A Spanish magistrate judge has authorized an investigation into six former Bush administration officials for their role in creating a system that allowed torture at Gitmo. The list of officials includes: Alberto Gonzales, John Yoo, Doug Feith, William J. Hayes II, Jay Bybee, and David Addington. Baltasar Garzon, the investigating magistrate responsible for authorizing the investigation, gave Spanish prosecutors the go ahead to start investigating those accused for violations of international law. Apparently Garzon is famous for starting investigations on high profile figures as he has authorized them in the past against Chilean dictator Augusto Pinochet, as well as Basques, islamic terrorists, and drug traffickers.
I'm not sure what spurred this action by Garzon, nor am I sure where he gets the power to conduct an investigation on U.S. officials. I'm unaware of any Spanish citizens that were held at Gitmo, but I could be wrong about that. Any result of this investigation would be purely symbolic as I'm sure that the U.S. would never turn those accused over to Spanish authorities if they found that they were guilty. While I don't agree with most of the things Gonzales and gang did during the Bush administration I think that it is a little ridiculous for the Spanish government to be wasting its time conducting an investigation on U.S. officials whom they have no jurisdiction over. That is a role more properly left for the International Criminal Court.
Sunday, March 29, 2009
Saturday, March 28, 2009
Battle Against Mexican Drug Cartels Parallels the Fight Against Terrorism
A few days ago Professor Robert Chesney made a statement that really struck home with me when he said that the new fight against Mexican drug dealers is similar in many ways to the "War on Terror." He pointed to a DoJ press release put out last week that detailed the Mexican Cartel Strategy which is a collaborative effort by many federal agencies and the Department of Justice. The MCS involves renewed efforts by DEA, ATF, FBI, and the U.S. Marshals Service that are targeted at dealing with the specific challenges that the Mexican cartels pose. DEA now has 29% of its special agents in the Southwestern U.S., and will be stepping up its efforts to control methamphetamine trafficking. ATF will focus its efforts on combatting gun running while the FBI will focus on investigating public corruption, extortion, and kidnapping, and the Marshals will keep their traditional focus of fugitive apprehension.
The focuses of these agencies aren't really a departure from their traditional roles, but the parallel between the the cartel strategy and the fight against terrorism is the cooperation between the agencies. After 9/11 alot of emphasis was put on cooperation between agencies rather than competition which had been the general atmosphere pre-9/11. Here with the cartel strategy you have a concerted effort between law enforcement agencies to combat an explosive situation. Another obvious parallel between the cartels and terrorism is the violence associated. In both situations you are dealing with people who have absolutely no regard for human life. The main difference is that the motivation for the cartels is financial while the motivation for terrorists is ideological. You can also look at the fact that the cartels use kidnapping as a tool for advancing their position just like terrorists in Iraq and Afghanistan have used.
While the fight against the drug cartels and terrorism isn't exactly the same they are both serious national security concerns since both threaten American lives. It will be interesting to see how the new effort against the cartels will work to stem the violence that is spreading into the U.S.
The focuses of these agencies aren't really a departure from their traditional roles, but the parallel between the the cartel strategy and the fight against terrorism is the cooperation between the agencies. After 9/11 alot of emphasis was put on cooperation between agencies rather than competition which had been the general atmosphere pre-9/11. Here with the cartel strategy you have a concerted effort between law enforcement agencies to combat an explosive situation. Another obvious parallel between the cartels and terrorism is the violence associated. In both situations you are dealing with people who have absolutely no regard for human life. The main difference is that the motivation for the cartels is financial while the motivation for terrorists is ideological. You can also look at the fact that the cartels use kidnapping as a tool for advancing their position just like terrorists in Iraq and Afghanistan have used.
While the fight against the drug cartels and terrorism isn't exactly the same they are both serious national security concerns since both threaten American lives. It will be interesting to see how the new effort against the cartels will work to stem the violence that is spreading into the U.S.
Wednesday, March 25, 2009
U.S. Looking to Back a New Leader in Pakistan?
