with the first EO means that he has lost the independent of the judiciary power that the statute in question (8 USC 1798 was it? or was it the other one?) grants the President and that furthermore, he has abandoned his effort to protect the Christians from genocide, and he has surrendered to the 9th Circuit's assertion that America's Orwellian discrimination laws apply to the President conducting foreign policy. How can we now stop immigration flows from this part of the world?!?
Nice work Donald , , , :-P :-P :x
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http://thehill.com/policy/national-security/322628-five-takeaways-from-trumps-new-travel-ban
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The Lessons of Omar Abdel Rahman
by A.J. Caschetta
The Hill
March 9, 2017
http://www.meforum.org/6585/the-lessons-of-omar-abdel-rahman
More than 2,000 people attended the funeral of Omar Abdel Rahman after the return of his body to Egypt last month.
One of America's oldest Islamist enemies, Omar Abdel Rahman, popularly known as the "Blind Sheikh," died February 18 in a U.S. federal prison after nearly a quarter century behind bars. Though he did incalculable damage to our security during his illustrious career, he also taught us three valuable lessons, even if we're reluctant to fully apply them.
First, Abdel Rahman showed us how devastating an impact the arrival of just one unvetted Islamic militant can have.
Abdel Rahman was an esteemed scholar of Islamic jurisprudence before becoming spiritual leader of Al-Gama'a al-Islamiyya, a violent offshoot of Egypt's Muslim Brotherhood, during the 1970s. In 1981 he was jailed for issuing a fatwa authorizing the murder of Egyptian President Anwar Sadat. Released three years later, Abdel Rahman played a major role recruiting mujahideen networks fighting the Soviet Union in Afghanistan and has often been credited by Osama bin Laden with inspiring al-Qaeda.
Abdel Rahman showed us how devastating the arrival of just one unvetted Islamic militant can be. Despite being on a U.S. terrorism watch list, Abdel Rahman entered the United States in 1990 after obtaining a tourist visa from the U.S. embassy in Sudan. The State Department soon realized the mistake and tried to revoke the visa, but Abdel Rahman successfully fought deportation.
Why a known terrorist and sworn enemy of the United States was granted legal resident status is unclear. Some attribute this to a "tragicomedy of errors by American immigration authorities," while others maintain the CIA helped secure his residency status because it thought it could keep an eye on him and obtain useful information.
The second lesson Rahman can teach us is about surveillance. After being insufficiently vetted, Abdel Rahman began preaching at three mosques in New York and New Jersey, attracting a growing body of recruits and directing them to plot a spree of terror attacks on New York City landmarks ranging from the United Nations to the Lincoln and Holland tunnels.
Abdel Rahman was insufficiently surveilled both before his arrest and after imprisonment.
These activities eventually brought Rahman into the FBI's crosshairs (owing to the courageous informant Emad Salem), but not in time to detect and stop the 1993 World Trade Center bombing that left six dead. In October 1995, a federal jury convicted Abdel-Rahman of numerous conspiracy counts pertaining to World Trade Center attack and these foiled plots and sentenced him to life in prison.
Having been insufficiently surveilled before his arrest, Abdel Rahman was then insufficiently surveilled after imprisonment. Though the terror mastermind was subject to a Special Administration Measure (SAM) that restricted his contact with the outside world to legal counsel, the FBI did not begin eavesdropping on Abdel Rahman's conversations with his radical leftist lawyer Lynne Stewart (MARC: Wouldn't doing this be quite illegal?) and their handpicked translator until 2000, after it came to suspect (correctly) that he was in communication with IG leaders abroad.
Lynne Stewart, who passed away March 7, left us her own lesson: Never underestimate the willingness of radical leftists to become knowing dupes of religious reactionaries (provided they're Muslim). Through messages passed by Stewart (later convicted for her crimes) to and from IG liaisons, Rahman transmitted directives to and received reports from terror operatives abroad. He reportedly gave the order for a 1997 attack in Luxor, Egypt, that killed 62 people, mostly foreign tourists.
The third lesson that Abdel Rahman can teach us is that the criminal justice system is the wrong instrument for handling international terrorist cases, especially those with high-profile defendants.
Escaping the death penalty for a lifetime in prison, Abdel Rahman became a powerful symbol and inspiration to Islamists everywhere. Bin Laden issued numerous calls for Muslims to avenge their "sheikh."
The criminal justice system is the wrong instrument for handling international terrorist cases.
In a 1998 interview from the bowels of his cavern hideaway in Afghanistan, bin Laden held the USA "responsible for its attack on that symbol of Islam, Sheikh Omar Abdel Rahman."
Bin Laden's successor, Ayman al-Zawahiri, urged Egyptians to kidnap Americans in order to trade for him.
While the debate over Donald Trump's pledge to "keep radical Islamic terrorists the hell out of the United States" rages on, the press, Congress and the American people would do well to remember the life and lessons of Omar Abdel Rahman.
A.J. Caschetta is a Shillman-Ginsburg fellow at the Middle East Forum and a senior lecturer at the Rochester Institute of Technology.
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"One single object ... [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation." —Thomas Jefferson (1825)
https://patriotpost.us/articles/48014
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second post, same subject-- yes its Breitbart, but there seem to be a lot of citations in it:
http://www.breitbart.com/big-government/2017/03/15/robert-barnes-hawaii-obama-judge-rules-muslim-imam-has-special-constitutional-rights-to-bring-anyone-from-terror-countries-into-america/
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Have not read this in full, but it comes well recommended.
https://www.scribd.com/document/338353094/Arghavan-Louhghalam-et-al-v-Trump-5#from_embed
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http://lawnewz.com/high-profile/five-9th-circuit-judges-dish-out-ruthless-take-down-to-anti-trump-travel-ban-decision/
(the actual decision is at http://cdn.ca9.uscourts.gov/datastore/general/2017/03/15/17-35105%20en%20banc.pdf )
Five 9th Circuit Judges Dish Out Ruthless Take Down to Anti-Trump Travel Ban Decision
by Robert Barnes | 8:56 am, March 16th, 2017
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In one of the most ruthless opinions issued of fellow panel judges, five judges from across the political spectrum in the Ninth Circuit went out of their way to issue an opinion about a dismissed appeal, to remind everybody just how embarrassingly bad the prior Ninth Circuit stay panel decision was on Trump’s travel ban. The five judges included the famed, and most respected intellectual amongst the Ninth Circuit, Alex Kozinski. The others included Jay Bybee, Consuelo Callahan, Carlos Bea and Sandra Ikuta. Nobody other than the original panel came to the defense of the original panel decision, a less than promising start for future approvals of district court interference in Presidential immigration policy.
The language of the opinion was almost Scalian: the five Ninth Circuit judges noted their “obligation to correct” the “manifest” errors so bad that the “fundamental” errors “confound Supreme Court and Ninth Circuit precedent.” The district court questioned any judge issuing a “nationwide TRO” “without making findings of fact or conclusions of law” on the merits of the matter and conducting published opinions on seminal matters of national security based on “oral argument by phone involving four time zones.”
Aside from the procedural defects of the process, the five panel jurists then noted the deep legal problems with the panel’s order: its a-historicity, it’s abdication of precedent, and its usurpation of Constitutionally delegated Presidential rights. Mirroring much of the Boston judge’s decision, the five judges then detail and outline what other critics, skeptics and commentators have noted of the prior panel decision, including critical commentary from liberal law professors and scribes Jonathan Turley, Alan Dershowitz, and Jeffrey Toobin. The original 3-judge panel “neglected or overlooked critical cases by the Supreme Court and by our making clear that when we are reviewing decisions about who may be admitted into the United States, we must defer to the judgment of the political branches.” Of particular note, the five panel judges note how the 3-judge panel decision in “compounding its omission” of Supreme Court decisions and relevant sister Circuit precedents, also “missed all of our own cases” on the subject. The 5 judges conclude the panel engaged in a “clear misstatement of law” so bad it compelled “vacating” an opinion usually mooted by a dismissed case.
The five judges note some of the absurdities in the original 3-judge panel decision: claiming a consular officer must be deferred to more than the President of the United States; claiming first amendment rights exist for foreigners when the Supreme Court twice ruled otherwise; the claim that people here could claim a constitutional right for someone else to travel here, a decision specifically rejected by the Supreme Court just a year ago; and analogous Trumpian kind of immigration exclusion was uniformly approved by Circuit courts across the country in decisions issued between 2003 and 2008. As the five panelists conclude, the overwhelming precedent and legal history reveals a court simply cannot “apply ordinary constitutional standards to immigration policy.”
The five judges don’t quit there, though. They go on to identify other “obvious” errors. As the 5 judges note, the 3-judge panel hid from the most important statute, noting the 3-judge panel “regrettably” “never once mentioned” the most important statutory authority: section 1182(f) of title 8. Additionally, the 3-judge panel failed to even note the important Presidential power over immigration that all courts, Congress, and the Constitution expressly and explicitly gave him in all of its prior precedents.
Unsatisfied with that harsh condemnation, the five judges go even further. The judges concur with the Boston judge’s understanding of “rational basis” review, and condemn the Seattle judge’s and the 3-judge panel’s misapplication and elemental misunderstanding of what “rational basis” is. As the 5 judges note, “so long as there is one facially legitimate and bona fide reason for the President’s actions, our inquiry is at an end.” The issue is whether a reason is given, not whether a judge likes or agree with that reason. That means the executive order sufficed, and no further consideration of the reasons for Trump’s order were allowed.
