Anyone who has ever read this blog knows that the troubles in Somalia are a pet issue of mine. Yesterday the Justice Department revealed that it has filed terrorism charges against several Somali ex-patriots. The charges are against 14 individuals from the Minneapolis, Minnesota area who recruited and raised money to send 20 Somali-Americans to fight in Somalia for the terrorist group al Shabaab. Minnesota is not exactly known as a hot-bed for terrorist activity, but apparently a good number of Somalis fled the country in the early 1990's when the government collapsed and settled in the Minneapolis area. In recent years struggle over the country has continued between an internationally recognized and supported central government and extremist groups - most notably al Shabaab. This struggle led to an influx of foreign troops from Ethiopia and other African countries to help the central government regain control of the capital Mogadishu and the rest of the country. Al Shabaab has rallied a good deal of support to fight the foreign influence of other African countries and U.S. support. The New York Times reports that al Shabaab has used the internet as a tool through which to recruit foreign fighters including those from the U.S. One of the men recruited by those indicted in this case is Shirwa Ahmed who became the first known American suicide bomber. The men here are charged under material support statutes as well as related conspiracy statutes.
National security implications here are clear. The indictments allege that these men attended al Shabaab training camps in Somalia where they were indoctrinated in anti-Americanism. While there are no allegations that these men were planning any attacks here in the U.S., it would not be too much of a stretch to believe that such plans could easily develop.
Here is the DoJ press release. Also: Omar indictment, Faarax-Isse indictment, other indictment.
Tuesday, November 24, 2009
Monday, November 23, 2009
A Bellwether for 9/11 Trials
I've been shamefully neglectful of this blog lately and I apologize. I'm going to try to pick things up a little bit. I think that this story in the New York Times today is right on point about an upcoming terrorism trial in New York City forecasting what may come to pass in the future trials for the recently transferred Gitmo detainees that took part in 9/11. The possible predictor case is the one against Ahmed Ghailani (a past post about him can be found here). Ghailani is being tried for his participation in the 1994 bombings of the U.S. embassies in Kenya and Tanzania. The article contains quotes from Ghailani's attorneys that say that the similarities between their client's case and those of the 9/11 conspirators are superficial only. While that may be true the superficially similar issues couldn't be more important. Those similar issues include: confinement at Gitmo, statements obtained through torture, and harsh conditions of confinement. All of these, especially statements obtained through torture, could pose major obstacles for federal prosecutors as they try to get convictions for Ghailani and the 9/11 terrorists.
Another major issue that Ghailani is challenging is his right to a speedy trial. This issue isn't as high-profile as the other, but nonetheless important. In the federal system a defendant is entitled to two types of speedy trial protection - statutory and constitutional. By statute (18 U.S.C. 3161) federal prosecutors must file an indictment within 30 days of a defendant's arrest and then, if he pleads not guilty, trial must commence within 70 days of the filing of the indictment or the defendant's first appearance in court. The constitutional protection of the right to a speedy trial comes from the Sixth Amendment. Courts balance several factors to determine whether or not a defendant's constitutional right to a speedy trial has been violated. If Ghailani were a normal criminal defendant there is no doubt his case would be thrown out on speedy trial grounds. He was captured by U.S. forces in Pakistan in 2004 and was reportedly moved around between several U.S. run "black site" prisons before finally winding up in the military prison at Guantanamo Bay. Therefore, he has been held for five years without being indicted. Even under the more lenient constitutional speedy trial standard a federal court should throw out his case. But Ghailani is not a normal criminal nor a normal defendant in a federal prosecution. He's been held by the U.S. government for five years with no hint of prosecution, but during the majority of that time is was the strong belief of the U.S. government that he was more a prisoner of war than a criminal. Like it or not that was the official position of the government during the Bush administration, and therefore no federal criminal procedures were started in his case. Because of the federal government's position regarding men like Ghailani I definitely don't see his speedy trial motion succeeding. The judge in charge of this case would have to be extremely bold to consider throwing this case out on those grounds. First of all, he would be vilified in the court of public opinion. Second of all, the judge has legal avenues through which to deny the speedy trial challenge. As I said, the constitutional analysis of speedy trial is based on a balancing test, one factor of which is the reason for the delay. The reason for this delay was that the U.S. government's policy was that Ghailani was not a prisoner subject to the federal criminal justice system. There was literally no way for federal prosecutors to bring a case against him before now. That sounds like a pretty good reason to me. The statutory speedy trial also contains exceptions, one of which allows a judge to consider the interests of justice. That is usually a catch all provision that comes in to play only in extreme circumstances. I would consider this to be an extreme circumstance. There are probably multiple other arguments that prosecutors will make regarding this motion, but I just thought that an overview of a couple would be helpful here. Again, I don't think that there is any chance that the judge grants this motion, for multiple reasons, but it is a novel and interesting legal issue in these cases.