An article in the NY Times today highlights the fact the U.S. is seeking to work with former/semi-present Pakistani leader Nawaz Sharif. Sharif has just recently returned to Pakistan after accepting an exile from the country in order to settle corruption charges in 1999. Upon his return he attempted to run for office until the Pakistani Supreme Court ruled that he could not do so. After that court decision Sharif led a successful movement to reinstate a Supreme Court justice that will likely overturn the court's previous decision and allow him to run for office.
The NYT article quotes a former Pakistani senator that says that Sharif holds a lot of popular support and is likely to be the "next guy Washington should talk to." While it may be true that Sharif holds popular support in Pakistan he seems to be a wild card as far as trying to figure out what kind of ally he will be for the U.S. In the past he has supported the installation of Islamic, aka Sharia, law in Pakistan. This is the kind of law that radical Islamic groups support, and interpretations of it justify the oppression of women amongst other harsh practices that Western countries often find abhorrent. Sharif also has direct ties to conservative Islam and some organizations that he has worked with in the past are linked to terrorism. Some say another strike against him is that he ordered Pakistan's first nuclear weapons test and thus intesified the regional conflict between Pakistan and India. I personally think that the ties to radical Islam are more disconcerting because our major concern with Pakistan right now is rooting out Al Qaeda and Taliban leadership, and a leader in Pakistan that is unwilling to assist in that task will be a major hindrance. The development of nuclear weapons in Pakistan was something that country felt it had to do to protect itself from an historical enemy in India, and I don't believe the U.S. of all countries can hold that against them.
Those that encourage U.S. support of Sharif say that his 8 years in exile have made him more wise and moderate than he was when he left Pakistan and thus more likely to work with the U.S. Supporters also say that he is essential in reaching out to jihadis because he has good relationships with them and will be able to facilitate cooperation between the West and Muslims that currently disagree with Western policies.
Based on this article Sharif seems to be an unknown quantity and I'd like to know some more about him before I decide one way or the other. My big reservation is that even if he is more moderate now and could work with the West wouldn't his cooperation with the West make him fall out of favor with the more conservative elements of Islam that he is supposed to help reach out to? I think the bottom line is that the West in general, but mostly the U.S., needs someone who will facilitate our mission to find Al Qaeda and Taliban leadership. I don't think there will ever be any reconciliation between those elements of radical Islam and the West so we need to continue our current aggressive policies. If we get a leader in Sharif who will help us in that fight then I think that his pull with conservative elements of Islam will erode and he will lose his ability to act as a facilitator to them.
The NYT article quotes a former Pakistani senator that says that Sharif holds a lot of popular support and is likely to be the "next guy Washington should talk to." While it may be true that Sharif holds popular support in Pakistan he seems to be a wild card as far as trying to figure out what kind of ally he will be for the U.S. In the past he has supported the installation of Islamic, aka Sharia, law in Pakistan. This is the kind of law that radical Islamic groups support, and interpretations of it justify the oppression of women amongst other harsh practices that Western countries often find abhorrent. Sharif also has direct ties to conservative Islam and some organizations that he has worked with in the past are linked to terrorism. Some say another strike against him is that he ordered Pakistan's first nuclear weapons test and thus intesified the regional conflict between Pakistan and India. I personally think that the ties to radical Islam are more disconcerting because our major concern with Pakistan right now is rooting out Al Qaeda and Taliban leadership, and a leader in Pakistan that is unwilling to assist in that task will be a major hindrance. The development of nuclear weapons in Pakistan was something that country felt it had to do to protect itself from an historical enemy in India, and I don't believe the U.S. of all countries can hold that against them.
Those that encourage U.S. support of Sharif say that his 8 years in exile have made him more wise and moderate than he was when he left Pakistan and thus more likely to work with the U.S. Supporters also say that he is essential in reaching out to jihadis because he has good relationships with them and will be able to facilitate cooperation between the West and Muslims that currently disagree with Western policies.