The five judges still weren’t finished. Next up, the ludicrous suggestion the President had to produce classified and national security information to explain and explicate publicly all the empirical reasons he felt the order needed for safety rationales. As the five judges panel note, judges are not New York Times editors here to substitute for the President at their unelected will. A gavel is not a gun; a judge is not the commander in chief. And, again the 5 panel judges noted the Supreme Court specifically condemned just this kind of demand from judges — demanding classified information to second guess executively privileged decisions. As the court concluded, “the President does not have to come forward with supporting documentation to explain the basis for the Executive Order.”
The panel wraps up its ruthless condemnation of its fellow 3-panel decision by noting their errors are “many and obvious,” including the failure to even “apply the proper standard” of review. As the five judges wisely note: “we are judges, not Platonic guardians,” and the great losers of the 3-panel decision are those that believe elections matter and the rule of law deserves respect, as both were sacrificed for results-oriented judges who ignored the law and evaded the historical precedent to try to reverse the policy outcome of the recent election.
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http://www.breitbart.com/national-security/2017/07/02/hapless-gop-led-panel-approves-amendment-that-would-end-trumps-authorization-of-force-against-jihadist-groups/
Here is list of committee members. When brock was Prez this did not happen. Now we have a Rebup in there the dopes do this:
https://appropriations.house.gov/about/members/
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http://globalnews.ca/news/3573070/omar-khadr-apology/
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http://globalnews.ca/news/3573070/omar-khadr-apology/
If only there were a way to convince the Clintons that he was a witness to some of their crimes...
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https://www.nytimes.com/2017/07/21/world/europe/al-qaeda-suspect-court-trump-sessions-guantanamo.html?emc=edit_na_20170721&nl=breaking-news&nlid=49641193&ref=cta
But note
"Mr. Damache, 52, was arrested in Ireland in 2010, but he was released after an Irish judge rejected a request from the United States to extradite him. He was arrested again in 2015 in Spain. Under Mr. Obama, the Justice Department began seeking his extradition, and that effort continued under Mr. Trump"
In other words not only is this not a battlefield capture, we may well have had to agree to US federal courts instead of Gitmo in order to get the extradition. Do I have this right?
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https://pjmedia.com/homeland-security/mattis-no-single-solution-captured-isis-foreign-fighters/?utm_source=PJMCoffeeBreak&utm_medium=email&utm_term=February2018
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https://pjmedia.com/homeland-security/mattis-no-single-solution-captured-isis-foreign-fighters/?utm_source=PJMCoffeeBreak&utm_medium=email&utm_term=February2018
Shoot.shovel and shhhh.
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http://thehill.com/policy/national-security/387359-trump-administration-struggles-to-deal-with-us-enemy-combatant
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Hat tip to Big Dog
https://fas.org/sgp/crs/natsec/R42699.pdf
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John Walker Lindh Should Not Be Released Early
by Patrick Dunleavy
IPT News
March 26, 2019
https://www.investigativeproject.org/7869/john-walker-lindh-should-not-be-released-early
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https://www.navytimes.com/news/your-navy/2018/09/06/the-navys-top-lawyer-unlawfully-scuttled-a-seals-case-court-rules/?fbclid=IwAR3VE7vdbmGtBCwpFjLmy4-1NAIvdzhCWBMeZMTfb7vWlqwC3mUO1sgmWtc#.W5fv1aoptqc.facebook
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https://www.defenseone.com/politics/2019/04/guantanamo-nursing-home-terrorist-suspects/156575/?oref=defense_one_breaking_nl
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https://www.defenseone.com/politics/2019/04/guantanamo-nursing-home-terrorist-suspects/156575/?oref=defense_one_breaking_nl
Why haven't we killed them?
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Ummm , , , because we hold ourselves to the core understandings of the Geneva Convention?
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Ummm , , , because we hold ourselves to the core understandings of the Geneva Convention?
They are illegal combatants. They are outlaws. The fact that we even have to discuss this is why we are losing the war.
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Sounds like you are advocating something that the Russian tried , , , Do I misunderstand?
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Sounds like you are advocating something that the Russian tried , , , Do I misunderstand?
I advocate winning. Whatever it takes. Remember when we used to win wars? China laughs at our spinelessness.
Right now, those scumbags in Gitmo are getting better medical care than the average vet who lost limbs in Trashcanistan.
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And how would killing these prisoners help our cause?
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And how would killing these prisoners help our cause?
It’s an old concept, but in war, you kill the enemy. Not adopt them as permanent dependent class.
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So, no more prisoners of war?
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So, no more prisoners of war?
Not jihadists, fighting outside the laws of war. Treating them like legitimate soldiers of a nation-state is beyond stupid.
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https://www.nationalreview.com/news/federal-judge-rules-alabama-born-isis-bride-not-an-american-citizen-u-s-not-required-to-repatriate-her/?utm_source=email&utm_medium=breaking&utm_campaign=newstrack&utm_term=18614838
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https://www.nationalreview.com/news/federal-judge-rules-alabama-born-isis-bride-not-an-american-citizen-u-s-not-required-to-repatriate-her/?utm_source=email&utm_medium=breaking&utm_campaign=newstrack&utm_term=18614838
WOW! A decent ruling by a federal judge. Amazing.
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https://www.investigativeproject.org/case/818/us-v-al-imam
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https://www.statutesandstories.com/blog_html/an-act-relative-to-quarantine/
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THE FEDERAL GOVERNMENT’S RESPONSE TO CORONAVIRUS has begun to take on a predictable quality. President Trump on Sunday renewed the CDC’s social distancing guidelines through the end of April, papering over the cracks in his resolve that began to show last Sunday when he publicly questioned whether the coronavirus “cure” might be worse than the disease. But just as the administration seems to have cemented its approach, the states have begun to diverge in their responses to the crisis based on varying threat levels in their jurisdictions and the inclinations of their respective governors.
A nation that has been obsessed with the Washington show for the last three years is being reminded, seemingly overnight, that state laws matter and that state borders have consequences. In Rhode Island, governor Gina Raimondo has earned the respect of her year-round constituency by dealing harshly with New Yorkers who flock to the state’s coastal communities to spend their summers (and wait out international pandemics). On Friday, Raimondo signed an executive order establishing checkpoints along the state’s borders and instructing state troopers to pull over New York drivers to remind them of their duty to self-quarantine for 14 days. The troopers also ask the drivers for the address of their destination to ensure that they will comply with the order; those who are caught ignoring it can be fined up to $500 or sentenced to up to 90 days in jail. On top of the highway and public transit checkpoints, Raimondo dispatched state troopers and national guardsmen to go door-to-door in the state’s coastal communities looking for cars with New York plates. One woman who received such a visit told National Review the men who appeared on her door step on Saturday afternoon “couldn’t have been nicer” despite the menacing implication of armed men appearing on one’s door step. They did not ask her when she arrived in the state or whether she had left her home since; they simply asked her to stay inside save for visits to the local grocery store and pharmacy. But, since the grocery store and pharmacy are the only businesses open, what exactly necessitated a visit from agents of the state? Perhaps they serve as a warning to other New Yorkers considering making the drive to their vacation homes. If that was Raimondo’s motivation, anecdotal evidence suggests it may be working: one Westchester County, N.Y., resident told National Review she was planning to make the trip to her summer home but began to reconsider after hearing from friends and family that New Yorkers were receiving a less-than-neighborly reception from the locals. She finally decided against making the trip after learning that she might also receive a visit from uniformed men intent on keeping her and her children in their home under threat of a fine.
New York governor Andrew Cuomo initially called Raimondo’s executive order an “absurdity” — but struck a slightly more conciliatory tone on Sunday after speaking with Raimondo over the phone. “I don’t think the order was called for, I don’t believe it was legal, I don’t believe it was neighborly,” Cuomo said at his daily coronavirus briefing on Sunday. “I understand the point, but I thought there were different ways to do it, and the governor of Rhode Island was very receptive.” He was joined in criticizing the state government by the ACLU of Rhode Island, which objected to the decision to pull over New York drivers absent probable cause. “While the Governor may have the power to suspend some state laws and regulations to address this medical emergency, she cannot suspend the Constitution," said Steven Brown, executive director of the ACLU of Rhode Island. “Under the Fourth Amendment, having a New York state license plate simply does not, and cannot, constitute ‘probable cause’ to allow police to stop a car and interrogate the driver, no matter how laudable the goal of the stop may be,” he said.
Sending armed men door-to-door and pulling over cars simply because of the color of their license plates seems extreme — right now. But Raimondo’s lockdown approach may become commonplace in states that manage to keep their coronavirus numbers relatively low as their neighbors are overwhelmed. Already, Texas governor Greg Abbott has taken a similar approach, ordering police to collect the information of drivers entering the state from Louisiana and requiring all new arrivals from certain hot spots around the country to self-quarantine for 14 days. Before it is over, this crisis may test interstate solidarity and remind Americans that they live in a federal system as the nation becomes a patchwork of jurisdictions, some of which remain under quarantine as their hospitals are pushed to the limit and others that begin to return to relative normalcy.