The last thing I will mention about this NYT article is that I think it gives a small, but fascinating window into how high-profile, highly sensitive terrorism trials will work. I'm specifically talking right now about the defense attorneys will go about properly preparing to defend their clients. These cases inevitably involve a great deal of top secret information which people not in government service are unable to look at. This has been a major area of contention as to how terrorism prosecutions can actually be carried out. One side argues that you can't allow a lot of terrorists to be prosecuted because it will lead to the leak of sensitive intelligence which will harm national security. Others argue that we have to prosecute those terrorists that we capture for the sake of sticking to our constitutional values. Both arguments have merit. The article reveals that Ghailani's attorneys have obtained security clearances from the government, and the judge in the case has set up a secured room in which the attorneys can view classified information related to the case and prepare written submissions based on that classified information. This seems like a logical and efficient way to deal with this issue. It still raises concerns of course. One of those concerns is that these are private attorneys that are being allowed to view highly classified information. I think the idea of non-governmental entities looking at classified information still makes people nervous, but they are still subject to criminal penalties for revealing that information just as those that work for the government are. Also, let's face it, those that work for the government and have security clearances are always the most tight-lipped people around.
No matter how you feel about it, we have entered the time where the U.S. is again treating terrorists more as criminals than soldiers. That means that terrorists will be tried in civilian courts of law. Questions still remain: What is the best way to carry out a terrorism prosecution? Can federal courts as they exist now effectively try terrorists or is it too burdensome? Do we need some kind of stand alone judicial entity such as a national security court to handle sensitive national security issues? How the Ghailani trial unfolds will provide some answers, but not all of them. I believe that if the trials of the 9/11 conspirators happen (That is, as long as the defendants in those cases don't plead out which it does not look like they are going to) we will get a good look at how the U.S. federal court system can handle high-profile terrorism trials. At that point, hopefully, this country will get some good guidance as to what procedures it needs to implement with terrorists from the moment of capture to the end of trial. I think these trials will end up being historic events in America's continuing fight against terrorism.