Based on this article Sharif seems to be an unknown quantity and I'd like to know some more about him before I decide one way or the other. My big reservation is that even if he is more moderate now and could work with the West wouldn't his cooperation with the West make him fall out of favor with the more conservative elements of Islam that he is supposed to help reach out to? I think the bottom line is that the West in general, but mostly the U.S., needs someone who will facilitate our mission to find Al Qaeda and Taliban leadership. I don't think there will ever be any reconciliation between those elements of radical Islam and the West so we need to continue our current aggressive policies. If we get a leader in Sharif who will help us in that fight then I think that his pull with conservative elements of Islam will erode and he will lose his ability to act as a facilitator to them.
Saturday, March 21, 2009
Two New Interesting Detainee Filings
Gherebi v. Obama
This filing by several prisoners being held at Gitmo challenges the new detention authority claimed by the Obama administration. It argues that the new detention authority claims to derive its power from the Authorization for Use of Military Force (AUMF), but that the AUMF says nothing about detention power thus the Executive is implying detention power from the AUMF. Petitioners say that the Hamdi and Hamdan rulings state that the AUMF is silent on detention authority, and that federal courts are very hostile to any argument that claims an implied delegation of authority from Congress.
My favorite argument in this brief is that Congress has passed legislation in which it expressly lays out criminal process authority. The brief cites 18 U.S.C section 2339 which seeks to punish those that "materially support" terrorist activity, and it also cites to the PATRIOT Act. Petitioners point out that both pieces of legislation include an explanation of the detention power that attaches to the statute. The argument here is why would Congress define detention authority in some terrorism-related legislation, but not all of it. If Congress can define a statute's detention process then it will do so and any attempt to imply detention authority is done only through what the brief terms, "executive fiat."
The filing's second main argument is that the law of war is violated when those that are merely affiliated with Al Qaeda are detained under the power of the law of war. Petitioners say that in order to detain an "unlawful combatant" (which is the term used to describe suspected terrorists) under the law of war the detaining party must be able to show that the detainee committed a specific act which would allow such authority. Since that is the standard recognized under international law the U.S. cannot detain a person based on affiliation with a terrorist group.
The ultimate request made by the filing is that the court not decide each petitioner's case under the AUMF authority urged by the government, but rather decide each case under the traditional law of war.
Check out the SCOTUSblog article on this filing.
Parhat v. Gates
In another filing one of the Uighurs (see Kiyemba) is asking for a finding of contempt against Secretary of Defense Gates for failure to comply with a previous order issued by the D.C. Circuit Court telling Gates to either release Parhat, transfer him, or have another Combatant Status Review Tribunal in his case. Petitioner argues that since Gates has not transfered him, cannot release him into the U.S. (again see Kiyemba), and decided not to hold another CSRT that he is refusing to do what the court ordered him to do and thus should be sanctioned.
The argument here is that SecDef Gates's noncompliance is "unexcused", but I would strongly disagree with that. The brief admits that the U.S. has engaged in diplomatic efforts with 100 different countries to try to transfer Parhat, but no one wants him. If Gates can't transfer him then he could release him, but the recent Kiyemba decision says that a court cannot order the release of anyone at Gitmo into the U.S. Parhat argues that while a court cannot order Gates to do it, Gates can do it of his own volition. While Gates may have to power to do so (and I'm not totally sure it is only his decision to make) he would face severe public outcry and I could foresee more litigation against him for endangering the public by releasing a known terrorist into the country. The other option given to Gates was to hold another CSRT for Parhat, but CSRT's were found inadequate by Boumediene.
Gates is stuck between a rock and a hard place with Parhat, and other Uighurs that are similarly situated, because he can't win. He can't transfer them without the permission of another suitable country, he can't release them into the U.S. without endangering the public, and holding another CSRT is out of the question. I think transfer is the only way to resolve the situation, but I don't know how we'll make that happen. Switzerland has shown willingness to accept some detainee transfers so that could be a potential solution.
Check out the SCOTUSblog article for this filing here.