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https://www.wsj.com/articles/a-better-way-to-deter-iran-in-iraq-11585696957?mod=MorningEditorialReport&mod=djemMER_h
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https://www.theepochtimes.com/supreme-court-unanimously-revives-punitive-damages-award-against-sudan-for-aiding-terrorists_3355408.html?__sta=vhg.qblkmhbwphzxphzemdsbg%7CUUU&__stm_medium=email&__stm_source=smartech
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FBI team leader: How I know the Blackwater defendants didn't deserve a pardon from Trump
Opinion by Thomas O'Connor
Updated 2:16 PM ET, Thu December 24, 2020
An Iraqi looks 24 September 2007, at a burnt car on the site where Blackwater guards who were escorting US embassy officials opened fire in the western Baghdad neighbourhood of Yarmukh, a shootout which left, 16 September 2007, nine civilians and a policeman dead. Iraq said today that it will await the outcome of an investigation into the killing of 10 people during the shootout before taking any action against the company. AFP PHOTO/ALI YUSSEF (Photo credit should read ALI YUSSEF/AFP/Getty Images)
An Iraqi looks 24 September 2007, at a burnt car on the site where Blackwater guards who were escorting US embassy officials opened fire in the western Baghdad neighbourhood of Yarmukh, a shootout which left, 16 September 2007, nine civilians and a policeman dead. Iraq said today that it will await the outcome of an investigation into the killing of 10 people during the shootout before taking any action against the company. AFP PHOTO/ALI YUSSEF (Photo credit should read ALI YUSSEF/AFP/Getty Images)
Thomas O'Connor served for 23 years as an FBI special agent before retiring in 2019. The opinions expressed in this commentary are his own. View more opinion at CNN.
(CNN)The President of the United States has the power to grant a pardon to anyone he believes deserves one. This is an incredible power when used for good. There are cases where the US justice system gets it wrong and cases where the defendants had served their time and were now doing good things. However, none of those fact patterns are present in President Donald Trump's pardon of four Blackwater security guards serving time for their involvement in the killing of 17 Iraqis in Baghdad on September 16, 2007.
I know that these men were undeserving of pardons because I was a member of The FBI Evidence Response Team that traveled to Iraq and investigated the site of these killings.
Thomas O'Connor
Thomas O'Connor
I am not a writer, an academic or one who has frequently spoken out publicly on political issues. I am a 35-year law enforcement professional. I retired on September 11, 2019, after 23 years as FBI special agent.
I was a team leader on the FBI's Washington Field Office, Evidence Response Team for more than 20 years. I have investigated many violent crimes and acts of terrorism around the world, including the bombing of the US Embassy in Nairobi, Kenya, in 1998, war crimes in Kosovo in 1999, the bombing of the USS Cole in 2000 and the attack at the Pentagon on September 11, 2001.
The most important rule for me during these deployments to major crime scenes: Don't look at the crime and fit the forensic evidence to match a perceived narrative; instead, look at the forensic evidence that will show the story of the event. By letting the evidence lead the direction of the investigation, the FBI Evidence Response Teams and the FBI Laboratory have an important role of speaking for the victims who cannot tell their story.
On September 16, 2007, Baghdad, Iraq, was a dangerous place. No one will dispute that fact. On that day, a bombing took place a few miles from a busy traffic circle called Al Nisour Square, which is used by Iraqis to access major roadways across Baghdad.
A security detail from the private government contractor Blackwater was protecting a US official attending a meeting at a government building when the bomb was detonated. When bad things happen, it is the security team's job to get the protectee "off the X" and away from danger. The security detail called the command center in the US Green Zone and advised that they were leaving with the US official.
Survivors of Blackwater massacre in Iraq slam Trump's pardons for US guards behind killing
Survivors of Blackwater massacre in Iraq slam Trump's pardons for US guards behind killing
At a place called "Man Camp," Blackwater Team Raven 23 sounded the alarm that they might be needed to assist the exfiltration of the protectee from the scene and back into the US Green Zone.
The team leader of Raven 23 called the command center and requested permission to leave the protected US Green Zone and go to assist the incoming Blackwater team. This request was denied.
The team leader then chose to violate the orders and left the US Green Zone anyway. The four Blackwater armored trucks were captured on video leaving the green zone. They drove out to Nisour Square, turned left and entered the traffic circle, blocking the northbound traffic, the southbound traffic and the traffic entering the circle from the west.
Two Iraqi traffic officers stopped the traffic going toward the four armored vehicles. One of the first cars in that stopped traffic was a white KIA occupied by a woman and her son. The woman was a local doctor and the son, who was driving the car, was going to medical school to follow in his mother's footsteps.
What happened next began the Nisour Square shootings.
A sniper on the Raven 23 team placed his rifle out a porthole of the Bearcat armored vehicle and fired at the driver of the white KIA. The man was struck and killed by the bullet. The car began to roll forward slowly, bumping into a red vehicle. The two Iraqi traffic officers physically tried to stop the movement of the car.
The defendants said they feared the white KIA was a car bomb as it moved ahead. The car rolled forward after the sniper, a security guard, shot the driver and his foot came off the brake. This is why the sniper was charged with, and convicted of, first-degree murder.
At that point gunfire erupted from a small number of the Raven 23 Blackwater operators. The gunfire was directed into the white KIA, killing the women seated in the front passenger seat. These rounds were from a rifle and a large turret gun. A grenade was fired from the turret gunners' rifle mounted launcher. The grenade skipped off the ground under the driver's door exploding and causing the gas line to rupture and set the car ablaze.
Here are the high-profile pardons and commutations Trump has granted during his presidency
Here are the high-profile pardons and commutations Trump has granted during his presidency
How do I know this? During the forensic evidence recovery later conducted by the FBI team, the bumper of the white KIA was removed and paint transfer was matched to the red vehicle, which was also processed. The blast fragment under the door showed a pattern, which was determined by FBI explosives experts to be from an M203 grenade.
In examining the white KIA, I was able to count 38 bullet entry points, and that does not account for the numerous rounds that entered through the windshield that no longer existed. We recovered a black steel tip rifle round from the steering wheel of the white KIA. This type of ammunition is against the rules of engagement in a US sanctioned war zone and in violation of US Military and Blackwater regulations.
A few cars back in the traffic was a blue Suzuki Trooper and inside were two families. The driver was Mohammed and his 9-year-old son Ali sat in the rear seat behind his father. In the front passenger seat was Mohammed's sister. Ali's two young female cousins sat next to him in the back seat.
Gunfire erupted and everyone in the car laid down in his or her seats as bullets hit the front of the trooper. At a break in the gunfire, likely during reloading, one of the little girls in the back seat yelled that "Ali has no hair."
When the shooting stopped and the Blackwater team began to move, Mohammed exited the driver door and opened a rear passenger door. Ali, who had been slumped against the door, fell into his father's arms. Ali had been struck with a Blackwater round, which entered the rear driver side door and hit the boy in the head. As his father reached for his 9-year-old son, Ali's brains fell out onto the street and onto his father's feet.
How do I know this? I spoke with Mohammed while I was procuring his car from him for forensic evaluation. When a grieving father tells you the story of his son being shot, you don't forget. Mohammed asked me one thing, bring justice for his son, tell the story. I responded to him with "Inshallah" (God willing). While witnesses are not always 100% accurate, the bullet holes in the rear driver's door which entered into the seat where Ali sat don't lie. What was indisputable is the brain matter, which we had to clear to complete the trajectory analysis and recovery of fragmented rounds.
A white VW Caddy used to transport ice was also stopped in that traffic. Two men sat in the driver's area of the truck. When the shooting began numerous rounds entered the driver's compartment. The man in the driver's seat was struck by gunfire. He tried to crawl out the passenger's door to safety.
A grenade then struck the driver's door, blowing a 10-inch by 10-inch hole in the outer metal of the door and sending fragmentation into the vehicle. A second explosion hit the roof over the driver's compartment. The blast also sent fragmentation raining into the truck. These two victims were not terrorists; they were businessmen trying to sell ice in a place where electricity frequently went out. One man was killed, the other injured.
How do I know the grenade was the cause of that explosion? I processed this vehicle and took hundreds of photographs of the damage and the bloodstains left in the driver's compartment of the vehicle. FBI Explosives experts analyzed the damage and confirmed the M203 grenade fragmentation pattern.
While this shooting was taking place on the roadways of the traffic circle, a boy was seated on a bench on the other side of a wall at a nearby children's school next to a makeshift playground. A grenade fired from a Blackwater rifle came over the wall and landed next to the bench. The grenade exploded, injuring the boy. The fragmentation in the metal bench was documented photographically.
I could go on with each of the 17 victims killed and 20 seriously injured in this incident. Same story, sitting in traffic waiting to get somewhere, anywhere but Nisour Square. In each case the vehicles were processed methodically and forensic evidence was recovered.
The Blackwater Raven 23 defendants claimed that they responded to gunfire aimed at them while stopping traffic in Nisour Square that day. I believed this to be the case before we deployed to Iraq for this crime scene investigation. I had worked with Blackwater operators on previous deployments to Iraq and they were good people doing a difficult job in a dangerous environment. That said, I would let the evidence lead the investigation and assist the agents in finding the truth.
One of the first things we did once we were in Baghdad was to ask to see the Blackwater vehicles, which, we had been told, sustained firearms damage. This would be very important evidence of a reason for the shooting incident.
I know that as a career law enforcement professional, if I had been involved in a shooting, I would do everything in my power to protect the evidence of bullet impacts coming toward me and show that I was defending myself. If you know the FBI Evidence Response Team is on their way to review the vehicles in the shooting, lock them up, protect the evidence. It is not rocket science.
What happened next gave me more than pause. The four armored vehicles involved in the Nisour Square shooting were silver in color when they were observed on tape leaving the US Green zone against orders. The vehicles in front of us at the "Man Camp" were now desert sand color. The reported impact points -- we were told they the impacts were from bullet rounds -- on the side of the vehicle were no long there.