Another major issue that Ghailani is challenging is his right to a speedy trial. This issue isn't as high-profile as the other, but nonetheless important. In the federal system a defendant is entitled to two types of speedy trial protection - statutory and constitutional. By statute (18 U.S.C. 3161) federal prosecutors must file an indictment within 30 days of a defendant's arrest and then, if he pleads not guilty, trial must commence within 70 days of the filing of the indictment or the defendant's first appearance in court. The constitutional protection of the right to a speedy trial comes from the Sixth Amendment. Courts balance several factors to determine whether or not a defendant's constitutional right to a speedy trial has been violated. If Ghailani were a normal criminal defendant there is no doubt his case would be thrown out on speedy trial grounds. He was captured by U.S. forces in Pakistan in 2004 and was reportedly moved around between several U.S. run "black site" prisons before finally winding up in the military prison at Guantanamo Bay. Therefore, he has been held for five years without being indicted. Even under the more lenient constitutional speedy trial standard a federal court should throw out his case. But Ghailani is not a normal criminal nor a normal defendant in a federal prosecution. He's been held by the U.S. government for five years with no hint of prosecution, but during the majority of that time is was the strong belief of the U.S. government that he was more a prisoner of war than a criminal. Like it or not that was the official position of the government during the Bush administration, and therefore no federal criminal procedures were started in his case. Because of the federal government's position regarding men like Ghailani I definitely don't see his speedy trial motion succeeding. The judge in charge of this case would have to be extremely bold to consider throwing this case out on those grounds. First of all, he would be vilified in the court of public opinion. Second of all, the judge has legal avenues through which to deny the speedy trial challenge. As I said, the constitutional analysis of speedy trial is based on a balancing test, one factor of which is the reason for the delay. The reason for this delay was that the U.S. government's policy was that Ghailani was not a prisoner subject to the federal criminal justice system. There was literally no way for federal prosecutors to bring a case against him before now. That sounds like a pretty good reason to me. The statutory speedy trial also contains exceptions, one of which allows a judge to consider the interests of justice. That is usually a catch all provision that comes in to play only in extreme circumstances. I would consider this to be an extreme circumstance. There are probably multiple other arguments that prosecutors will make regarding this motion, but I just thought that an overview of a couple would be helpful here. Again, I don't think that there is any chance that the judge grants this motion, for multiple reasons, but it is a novel and interesting legal issue in these cases.
The last thing I will mention about this NYT article is that I think it gives a small, but fascinating window into how high-profile, highly sensitive terrorism trials will work. I'm specifically talking right now about the defense attorneys will go about properly preparing to defend their clients. These cases inevitably involve a great deal of top secret information which people not in government service are unable to look at. This has been a major area of contention as to how terrorism prosecutions can actually be carried out. One side argues that you can't allow a lot of terrorists to be prosecuted because it will lead to the leak of sensitive intelligence which will harm national security. Others argue that we have to prosecute those terrorists that we capture for the sake of sticking to our constitutional values. Both arguments have merit. The article reveals that Ghailani's attorneys have obtained security clearances from the government, and the judge in the case has set up a secured room in which the attorneys can view classified information related to the case and prepare written submissions based on that classified information. This seems like a logical and efficient way to deal with this issue. It still raises concerns of course. One of those concerns is that these are private attorneys that are being allowed to view highly classified information. I think the idea of non-governmental entities looking at classified information still makes people nervous, but they are still subject to criminal penalties for revealing that information just as those that work for the government are. Also, let's face it, those that work for the government and have security clearances are always the most tight-lipped people around.
No matter how you feel about it, we have entered the time where the U.S. is again treating terrorists more as criminals than soldiers. That means that terrorists will be tried in civilian courts of law. Questions still remain: What is the best way to carry out a terrorism prosecution? Can federal courts as they exist now effectively try terrorists or is it too burdensome? Do we need some kind of stand alone judicial entity such as a national security court to handle sensitive national security issues? How the Ghailani trial unfolds will provide some answers, but not all of them. I believe that if the trials of the 9/11 conspirators happen (That is, as long as the defendants in those cases don't plead out which it does not look like they are going to) we will get a good look at how the U.S. federal court system can handle high-profile terrorism trials. At that point, hopefully, this country will get some good guidance as to what procedures it needs to implement with terrorists from the moment of capture to the end of trial. I think these trials will end up being historic events in America's continuing fight against terrorism.
Thursday, October 29, 2009
A New Wrinkle in Kiyemba?
Yesterday Lyle Denniston of SCOTUSblog wrote a post drawing attention to Section 1041 of the National Defense Authorization Act which would bar the Department of Defense from transferring detainees at Guantanamo into the U.S. even when the transfer is court ordered. The new law seeks to prevent transferring detainees into the U.S. by not allowing the Secretary of Defense to use any money appropriated to him to effect a transfer.
