Legal Issues in the War w Islamic Fascism, Epidemic, Quarantine, and Doxxing

[Crafty_Dog]

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

[G M]

Newt is right. Props to Obama.

If only he weren't equally as lethal to America's economy and military strength.

[DougMacG]

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.

[Crafty_Dog]

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.

[Crafty_Dog]

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.

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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.

[Crafty_Dog]

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

[Crafty_Dog]

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.

[Crafty_Dog]

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.

[Crafty_Dog]

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.

[G M]

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". 

[bigdog]

Jack Goldsmith makes excellent points.

http://www.foreignpolicy.com/articles/2012/03/19/fire_when_ready

[Crafty_Dog]

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."

[bigdog]

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.

[G M]

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.
 

[G M]

**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]

[Crafty_Dog]

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.

[bigdog]

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.  

[G M]

Since there are clear lines, they must have been followed.  Therefore we can deduce that all of things that dislike about Obama never happened.   

Huh?

[bigdog]

Jack Goldsmith on The Daily Show.  Worth a look...

http://www.thedailyshow.com/watch/wed-april-4-2012/jack-goldsmith

[G M]

Jack Goldsmith on The Daily Show.  Worth a look...

http://www.thedailyshow.com/watch/wed-april-4-2012/jack-goldsmith

Interesting.

[Crafty_Dog]

  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.

[Crafty_Dog]

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.

[bigdog]

http://www.lawfareblog.com/

Run by some heavy hitters in the field.

[bigdog]

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.

[Crafty_Dog]

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.

[bigdog]

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.

[Crafty_Dog]

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.

[bigdog]

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.

[Crafty_Dog]

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"?

[Crafty_Dog]

BTW I've mentioned Harold Koh previously on a number of occasions.
==========================


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.

Enlarge Image


Close.
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

[Crafty_Dog]

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.

[Crafty_Dog]

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.

[Crafty_Dog]

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.

[G M]

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.

[Crafty_Dog]

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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Erik Simonsen
 .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.

[bigdog]

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.”

[Crafty_Dog]

Hat tip to BigDog

http://www.nationaljournal.com/magazine/when-the-whole-world-has-drones-20130321

[Crafty_Dog]

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.
================


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.”

[G M]

If we use a drone to drop a bucket of water onto a jihadist, is it still torture?

[bigdog]

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.

[bigdog]

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.

[Crafty_Dog]

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.
==================

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

[bigdog]

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.

[Crafty_Dog]

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.

[G M]

Remember when the left was outraged at Gitmo?

Then their guy got into office and suddenly: Yawn....

[Crafty_Dog]

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.

Enlarge Image
image
image
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.

[Crafty_Dog]

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.”

[Crafty_Dog]

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.

[Crafty_Dog]

http://nationalreview.com/corner/354298/closing-gitmo-still-terrible-idea-andrew-c-mccarthy

[Crafty_Dog]

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.
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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.