In their place were traces of a sanding wheel, which had been used to sand off any potential marks. In the up gun turret of the Bearcat was a rifle cartridge. Only half of the cartridge was spray-painted desert sand brown. The vehicles were painted so quickly that they did not even clean up the debris.
We had been told that the radiator of one of the Blackwater vehicles had been punctured from a bullet round coming in from the traffic at Nisour Square. During the review and documentation of the vehicle, we found that the damaged radiator had been repaired.
We were also told that the front driver's tire of the vehicle had been punctured, likely from a bullet. We then found the tire had been replaced and the damaged tire discarded. Luckily we located the discarded tire, which had been removed and placed in an adjacent room.
We took both the radiator and the tire back to the FBI Laboratory for expert forensic review. One of the top explosives examiners in the FBI X-rayed the tire. Inside the tire he located a metal fragment. The fragment was not a bullet; it was a starlet (a piece of fragmentation made to cause damage) from an M203 grenade fired by the Blackwater security guards, which likely ricocheted off the white KIA and struck the tire.
Now, when you paint a vehicle, you don't paint the undercarriage, right? Of course you don't. A review of the undercarriage near where the radiator was damaged showed a small impact point. A basic trajectory was taken from the impact point to the radiator damage. This showed it was possible for a bullet or fragment to travel from that impact point to the radiator.
Photographs and measurements were taken of the impact point. It was later displayed in court proceedings and was clear evidence that the same class of item, which caused the damage to the bench at the children's school, caused the damage to the undercarriage of the Bearcat. Another example of ricochet evidence from the M203 grenade fired at the white KIA.
The FBI team made four trips to Iraq to investigate this shooting. The agency spared no expense to gather as much evidence from the scene and the vehicles as possible. Countless interviews were conducted and over a thousand photographs were taken of the scene. The evidence was collected professionally, and the best examiners in the world did the analysis.
All of this evidence was introduced into several US court hearings. The prosecution team was fair, professional and extremely competent. The defendants in this case had some of the most knowledgeable and professional defense teams possible. The judge was one of the most fair and objective jurists on the bench.
A jury heard the evidence and found four Blackwater guards guilty of murder, manslaughter and weapons charges. The system worked and justice was brought to the deceased, the injured victims and their families.
The families of those killed and wounded at Nisour Square will now watch those responsible for this tragedy go free thanks to a pardon by the President of the United States. This simply makes me sad and angry. I spoke to Mohammed this morning. He told me he could no longer tell his family and the people of Baghdad that the system worked and justice was found for Ali. Mohammed asked me one more question. Could this pardon be changed? I told him "no." I could not say Inshallah. The purpose of my writing this piece is to introduce you to these victims.
There is no forensic evidence of anyone shooting at the Blackwater team. How do I know? The evidence told me that.
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https://taibbi.substack.com/p/wednesdays-other-story
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https://www.nationalreview.com/2021/09/twenty-years-later-the-long-war-goes-on/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Saturday%20New%202021-09-11&utm_term=NRDaily-Smart
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Biden Admits to Supreme Court: The ‘Forever War’ Is Not Over, After All
By ANDREW C. MCCARTHY
October 8, 2021 11:16 AM
President Biden speaks in Elk Grove Village, Ill., October 7, 2021. (Evelyn Hockstein/Reuters)
It appears to have struck Justice Kavanaugh as strange that President Biden is claiming that the war is over while doing things that are legal only if the war is still going on.
To the extent President Biden’s pull-out from Afghanistan was not criminally negligent, it was pervasively mendacious.
There was the president’s lamebrained targeting of September 11 as the withdrawal deadline — a strategic and propaganda boon for the Taliban. There was the stunningly backward plan to draw down forces before evacuating civilians and diplomats, which led to the mind-blowing Bagram bug-out. Thus the domino effect of U.S. mistakes: our inability to evacuate from a fortified, well-equipped airport, instead shifting operations to the impractical Kabul airport; our removal of the technical support (especially air support) that the Afghan forces needed; the Taliban rout of remaining Afghan provinces; and the jihadists’ inheritance of tens of billions of dollars in American weaponry (which is now at the disposal of terrorists who have designs on attacking Americans). The Taliban took the capital without firing a shot, placing the Haqqani network — notorious jihadists formally designated by the U.S. as an al-Qaeda aligned terrorist organization — in charge of security in the city.
You know what happened next. With the environment converted into a jihadist’s dream, ISIS bombings killed 13 American military personnel (the most we’d lost in years). In the aftermath, Biden’s desperation to be seen as doing something about the lethal mess he’d made resulted in a rash “retaliation” strike that managed to slaughter not terrorists but ten civilians, including a mistakenly targeted humanitarian aid worker and seven children.
In the chaotic air lift, Biden tried to run up the numbers of Afghans evacuated in order to change the subject from the Americans and pro-American Afghans he has left behind. The result is that tens of thousands of insufficiently vetted denizens of an anti-Western, sharia-supremacist culture will be resettled in the United States (investigations are already under way for child-sex and spousal-abuse offenses by some of the “refugees,” as well as the sexual assault of a female U.S. soldier by a group of Afghan men at a military complex in New Mexico).
By contrast, and to our nation’s enduring shame (as Jim Geraghty steadfastly continues to report), Biden left to the tender mercies of the jihadists scores of American citizens, untold thousands of green-card holders, and tens of thousands of pro-American Afghans who actually qualified for resettlement in our country by assisting our forces at great peril — as reports increasingly indicate, mortal peril — to themselves.
And now the administration has quietly acknowledged that, in effect, all of the disgrace and dishonesty have been in the service of a big lie — namely, that Biden has ended the “forever war.” He hasn’t . . . though he’s hoping you won’t notice.
Ah, but Justice Brett Kavanaugh noticed.
Having tested positive for COVID (though he is vaccinated and symptom-free), Justice Kavanaugh was the only one of his colleagues to miss the resumption of in-person oral arguments as the Supreme Court opened its new term this week. But despite having to participate remotely by phone, Kavanaugh made a big impact, even if sparse press coverage failed to highlight it.
Turns out that, for the first time in years, the War on Terror — again, the so-called forever war — was back on the Court’s docket. The case involves 9/11 terrorist Abu Zubaydah, a top aide to Osama bin Laden, who is trying to force the U.S. government to reveal classified information to Polish prosecutors about a CIA “black site” at which he was subjected to waterboarding and other forms of enhanced interrogation. (I’ll discuss the case in a separate post in the coming days.)
Near the end of the session, it finally came Kavanaugh’s turn to pose questions. With the president telling the country that he and he alone had the courage no other president has had to end the forever war after 20 years, the justice decided to change the subject. By what authority, Kavanaugh wondered, was the Biden administration continuing to detain enemy combatants without trial?
It is not an idle question. Rich Lowry and I have been raising it on our NR podcast. Under the laws of war, captured enemy combatants may be held without trial until the conclusion of hostilities. The operating principle is that the detention is not meant to be punitive; it is intended to authorize depleting the resources of the warring parties, theoretically bringing the war to an end more rapidly. Once the war is over, though, the combatants may no longer be detained; they must be charged with crimes and put on trial, or else released.
In fact, the United States is still holding over two dozen terrorist detainees at Guantanamo Bay. There is no prospect of trying these jihadists in a military or civilian court. The evidence against them comes from top-secret intelligence that cannot be exposed in court without harming our national defense (and that might not be admissible anyway).
As a practical political matter, however, Biden cannot afford to release them. It has already blown up on him that Taliban detainees that the Obama-Biden administration released (in a swap for deserter Bowe Bergdahl) have ended up in high-level posts in the new Afghan regime that supplanted the government we’d spent years propping up. Moreover, it has emerged that, by ceding Kabul to the Taliban and allowing them to empty the prisons, the Biden pullout led to the release from detention at Bagram of the ISIS terrorist who then proceeded to carry out the suicide bombing that killed 13 of our service members. The remaining Gitmo detainees are still being held because it is a certainty that they would otherwise return to the very-much-not-over forever war and plot to mass-murder Americans. That is not a risk even the bungling Biden is willing to run at this moment, with his presidency reeling and his poll numbers tanking.
But of course, the administration would rather not say that out loud. The storyline for Biden officials is that, for all the downsides, what people will remember is that he ended an unpopular war.
Except he didn’t. And Kavanaugh forced the administration to say so.
At Tuesday’s Zubaydah argument, the justice put the question bluntly to Biden’s acting solicitor, Brian Fletcher: “Is the United States still engaged in hostilities for purposes of the AUMF against al-Qaeda and related terrorist organizations?” The AUMF (Authorization for Use of Military Force) is the 2001 congressional resolution that served as the basis for the war in Afghanistan and for continuing U.S. military operations and detention of enemy combatants.
Yes, Fletcher conceded, “that is the government’s position.” And it is the position the Biden administration holds, he elaborated, “notwithstanding withdrawal of troops from Afghanistan.” Whatever the White House may say about the end of the forever war, the Justice Department has represented to the Supreme Court that “we continue to be engaged in hostilities with al-Qaeda and therefore that detention under law of war remains proper.”
A couple of interesting points. In his prior life, the young Brett Kavanaugh, after clerking at the Supreme Court, was an associate White House counsel and, significantly, the staff secretary for President George W. Bush. He was enmeshed in the administration’s strategy as it shifted America’s national-security posture from treating terrorism as a law-enforcement matter in the Clinton era to addressing it under the laws of war — the corpus that allows indefinite detention of enemy combatants. It has no doubt struck Justice Kavanaugh as strange for President Biden to be claiming that the war is over while doing things that are legal only if the war is still going on.