Denniston's post says that this is a new issue in Kiyemba and while that is true I don't think that it actually puts a new wrinkle into the case. The bottom line determination that the Supreme Court will have to make is whether or not giving detainees the right to challenge their detention through habeas corpus without giving them the right to the remedy of release from detention is constitutional. Kiyemba is about Gitmo detainees that won their habeas challenges years ago but were then kept in captivity at Gitmo because a suitable country for relocation could not be found. For obvious reasons the government, the courts, and the American people did not want the detainees released in the U.S. While are reasons were obvious they are most likely not constitutional. How can you have a system by which those held in captivity can successfully challenge that captivity and not be released? A right without a remedy is useless. I realize that the situation with Gitmo detainees is not so black and white. Releasing those detainees into the U.S. could be a recipe for disaster. Some of those set for release could be hardened terrorists that won their habeas challenge because of lack of government evidence to justify detention. Some set for release may not have been terrorists at all when they were captured, but now that they have been wrongly held at Gitmo for years they may have developed a hatred for America which they may express violently. Regardless of all that though, I cannot see how the Court will come up with a convincing constitutional reason as to why detainees can challenge their detention and succeed but not be eligible for release.
Coming back around to my original point, what I'm trying to say is that while this new law may be an issue that has to be dealt with in Kiyemba, I do not think that it is going to tip the scales in favor of the government. If not granting a detainee release after a successful habeas challenge is unconstitutional then a new law attempting to halt the release of a detainee who is entitled to release is unconstitutional. In the end, I think this new law may add a few pages to the Court's decision but I don't believe that it will be a deciding factor.
*The closer we get to a decision in this case the more I hope that the government can figure it out on its own and avoid a decision by the Court. There are still a few months before oral argument and then time after that before the decision will be handed down. Hopefully the Gitmo situation, or at least the Uighur situation, will be resolved by that point. Administratively closing down that prison is much more desirable than judicially resolving it.
Denniston's post says that this is a new issue in Kiyemba and while that is true I don't think that it actually puts a new wrinkle into the case. The bottom line determination that the Supreme Court will have to make is whether or not giving detainees the right to challenge their detention through habeas corpus without giving them the right to the remedy of release from detention is constitutional. Kiyemba is about Gitmo detainees that won their habeas challenges years ago but were then kept in captivity at Gitmo because a suitable country for relocation could not be found. For obvious reasons the government, the courts, and the American people did not want the detainees released in the U.S. While are reasons were obvious they are most likely not constitutional. How can you have a system by which those held in captivity can successfully challenge that captivity and not be released? A right without a remedy is useless. I realize that the situation with Gitmo detainees is not so black and white. Releasing those detainees into the U.S. could be a recipe for disaster. Some of those set for release could be hardened terrorists that won their habeas challenge because of lack of government evidence to justify detention. Some set for release may not have been terrorists at all when they were captured, but now that they have been wrongly held at Gitmo for years they may have developed a hatred for America which they may express violently. Regardless of all that though, I cannot see how the Court will come up with a convincing constitutional reason as to why detainees can challenge their detention and succeed but not be eligible for release.
Coming back around to my original point, what I'm trying to say is that while this new law may be an issue that has to be dealt with in Kiyemba, I do not think that it is going to tip the scales in favor of the government. If not granting a detainee release after a successful habeas challenge is unconstitutional then a new law attempting to halt the release of a detainee who is entitled to release is unconstitutional. In the end, I think this new law may add a few pages to the Court's decision but I don't believe that it will be a deciding factor.
*The closer we get to a decision in this case the more I hope that the government can figure it out on its own and avoid a decision by the Court. There are still a few months before oral argument and then time after that before the decision will be handed down. Hopefully the Gitmo situation, or at least the Uighur situation, will be resolved by that point. Administratively closing down that prison is much more desirable than judicially resolving it.