This filing by several prisoners being held at Gitmo challenges the new detention authority claimed by the Obama administration. It argues that the new detention authority claims to derive its power from the Authorization for Use of Military Force (AUMF), but that the AUMF says nothing about detention power thus the Executive is implying detention power from the AUMF. Petitioners say that the Hamdi and Hamdan rulings state that the AUMF is silent on detention authority, and that federal courts are very hostile to any argument that claims an implied delegation of authority from Congress.
My favorite argument in this brief is that Congress has passed legislation in which it expressly lays out criminal process authority. The brief cites 18 U.S.C section 2339 which seeks to punish those that "materially support" terrorist activity, and it also cites to the PATRIOT Act. Petitioners point out that both pieces of legislation include an explanation of the detention power that attaches to the statute. The argument here is why would Congress define detention authority in some terrorism-related legislation, but not all of it. If Congress can define a statute's detention process then it will do so and any attempt to imply detention authority is done only through what the brief terms, "executive fiat."
The filing's second main argument is that the law of war is violated when those that are merely affiliated with Al Qaeda are detained under the power of the law of war. Petitioners say that in order to detain an "unlawful combatant" (which is the term used to describe suspected terrorists) under the law of war the detaining party must be able to show that the detainee committed a specific act which would allow such authority. Since that is the standard recognized under international law the U.S. cannot detain a person based on affiliation with a terrorist group.
The ultimate request made by the filing is that the court not decide each petitioner's case under the AUMF authority urged by the government, but rather decide each case under the traditional law of war.
Check out the SCOTUSblog article on this filing.
Parhat v. Gates
In another filing one of the Uighurs (see Kiyemba) is asking for a finding of contempt against Secretary of Defense Gates for failure to comply with a previous order issued by the D.C. Circuit Court telling Gates to either release Parhat, transfer him, or have another Combatant Status Review Tribunal in his case. Petitioner argues that since Gates has not transfered him, cannot release him into the U.S. (again see Kiyemba), and decided not to hold another CSRT that he is refusing to do what the court ordered him to do and thus should be sanctioned.
The argument here is that SecDef Gates's noncompliance is "unexcused", but I would strongly disagree with that. The brief admits that the U.S. has engaged in diplomatic efforts with 100 different countries to try to transfer Parhat, but no one wants him. If Gates can't transfer him then he could release him, but the recent Kiyemba decision says that a court cannot order the release of anyone at Gitmo into the U.S. Parhat argues that while a court cannot order Gates to do it, Gates can do it of his own volition. While Gates may have to power to do so (and I'm not totally sure it is only his decision to make) he would face severe public outcry and I could foresee more litigation against him for endangering the public by releasing a known terrorist into the country. The other option given to Gates was to hold another CSRT for Parhat, but CSRT's were found inadequate by Boumediene.
Gates is stuck between a rock and a hard place with Parhat, and other Uighurs that are similarly situated, because he can't win. He can't transfer them without the permission of another suitable country, he can't release them into the U.S. without endangering the public, and holding another CSRT is out of the question. I think transfer is the only way to resolve the situation, but I don't know how we'll make that happen. Switzerland has shown willingness to accept some detainee transfers so that could be a potential solution.
Check out the SCOTUSblog article for this filing here.
Thursday, March 19, 2009
Military Operations in Pakistan May Expand
Reuters reported yesterday that the U.S. government wants to expand the "covert war" in Pakistan out of the tribal areas and into Baluchistan which is a part of Pakistan that is under control of the Pakistani government. If you'll remember there are tribal regions near the border with Afghanistan that are not under control of the Pakistani government and that is where the U.S. believes that Al Qaeda leaders have been hiding. The U.S. just recently admitted that in addition to Predator drone attacks on the tribal areas in Pakistan, special operations forces have also been operating in the region. This was a significant development because having permanent military personnel on the ground in Pakistan is more intrusive than intermittent drone attacks. Expanding military operations into areas under control of the Pakistani government is a more direct attack on Pakistan's sovereignty and will bring loud protests from the government. While creating tension between the U.S. and another Muslim country is not ideal in our attempt to win hearts and minds I think that Pakistan is not really an ally in this fight, and I believe that aggressive action to find Al Qaeda and Taliban leadership is necessary.