Second, it was only a few weeks ago that Biden made Kavanaugh appear foolish for trusting the administration. The justice knew that the president’s eviction moratorium was lawless, but since it was set to expire in a few weeks, he agreed to look the other way — provided, Kavanaugh stressed, that the administration get a clear congressional authorization before any further extensions. Biden being Biden, he pocketed that indulgence and then unilaterally extended the moratorium without seeking the congressional green light he knew would be denied. Kavanaugh and the Court looked like saps, and the Court speedily invalidated Biden’s gambit.
Supreme Court justices do not like to look like saps.
So just to be clear, President Biden has not ended the war, nor could he have given that the jihadist enemy has not been defeated and continues to target the United States and American interests worldwide. What Biden has done is restore to our terrorist enemies what they needed to carry out the 9/11 attacks that killed nearly 3,000 of our fellow Americans: an operational partnership with an anti-American sharia-supremacist regime in Afghanistan that gives them safe haven to recruit, train, and plan
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https://www.abajournal.com/news/article/doj-lawyer-argues-us-can-kill-its-own-citizens-without-review-when-state-secrets-are-involved
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Biden Administration Quietly Steps Up Effort to Close Guantanamo
Special representative named to oversee efforts to transfer detainees out of military facility in Cuba
The U.S. has held alleged foreign terrorists at Guantanamo Bay Naval Base in Cuba since 2002.
PHOTO: ALEX BRANDON/ASSOCIATED PRESS
By Jess BravinFollow
Sept. 17, 2022 7:00 am ET
WASHINGTON—The Biden administration is revamping its effort to close the Guantanamo Bay prison, for the first time appointing a senior diplomat to oversee detainee transfers and signaling it won’t interfere with plea negotiations that could resolve the long-stalled prosecution of alleged 9/11 mastermind Khalid Sheikh Mohammed and four co-defendants.
After taking a low-profile approach to the matter for the first year of his term to avoid political controversy, President Biden is moving closer to fulfilling a campaign promise to shut the facility, people familiar with the matter said.
The facility at the U.S. Navy base in Cuba was set up in January 2002 to house alleged foreign terrorists captured overseas. Guantanamo has held nearly 800 men since then; only 36 detainees remain at the facility today, after hundreds were returned home or resettled in third countries by the George W. Bush and Barack Obama administrations. The newest detainee arrived in 2008; some of the men have been held for two decades.
Nine of the remaining detainees are defendants in military commission proceedings, including five accused of conspiracy, murder in violation of the law of war, hijacking or hazarding a vessel or aircraft, and terrorism in the Sept. 11 case.
Abd al-Rahim al-Nashiri has been charged with perfidy, murder in violation of the law of war, terrorism, conspiracy, and hazarding a vessel in planning attacks on three vessels, including the 2000 bombing of the USS Cole that killed 17 sailors.
Three other detainees have been convicted by military commissions, including two via plea bargains. One, Abd al-Hadi al Iraqi, pleaded guilty to conspiracy and violation of the law of war and is awaiting sentencing. A second, Ali Hamza al-Bahlul, is serving a life term for providing material support for terrorism, solicitation and conspiracy. A third, Majid Khan, made a deal with prosecutors to plead guilty to conspiracy, murder in violation of the law of war, attempted murder in violation of the law of war and spying, and became a government cooperator and completed his sentence in March.
Four detainees are being held indefinitely without charge because authorities consider them a security risk. Twenty others have been cleared for transfer by a review board including defense, intelligence and law-enforcement officials, but moving the men out has proven harder than the Biden team expected, the people said.
Some critics of the Biden administration’s action on closing the prison, both within and outside the administration, say newer crises have been occupying the national security staff, and the potential for being branded soft-on-terrorism has slowed the administration’s efforts, they say.
The White House is seeking to avoid the kind of backlash that stymied Mr. Obama’s plans after his high-profile calls to shut the prison down. Congress responded to the Obama administration’s effort to close the prison in 2010 by passing a ban on the transfer of Guantanamo detainees to the U.S.
“The administration doesn’t want to look like it’s soft on terrorism and is awaiting a political consensus,” said Harvey Rishikof, a former head of the military-commissions apparatus who helped draft a recent report on closing the facility from the University of Pennsylvania’s Center for Ethics and the Rule of Law.
Mr. Biden’s new special representative position, the critics also say, lacks the clout similar offices had under the Obama administration, where Guantanamo envoys had direct access to the secretary of state. The new special representative, Tina Kaidanow, a former ambassador-at-large for counterterrorism, has been placed further down in the State Department hierarchy, they say.
A State Department spokesman said Ms. Kaidanow was unavailable for comment.
The Defense Department is moving ahead with a Donald Trump-era project, building a third courtroom at Guantanamo Bay at a cost of $4 million, even though no additional trials are expected at the naval base.
A military commissions spokesman said “an extensive expansion” of Guantanamo’s trial facilities, including a new courtroom, would allow military judges to hold “simultaneous multi-defendant, lengthy trials.”
Twenty-one years after the attacks of Sept. 11, 2001—and a year after the U.S. withdrew from Afghanistan—critics are pushing the administration to move faster in shutting down the offshore prison.
“Holding people without charge or trial for years on end cannot be reconciled with the values we espouse as a nation, and has deprived the victims of 9/11 and their families of any semblance of justice or closure,” said Senate Judiciary Committee Chairman Dick Durbin (D., Ill.).
Some Republican lawmakers, meanwhile, have opposed any actions that could lead to detainees leaving Guantanamo. “The Biden administration wants to free more terrorists, and we know, to an absolute, metaphysical certainty, the results of that will be more Americans murdered,” Sen. Ted Cruz (R., Texas) said in December at a Judiciary Committee hearing on Guantanamo.
The Penn research center released a 197-page report Monday providing a road map to closing the facility, while proposing alternate approaches to protect national security. Drafted by national-security experts, including former Guantanamo military prosecutors and defense lawyers, the report recommends abolishing the military commissions, created to try enemy prisoners without affording them constitutional rights, and resolving the 10 pending commission trials through plea bargains that could lead to life imprisonment for some defendants rather than execution.
It advocates a more robust campaign to repatriate or resettle abroad detainees and a repeal of congressional restrictions on transferring detainees who are serving sentences in Guantanamo to prisons in U.S. territory.
The facility in Cuba costs $540 million a year to operate, according to the Penn study, including about $100 million for military commissions. That comes to $15 million a detainee, compared with about $78,000 a year for an inmate at the U.S. Penitentiary at Florence, Colo., where terrorists and other high-security convicts are held.
The Bush administration transferred more than 500 detainees from Guantanamo before 2009; the Obama administration transferred nearly 200 more. Only one transfer, which had been negotiated during the Obama era, took place during the Trump administration. Forty detainees remained at Guantanamo when Mr. Biden took office.
Mr. Biden has long called for the facility to close, including during his 2020 presidential campaign. Still, Mr. Biden left in place Mr. Trump’s 2018 executive order revoking Mr. Obama’s 2009 directive to close the facility. The White House also initially didn’t re-establish the Guantanamo envoy position. When Mr. Durbin held a Judiciary Committee hearing on Guantanamo in December, the administration declined to send anyone to explain its position.
The Sept. 11 prosecution has been bogged down for years over the cruel methods Central Intelligence Agency interrogators used before defendants were charged. In 2017, Mr. Rishikof, then-commissions chief, began negotiations with the Sept. 11 defendants that could have led to guilty pleas if executions were off the table.
The Trump administration removed Mr. Rishikof from his post for what it said were unrelated reasons. Earlier this year, the Biden administration renewed those negotiations and the White House said it wouldn’t interfere.
“Obviously, if this were easy—four presidents, 20 years—we would have figured this out,” Sen. John Cornyn (R., Texas) said at the December hearing.
Write to Jess Bravin at jess.bravin+1@wsj.com
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Time to End the 9/11 Military-Commission Debacle
By ANDREW C. MCCARTHY
February 4, 2023 6:30 AM
Ted Olson is right: A deal in which the remaining defendants plead guilty and agree to serve life in prison is best for all involved.
In rhetoric, there is no greater advantage than the perceived authority of the speaker — and it would be difficult to imagine a more authoritative voice on the legal response to the 9/11 atrocities than Ted Olson.
I could not admire Ted more. He is one of the great lawyers in the United States, and has been for decades. For much of his career, he was a pillar of the sort of Justice Department that now seems a distant memory: the sort that elevated the rule of law above partisan politics.
Olson was the solicitor general of the United States on September 11, 2001, when jihadist suicide-hijacking attacks killed nearly 3,000 Americans. Because of that position in the Justice Department’s upper echelon, and because he most deservedly had the trust of President George W. Bush, Olson was at the forefront of the government’s legal response to the most brutal act of war committed on American soil since Pearl Harbor.
Such responsibilities, daunting as they were, seem almost trivial in comparison to 9/11’s ramifications for Olson’s personal life. As he related in a moving op-ed published in the Wall Street Journal on Thursday, his wife, Barbara Olson, was among the passengers killed by the terrorists when they crashed Flight 77 into the Pentagon. Reading it takes the breath away, even for those of us who were enmeshed in counterterrorism at the time, who had relationships stretching back years with the families of many of the fallen, and who like to think we understand the anguish, though we really can’t:
I remember exactly where I was standing on Sept. 11, 2001, when I heard my wife Barbara’s voice over the phone moments before her plane crashed into the side of the Pentagon. She told me that hijackers had taken over her flight from Washington to Los Angeles, where she was heading for a television appearance. She spent her last few minutes trying to figure out how to stop the unfolding tragedy. The weight of the disaster was overwhelming. It was personally devastating for me and for the thousands of others who lost family and friends that day, and it was devastating for our nation. I knew then that life would never be the same in this country.