Tuesday, October 20, 2009
Cert Granted on Kiyemba
IT'S ON PEOPLE!!! Voodoo's favorite detainee case will be heard by the Supreme Court some time in February or March. It's been a long road. The Court tried desperately to give the government more time to get all of the petitioners in the case out of Gitmo, but it was unable to do so. The government will have until the day the Court decides the case to transfer the remaining Uighurs out of Gitmo thereby making the case moot and allowing the Court to not decide the major issue in the case. If the Court does decide the major issue then we will have an answer as to whether the government must release into the U.S. Gitmo prisoners that have prevailed in their habeas challenges. However the Court comes out on the case there will be a major outcry. Stay tuned.
Friday, October 9, 2009
Senate Judiciary Paves Way for USA PATRIOT Act Extension
A bill extending parts of the USA PATRIOT Act (trivia fact: the name is actually an acronym standing for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism") passed through the Senate Judiciary Committee yesterday. The bill that passed through the committee does not change very much of the act but it does affect one notably controversial provision - the one dealing with National Security Letters ("NSL's). NSL's are essentially administrative subpoenas that are issued by the FBI and other agencies to obtain information about individuals from companies such as telecommunications companies and financial companies. The controversial aspect of NSL's was the virtual absence of judicial oversight. A federal agency could essentially send the NSL out to a company with no review or sanction by a court and there was no way for the company to challenge the subpoena. The lack of judicial oversight has since changed, but the NSL's are still controversial. The new proposed bill coming out of the Senate Judiciary contains some changes that would tighten up the standard for issuance of NSL's and require "specific facts" as to relevance.
Friday, October 2, 2009
Downward Spiral Continues in Somalia
The U.S. is delaying aid to Somalia for fear that U.N. officials are illegally funneling the aid to the terrorist group al Shabbab. According to this New York Times article the U.S. is by far the biggest contributor of aid to Somalia, a country where thousands upon thousands are dying of malnutrition.
While the aid is not expected to be cut off permanently this delay situation is a catch-22. While cutting off aid is aimed at not helping al Shabbab it indirectly does help them. The more desperate the Somali population becomes the more susceptible it will be to control by terrorist organizations like al Shabbab. It's also important to note that one reason we went into Somalia in the early 90's was to secure food and aid distribution which was being controlled by warlords. I don't want to get ahead of myself or make absurd predictions, but it's starting to look more and more to me like the U.S. may engage in some sort of intervention in that country.
While the aid is not expected to be cut off permanently this delay situation is a catch-22. While cutting off aid is aimed at not helping al Shabbab it indirectly does help them. The more desperate the Somali population becomes the more susceptible it will be to control by terrorist organizations like al Shabbab. It's also important to note that one reason we went into Somalia in the early 90's was to secure food and aid distribution which was being controlled by warlords. I don't want to get ahead of myself or make absurd predictions, but it's starting to look more and more to me like the U.S. may engage in some sort of intervention in that country.
Worst Plan Ever
As a North Carolina native I've been remiss in not posting about this earlier, but there was not a whole lot to share about it up to now. Of course, I'm referring to Daniel Patrick Boyd and his band of lackeys. They were arrested back in July for planning a terrorist attack. I did not realize until now that they were planning to attack the Marine Corps base at Quantico, Virginia. Daniel Patrick Boyd, are you serious? Out of all the targets you could hit, why would you choose a major U.S. military installation? Not to mention that this particular military base is home to the elite FBI Hostage Rescue Team. It is a place crawling with highly trained warriors. I guess it is marginally less reprehensible than attacking a school bus full of innocent, unarmed children, but it's almost certain that an attack on Quantico would be swiftly and efficiently obliterated before it got very far at all. Furthermore, there was zero chance these jokers were ever going to stay out of jail long enough to get to the point where they were going to carry this out. All of the members of this conspiracy took multiple trips to terrorist hotspots such as Israel, Jordan, Kosovo, and Pakistan. On top of that they were buying all kinds of weapons. It's difficult to think of a better way to get yourself noticed than taking multiple trips to known terrorist countries, and buying up tons of weapons.
Anyways, those are just my thoughts on the situation. Here's the indictment in U.S. v. Boyd, et al.
Anyways, those are just my thoughts on the situation. Here's the indictment in U.S. v. Boyd, et al.
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