He is right: It never has been the same. We are the worse for the events of that terrible day, and there is plenty of blame to go around for that on both sides of the intense debate over the proper role of the justice system in an asymmetrical war against a barbaric enemy. It is blame we share despite our good intentions, and perhaps because we’ve too often failed to credit the good intentions of those with whom we disagreed.
The focus of Olson’s piece is the conundrum we’ve previously discussed here: terrorists who should be put to death but can’t be tried. It should go without saying that he writes as someone who was both personally aggrieved by the attacks and professionally engaged in the government’s response to them. But ever the patriot, he also aims to help Joe Biden out of a bind that is not of Biden’s own making but that only Biden, as the president, can address.
As we’ve observed for months, the Biden administration is struggling to resolve an untenable, infuriating impasse: the inability over 22 years to try, convict, and execute jihadists we know orchestrated al-Qaeda’s 9/11 operation. The president clearly wants to end this debacle through a bargain in which the Justice Department takes the death penalty off the table and the terrorists admit guilt and accept life sentences.
Olson argues that such a deal is “the best the U.S. government can do at this point,” and he’s right.
The detainees were subjected to what the Bush administration euphemistically described as “enhanced interrogation techniques,” and what progressive Democrats label “torture,” a conclusion on which they will brook no dissent (no matter that Nancy Pelosi and other top Democrats were briefed on it in real time). Even if one does disagree with the torture accusation, two things must be stipulated. First, some of the methods used by American officials, and all of them in the aggregate, shock the conscience. Second, even those of us who were open to the argument that exerting extreme physical and psychological pressure on detainees could be justified in a ticking-bomb scenario — i.e., a dire situation in which thousands of people could be killed if a particular piece of intelligence weren’t obtained immediately — could never agree that statements adduced by such methods should be admissible evidence in a trial. Our very understanding of what a trial is would be corrupted beyond recognition by such a development.
Because the detainees were subjected to abusive interrogation techniques, military prosecutors in the commission system that has jurisdiction over the case may not have sufficient evidence to prove that they are guilty of the mass murder they are brazenly proud of orchestrating — and even if that hurdle could be overcome somehow, it is likely the commission would decline to impose the death penalty.
Then there is the “laws of war” problem, which I periodically and inconveniently note as commentators left and right decry the continuing operation of the detention center at Guantanamo Bay and “forever wars.” The laws of war permit detention of enemy combatants only until the conclusion of hostilities; once combat operations are over, detainees must be charged with war crimes or released. Many of the 34 detainees still held at Gitmo (and even more who have already been released) cannot be tried, not just because of the interrogation methods used on some of them but because the evidence against them can’t be exposed without compromising U.S. intelligence-gathering methods and sources. Yet if released, those detainees would likely return to anti-American jihadism.
Critics want the war to be over and Gitmo to be shuttered this instant. Naturally, though, they don’t want to be held responsible for the foreseeable outcome of that scenario: Terrorists who are released will kill more Americans and other innocent people. Still, the law is the law. Olson, again, is correct in saying that detainees who can’t and won’t be charged, and who have been cleared for release, should be transferred to countries willing to take them. If they’ve been cleared, that is a governmental judgment that they are no longer seen as combatants. And if they’re no longer seen as combatants, there is no legal authority to detain them, notwithstanding the risk that they could return to terrorist activities.
Biden has botched many things. He is to be blamed, however, for none of this. The job he has is the world’s toughest because it requires making gut-wrenching, politically fraught calls. If he is to be faulted, it is only for being too craven to take the heat for decisions that are certain to be unpopular with many, if not most, Americans. Thus has the White House tried to deflect responsibility for the entire mess, as if it were solely up to the Defense Department and the military commission to decide what to do — as if the armed forces were not subordinates of the commander in chief.
That is the breach into which Olson is stepping. Now, assuming there finally is a plea bargain to end the 9/11 case, Biden will be able to say that if this resolution is good enough for Ted Olson, it ought to be good enough for you.
And so it should.
Even we who supported the commissions must admit that they’ve been a disaster. Looking back, Olson now believes that they were doomed from the start. I’m less sure about that. I believed, and proposed, that Congress should devise a national-security court for alien enemy combatants — a tribunal that would combine the best aspects of the civilian justice system (in particular, independent Article III judges who had done a commendable job on terrorism cases in the years prior to 9/11) with aspects of the military justice system that made it easier to shield intelligence from our wartime enemies. But there was no appetite for such a court, and forced to choose between two poor fits, I believed the military-commission system, though experimental, would be better than the civilian justice system in which I’d prosecuted terrorists in the 1990s.
And it is here that, while agreeing with his bottom line, I part company with Olson’s critique.
According to Olson, “The established legal system of the U.S. would have been capable of rendering a verdict in these difficult cases, but we didn’t trust America’s tried-and-true courts.” Respectfully, trust in the capacity of our courts to render just, reliable verdicts was never the issue. The Obama administration and top Democrats repeated that talking point endlessly, but it was perfectly obvious that district judges, particularly in the Southern District of New York in the years after the 1993 World Trade Center bombing, did a stellar job presiding over terrorism trials. The outcomes of those cases were just, although I’d note that the bombers of U.S. embassies in Kenya and Tanzania were not executed in their capital case, which under the circumstances they should have been.
The actual objection to the civilian justice system was the mismatch between, on the one hand, the presumptions and due-process requirements of the civilian judicial system, and on the other hand, the exigencies of a hot war against very capable jihadist organizations that were continuing to plot operations against U.S. civilian, political, and military targets.
As I can attest, having had to make discovery in terrorism prosecutions, compliance with due-process standards applicable to criminal trials required providing our enemies with valuable intelligence that made them more lethal. It was irresponsible to do this even back in 1993, when we didn’t have as much experience with such cases — just the one major attack against the World Trade Center in February of that year, followed immediately by an unsuccessful plot to bomb other New York City landmarks. There would be no excuse for continuing to do it once our government went to war against these enemies after 9/11, which itself happened only after a series of deadly jihadist operations: the so-called Bojinka plot to explode U.S. airliners in midflight in 1994 (one tourist killed by a test bomb); the Khobar Towers bombing in Saudi Arabia in June 1996 (19 members of the U.S. Air Force killed); the aforementioned bombing of embassies in eastern Africa in August 1998 (over 200 killed); the plot to bomb Western tourist sites in Jordan in late 1999 (a failed attack); the plot to bomb Los Angeles International Airport on December 31, 1999 (a failed attack); the plot to bomb the U.S.S. The Sullivans in Yemen on January 3, 2000 (a failed attack); and the bombing of the U.S.S. Cole in Yemen in October 2000 (17 U.S. Navy personnel killed).
It is undoubtedly true that the civilian justice system would have done a better job than the military commissions. It is not at all certain that that would have resulted in convictions and executions for the 9/11 bombers. If the persistent problem with resolving the 9/11 case is the impact of forcible interrogations, it’s not a problem a civilian trial would have solved — it would have complicated both the liability phase, and then the death-penalty phase, for any defendants who’d been found guilty. Nevertheless, the objection to civilian trials was not about the system’s ability to produce trustworthy results; it was that the national interest in trustworthy results was not as high as the national interest in refraining from providing intelligence to enemies actively trying to kill Americans.
Ted Olson is right: It is time to close the book on the 9/11 litigation. The Biden administration should withdraw the government’s intention to seek the death penalty and allow a plea deal in which the 9/11 defendants are incarcerated for life. Otherwise, the stalemate could go on for many more years: There is no realistic prospect of a trial on the horizon, much less a trial in which the terrorists are convicted and executed.
Meantime, Congress needs to examine our Nuremberg-driven assumption that war criminals who commit mass murder must be given a proceeding approximating a criminal trial before they may be executed. It is simply a fact that we are never going to presume the innocence of such offenders or release them if they are somehow acquitted. So why pretend otherwise?
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Just declare all AQ prisoners were J6 protesters and they can be deprived of all due process rights, imprisoned indefinitely and executed as needed without a bit of concern from the left.
I still haven’t found where DSA has covered Ray Epps and his mysterious lack of criminal charges.
Time to End the 9/11 Military-Commission Debacle
By ANDREW C. MCCARTHY
February 4, 2023 6:30 AM
Ted Olson is right: A deal in which the remaining defendants plead guilty and agree to serve life in prison is best for all involved.
In rhetoric, there is no greater advantage than the perceived authority of the speaker — and it would be difficult to imagine a more authoritative voice on the legal response to the 9/11 atrocities than Ted Olson.
I could not admire Ted more. He is one of the great lawyers in the United States, and has been for decades. For much of his career, he was a pillar of the sort of Justice Department that now seems a distant memory: the sort that elevated the rule of law above partisan politics.
Olson was the solicitor general of the United States on September 11, 2001, when jihadist suicide-hijacking attacks killed nearly 3,000 Americans. Because of that position in the Justice Department’s upper echelon, and because he most deservedly had the trust of President George W. Bush, Olson was at the forefront of the government’s legal response to the most brutal act of war committed on American soil since Pearl Harbor.
Such responsibilities, daunting as they were, seem almost trivial in comparison to 9/11’s ramifications for Olson’s personal life. As he related in a moving op-ed published in the Wall Street Journal on Thursday, his wife, Barbara Olson, was among the passengers killed by the terrorists when they crashed Flight 77 into the Pentagon. Reading it takes the breath away, even for those of us who were enmeshed in counterterrorism at the time, who had relationships stretching back years with the families of many of the fallen, and who like to think we understand the anguish, though we really can’t:
I remember exactly where I was standing on Sept. 11, 2001, when I heard my wife Barbara’s voice over the phone moments before her plane crashed into the side of the Pentagon. She told me that hijackers had taken over her flight from Washington to Los Angeles, where she was heading for a television appearance. She spent her last few minutes trying to figure out how to stop the unfolding tragedy. The weight of the disaster was overwhelming. It was personally devastating for me and for the thousands of others who lost family and friends that day, and it was devastating for our nation. I knew then that life would never be the same in this country.
He is right: It never has been the same. We are the worse for the events of that terrible day, and there is plenty of blame to go around for that on both sides of the intense debate over the proper role of the justice system in an asymmetrical war against a barbaric enemy. It is blame we share despite our good intentions, and perhaps because we’ve too often failed to credit the good intentions of those with whom we disagreed.
The focus of Olson’s piece is the conundrum we’ve previously discussed here: terrorists who should be put to death but can’t be tried. It should go without saying that he writes as someone who was both personally aggrieved by the attacks and professionally engaged in the government’s response to them. But ever the patriot, he also aims to help Joe Biden out of a bind that is not of Biden’s own making but that only Biden, as the president, can address.
As we’ve observed for months, the Biden administration is struggling to resolve an untenable, infuriating impasse: the inability over 22 years to try, convict, and execute jihadists we know orchestrated al-Qaeda’s 9/11 operation. The president clearly wants to end this debacle through a bargain in which the Justice Department takes the death penalty off the table and the terrorists admit guilt and accept life sentences.
Olson argues that such a deal is “the best the U.S. government can do at this point,” and he’s right.
The detainees were subjected to what the Bush administration euphemistically described as “enhanced interrogation techniques,” and what progressive Democrats label “torture,” a conclusion on which they will brook no dissent (no matter that Nancy Pelosi and other top Democrats were briefed on it in real time). Even if one does disagree with the torture accusation, two things must be stipulated. First, some of the methods used by American officials, and all of them in the aggregate, shock the conscience. Second, even those of us who were open to the argument that exerting extreme physical and psychological pressure on detainees could be justified in a ticking-bomb scenario — i.e., a dire situation in which thousands of people could be killed if a particular piece of intelligence weren’t obtained immediately — could never agree that statements adduced by such methods should be admissible evidence in a trial. Our very understanding of what a trial is would be corrupted beyond recognition by such a development.
Because the detainees were subjected to abusive interrogation techniques, military prosecutors in the commission system that has jurisdiction over the case may not have sufficient evidence to prove that they are guilty of the mass murder they are brazenly proud of orchestrating — and even if that hurdle could be overcome somehow, it is likely the commission would decline to impose the death penalty.
Then there is the “laws of war” problem, which I periodically and inconveniently note as commentators left and right decry the continuing operation of the detention center at Guantanamo Bay and “forever wars.” The laws of war permit detention of enemy combatants only until the conclusion of hostilities; once combat operations are over, detainees must be charged with war crimes or released. Many of the 34 detainees still held at Gitmo (and even more who have already been released) cannot be tried, not just because of the interrogation methods used on some of them but because the evidence against them can’t be exposed without compromising U.S. intelligence-gathering methods and sources. Yet if released, those detainees would likely return to anti-American jihadism.
Critics want the war to be over and Gitmo to be shuttered this instant. Naturally, though, they don’t want to be held responsible for the foreseeable outcome of that scenario: Terrorists who are released will kill more Americans and other innocent people. Still, the law is the law. Olson, again, is correct in saying that detainees who can’t and won’t be charged, and who have been cleared for release, should be transferred to countries willing to take them. If they’ve been cleared, that is a governmental judgment that they are no longer seen as combatants. And if they’re no longer seen as combatants, there is no legal authority to detain them, notwithstanding the risk that they could return to terrorist activities.
Biden has botched many things. He is to be blamed, however, for none of this. The job he has is the world’s toughest because it requires making gut-wrenching, politically fraught calls. If he is to be faulted, it is only for being too craven to take the heat for decisions that are certain to be unpopular with many, if not most, Americans. Thus has the White House tried to deflect responsibility for the entire mess, as if it were solely up to the Defense Department and the military commission to decide what to do — as if the armed forces were not subordinates of the commander in chief.
That is the breach into which Olson is stepping. Now, assuming there finally is a plea bargain to end the 9/11 case, Biden will be able to say that if this resolution is good enough for Ted Olson, it ought to be good enough for you.
And so it should.
Even we who supported the commissions must admit that they’ve been a disaster. Looking back, Olson now believes that they were doomed from the start. I’m less sure about that. I believed, and proposed, that Congress should devise a national-security court for alien enemy combatants — a tribunal that would combine the best aspects of the civilian justice system (in particular, independent Article III judges who had done a commendable job on terrorism cases in the years prior to 9/11) with aspects of the military justice system that made it easier to shield intelligence from our wartime enemies. But there was no appetite for such a court, and forced to choose between two poor fits, I believed the military-commission system, though experimental, would be better than the civilian justice system in which I’d prosecuted terrorists in the 1990s.
And it is here that, while agreeing with his bottom line, I part company with Olson’s critique.
According to Olson, “The established legal system of the U.S. would have been capable of rendering a verdict in these difficult cases, but we didn’t trust America’s tried-and-true courts.” Respectfully, trust in the capacity of our courts to render just, reliable verdicts was never the issue. The Obama administration and top Democrats repeated that talking point endlessly, but it was perfectly obvious that district judges, particularly in the Southern District of New York in the years after the 1993 World Trade Center bombing, did a stellar job presiding over terrorism trials. The outcomes of those cases were just, although I’d note that the bombers of U.S. embassies in Kenya and Tanzania were not executed in their capital case, which under the circumstances they should have been.
The actual objection to the civilian justice system was the mismatch between, on the one hand, the presumptions and due-process requirements of the civilian judicial system, and on the other hand, the exigencies of a hot war against very capable jihadist organizations that were continuing to plot operations against U.S. civilian, political, and military targets.
As I can attest, having had to make discovery in terrorism prosecutions, compliance with due-process standards applicable to criminal trials required providing our enemies with valuable intelligence that made them more lethal. It was irresponsible to do this even back in 1993, when we didn’t have as much experience with such cases — just the one major attack against the World Trade Center in February of that year, followed immediately by an unsuccessful plot to bomb other New York City landmarks. There would be no excuse for continuing to do it once our government went to war against these enemies after 9/11, which itself happened only after a series of deadly jihadist operations: the so-called Bojinka plot to explode U.S. airliners in midflight in 1994 (one tourist killed by a test bomb); the Khobar Towers bombing in Saudi Arabia in June 1996 (19 members of the U.S. Air Force killed); the aforementioned bombing of embassies in eastern Africa in August 1998 (over 200 killed); the plot to bomb Western tourist sites in Jordan in late 1999 (a failed attack); the plot to bomb Los Angeles International Airport on December 31, 1999 (a failed attack); the plot to bomb the U.S.S. The Sullivans in Yemen on January 3, 2000 (a failed attack); and the bombing of the U.S.S. Cole in Yemen in October 2000 (17 U.S. Navy personnel killed).
It is undoubtedly true that the civilian justice system would have done a better job than the military commissions. It is not at all certain that that would have resulted in convictions and executions for the 9/11 bombers. If the persistent problem with resolving the 9/11 case is the impact of forcible interrogations, it’s not a problem a civilian trial would have solved — it would have complicated both the liability phase, and then the death-penalty phase, for any defendants who’d been found guilty. Nevertheless, the objection to civilian trials was not about the system’s ability to produce trustworthy results; it was that the national interest in trustworthy results was not as high as the national interest in refraining from providing intelligence to enemies actively trying to kill Americans.
Ted Olson is right: It is time to close the book on the 9/11 litigation. The Biden administration should withdraw the government’s intention to seek the death penalty and allow a plea deal in which the 9/11 defendants are incarcerated for life. Otherwise, the stalemate could go on for many more years: There is no realistic prospect of a trial on the horizon, much less a trial in which the terrorists are convicted and executed.
Meantime, Congress needs to examine our Nuremberg-driven assumption that war criminals who commit mass murder must be given a proceeding approximating a criminal trial before they may be executed. It is simply a fact that we are never going to presume the innocence of such offenders or release them if they are somehow acquitted. So why pretend otherwise?
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https://www.dailymail.co.uk/news/article-11716267/Biden-quietly-releases-terrorist-Belize-16-years-CIA-custody-Guantanamo-Bay.html
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Judge releases three Muslim men, calls informant a ‘villain’
Says FBI created false terrorist plot
BY MICHAEL HILL ASSOCIATED PRESS ALBANY, N.Y. | In a scathing ruling last month, a federal judge said the FBI had used a “villain” of an informant to manipulate a group of Muslim men into going along with a fictitious plot to destroy military planes and synagogues in New York City’s suburbs. She ordered three men released from prison, saying that “the real lead conspirator was the United States.”
Now, a man convicted in another sting carried out by the same FBI operative says he hopes the ruling will prompt prosecutors to review similar counterterrorism operations carried out in the wake of the 9/11 terror attacks.
“Hopefully, this will be the first step for the Justice Department to review all those cases of conspiracy and entrapment,” said Yassin Aref, a former imam who spent 14 years in federal custody in a case involving a business loan made to an Albany pizza shop owner and a made-up story about a Stinger missile.
Aref and the shop owner were arrested in 2004 in one of several FBI stings carried out by a paid civilian operative named Shahed Hussain, whose work has been criticized for years by civil liberties groups.
Hussain entered the U.S. with his wife and two sons in the 1990s after he was accused of murder — falsely, he once testified — in his native Pakistan. He settled in the Albany area and was working as a translator when he got caught helping someone get their driver’s license illegally. In exchange for leniency, he started working for the FBI.
American law enforcement at the time was on a massive hunt for terrorist “sleeper cells” planning attacks on U.S. soil. Hussain worked with the FBI to approach people suspected of being sympathetic to Islamic militant groups and see if they could be talked into committing an illegal act.
One target was a group of four men from Newburgh, New York, who were arrested in 2009, convicted of plotting deadly antisemitic attacks and sentenced to 25 years in prison.
Courts have upheld their convictions, finding they knowingly became eager participants in a plot to plant explosives at a Bronx synagogue.
But when three of the four applied for compassionate release, U.S. District Judge Colleen McMahon granted the request, saying the FBI had sent a master manipulator “to troll among the poorest and weakest of men for ‘terrorists’ who might prove susceptible to an offer of much-needed cash in exchange for committing a faux crime.”
In a ruling July 28, Judge Mc-Mahon called them “hapless, easily manipulated and penurious petty criminals” who had no connection to any terrorist group and had “never remotely contemplated” violent extremism before they met Hussain.
The ruling resonated with defendants and attorneys in a case Hussain helped build in 2004 against two men involved with an Albany mosque — Aref and former pizza shop owner Mohammed Hossain.
Posing as a successful businessman, Hussain befriended Hossain, eventually offering to lend him $50,000 for his struggling business. But he also told the pizza shop owner the money would come from the sale of a shoulder-fired missile, imported from China, to a group that wanted to kill a Pakistani diplomat in New York City.
Hossain later said he thought the talk about an attack was a joke and that the missile he was shown was a plumbing supply. For religious reasons, he asked his imam, Aref, to witness the business transaction, much like a notary.
Aref and Hossain, now free after serving long prison terms for money laundering concealing material support for an attack with a weapon of mass destruction and giving material support to a terrorist organization, say they were innocent.
Defense lawyers said they were manipulated to take part in a deal they didn’t understand.
The FBI declined to comment. Emails seeking comment were sent to the Department of Justice and the regional U.S. attorney’s office.
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Perhaps misfiled, but in this current climate where nitwits are proudly standing with Hamas while others take their pictures, identify them, and then publish the results, this piece finds relevance, basically stating the 1st amendment protects that sort of speech, while any subsequent criminal act is the responsibility of the criminal actor:
https://reason.com/volokh/2023/10/16/the-cecil-the-lion-killing-dentist-civil-rights-boycott-noncompliers-and-hamas-supporters/
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BBG:
Good call on using this thread-- I just added Doxxing to the name of the thread.
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This likely encompasses my view, though somewhat uncomfortably as I’ve been on the receiving end:
https://reason.com/volokh/2023/10/15/some-cancellations-are-justified/
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I’m a fan of Ambrose Bierce, an American Civil War era author, cynic, and creator of the fabulous The Devil’s Dictionary, wherein he defined the term “noncombatant” as “A dead Quaker.”
That cynical view is apt now as Hamas embeds itself and its crew served and other weapons amid non-combatants, fire said weapons, and then have film crews standing by to document and indeed falsify the carnage as is the “Pallywood” standard. This piece was written a couple years ago and has been updated to address these ploys and the morality of Israel’s response:
https://legalinsurrection.com/2023/10/video-israel-complies-with-the-law-of-armed-conflict-when-defending-against-terrorists-hiding-among-civilians-2/?utm_source=rss&utm_medium=rss&utm_campaign=video-israel-complies-with-the-law-of-armed-conflict-when-defending-against-terrorists-hiding-among-civilians-2
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2nd post. FAFO:
https://www.campusreform.org/article?id=24162
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3rd (actually 4th) post. Jewish students/Israeli sympathizers facing pushback and attacks on campus. The value of a higher ed degree has been shedding value of late, now the mask is being ripped off any pretense of deliberation and informed debate occurring at colleges, with the parents writing checks exposed to it all. Doesn’t bode well for the institutions I’d guess:
https://www.thecollegefix.com/violence-threats-tears-israeli-supporters-face-aggressive-pro-palestinian-campus-protests-nationwide/?fbclid=IwAR3Fgh8JakdzxcKQIHXiqTXWxXjw6A1ocEFWpf5jRRvuw2cG9WvJbDVJCZc
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Good posts, but not really within the rubric of "legal issues".
One of the Education threads or the SJW thread might be better calls.
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Israel Faces Pressure to Yield to the ‘Terrorist Veto’
The strategic consequence of any pause, truce or cease-fire is to increase Hamas’s odds of survival.
By John Bolton
Dec. 1, 2023 5:59 pm ET
There is a tension between Israel’s two objectives of eliminating Hamas as a political and military force and recovering the innocent civilians kidnapped on Oct. 7. Weighing these competing priorities, Israel decided to pause its anti-Hamas military campaign in exchange for the return of some hostages. This policy’s wisdom is debatable.
A greater hazard, however, imperils Israel’s legitimate right to self-defense. I call it the “terrorist veto,” and with every passing day, Israel’s chances of escaping it diminish, notwithstanding Friday’s resumption of hostilities. For many people, the not-so-hidden goal of the hostage negotiations is to focus international attention—and emotions—on pausing hostilities indefinitely and tying Israel’s hands militarily. Whether labeled a pause, truce or cease-fire, the strategic consequences are objectively pro-Hamas. Using human bargaining chips and fellow Gazans as shields, Hamas seeks to prevent Israel from eliminating its terrorist threat.
Success for Hamas means merely surviving with a limited presence in Gaza, particularly a Gaza rebuilt as it was before Oct. 7. This result is a terrorist veto, even if military-pause supporters resist this painful but accurate term.
If the Hamas veto succeeds, other barbarians such as Hezbollah and Tehran’s mullahs (the ultimate enemy here) can insulate themselves from the consequences of their terrorism. Even worse, the terrorist veto can be copied by barbaric nation-states, with victims of aggression rendered unable to vindicate their sovereignty and territorial integrity. Ukraine and Taiwan come to mind as potential victims of this new paradigm.
President Biden and others deny trying to block further military action, but that is precisely the effect of their policies. On Wednesday CNN said Mr. Biden’s policy rests on three pillars: releasing the hostages, stepping up aid into Gaza, and figuring out what happens after the war. No mention of eliminating Hamas. Meantime, some Democratic senators are pressing for conditions on aid to Israel to restrict its military operations, to which Mr. Biden has alluded positively.
However the arguments for prolonging the initial or subsequent pauses are made, Israel will face three potentially debilitating consequences if it ceases or limits its military campaign. First, despite strong statements by many Israelis, in government and out, the country’s resolve is weakening. Right after Oct. 7, Jerusalem perhaps was prepared to hear U.S. military advisers caution that subduing resistance in Mosul and Fallujah took between nine months and a year. Then, Israelis might have been committed to a long struggle, but it seems unlikely they still are after this initial pause. Declining Israeli resolve guarantees that Hamas won’t be eliminated.
Cease-fire advocates argue that because Israel persuaded a million Gazans to move south before its initial campaign, Gazan “civilian” casualties in further operations in the south will dwarf previous casualties. Although Hamas and Iran initially placed Gazans in harm’s way, international recrimination will unfairly fall on Israelis, further sapping their resolve.
Second, because Hamas, Iran and their allies likely gain more militarily from the pause than Israel, the human costs to Israeli’s military will rise, as will domestic opposition to Prime Minister Benjamin Netanyahu’s objectives. It may be impossible to count incremental Israel Defense Forces casualties due to the pause, but the tally could exceed the number of hostages released.
Third, the greater the pauses or limitations, the more time Hamas’s surrogates worldwide have to increase anti-Israel pressure on their governments. In turn, many governments will lean on Israel to accept less, probably far less, than Mr. Netanyahu’s stated objectives.
The White House is urging, post-hostilities, turning over responsibility for Gaza to the Palestinian Authority. That utterly ignores its dismal performance in the West Bank, where the authority has been ineffective, corrupt and covertly supportive of terrorism. By some accounts Hamas is now more popular in the West Bank than Gaza. Extending Palestinian Authority control would put Israel back under the threat that surged on Oct. 7. The only long-term solution is to deny Hamas access to concentrated, hereditary refugee populations by resettling Gazans in places where they can enjoy normal lives.
Winston Churchill’s observation that “without victory, there is no survival” directly applies to Israel’s crisis. Victory for Israel means achieving its self-defense goal of eliminating Hamas. Anything less means continuing life under threat, with Tehran and its terrorist surrogates confident that when Westerners say “never again” they don’t really mean it.
Mr. Bolton is author of “The Room Where It Happened: A White House Memoir.” He served as the president’s national security adviser, 2018-19, and ambassador to the United Nations, 2005-06
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LGBQTLMNOP groups keep mum on the matter ‘cause intersectionality or some such:
https://x.com/MrAndyNgo/status/1767944348375642444?s=20
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Andy Ngo is fg fearless.