Wednesday, March 18, 2009
Man Charged for Purchasing Military Equipment for Iran
You can rest easy. After a short break from my blog I am back so the three people that read this from time to time will have something new to look at.
DoJ issued a press release today detailing charges against an Iranian man that purchased military equipment from American companies for distribution back to Iran. U.S. authorities believe that Ali Khoshnevisrad purchased both helicopter engines and aerial panorama cameras from the U.S. and then illegally exported them to Iran, which is forbidden by U.S. law. He accomplished this in two ways. He purchased the helicopter engines in the U.S. then shipped them to Malaysia where they were then forwarded on to Iran. In the case of the cameras, he purchased them here and then had a Dutch company say that the cameras were to be shipped to the Netherlands. Once they were shipped there the Dutch company forwarded them on to Iran.
Evidence shows that the accused was working for the Iran Aircraft Manufacturing Industrial Company ("HESA"). The press release says that this company is involved in providing materials for Iran's ballistic missile and nuclear program.
I draw attention to this case because I've given a lot of attention to the detainee issues on this blog, but not other national security related issues. I think that cases like this are often overlooked as threats to our national security. In this case you have a man dealing with legitimate businesses to procure advanced products that can have military use. After September 11th we think of terrorism (i.e. people with guns and bombs killing unsuspecting civilians) as the real threat, and while it is true that run of the mill terrorists are a major threat, other more low key activities can be just as much a threat. Equipping unfriendly countries such as Iran with U.S. miliitary technology is serious especially given some of those countries' connection to terrorist groups
DoJ issued a press release today detailing charges against an Iranian man that purchased military equipment from American companies for distribution back to Iran. U.S. authorities believe that Ali Khoshnevisrad purchased both helicopter engines and aerial panorama cameras from the U.S. and then illegally exported them to Iran, which is forbidden by U.S. law. He accomplished this in two ways. He purchased the helicopter engines in the U.S. then shipped them to Malaysia where they were then forwarded on to Iran. In the case of the cameras, he purchased them here and then had a Dutch company say that the cameras were to be shipped to the Netherlands. Once they were shipped there the Dutch company forwarded them on to Iran.
Evidence shows that the accused was working for the Iran Aircraft Manufacturing Industrial Company ("HESA"). The press release says that this company is involved in providing materials for Iran's ballistic missile and nuclear program.
I draw attention to this case because I've given a lot of attention to the detainee issues on this blog, but not other national security related issues. I think that cases like this are often overlooked as threats to our national security. In this case you have a man dealing with legitimate businesses to procure advanced products that can have military use. After September 11th we think of terrorism (i.e. people with guns and bombs killing unsuspecting civilians) as the real threat, and while it is true that run of the mill terrorists are a major threat, other more low key activities can be just as much a threat. Equipping unfriendly countries such as Iran with U.S. miliitary technology is serious especially given some of those countries' connection to terrorist groups
Saturday, March 14, 2009
New Scope for Government's Detention Authority
Yesterday, the Department of Justice filed a memorandum with Judge Bates (D.C. District) re-defining its detention authority. If you'll remember, about a month ago both Judge Bates and Judge Walton of the D.C. District ordered the government to define its detention authority so that it could be used in processing the pending Gitmo habeas petitions.
The memo is careful to not limit the government's power to detain terrorists and says that further development of the "contours of the... bases of detention" will be necessary. The new detention standard is based on the international laws of war instead of the President's power as Commander in Chief as it was under President Bush. The memo says that the law of war and the Authorization for the Use of Military Force encompass al-Qaeda, the Taliban, and all other analogous groups (terrorist organizations), and thus allows the U.S. to detain members of these groups pursuant to the law of war. It goes on to say that the authority extends beyond the battlefields of Afghanistan and reaches those who provide "substantial support" to any of the above named groups. The word "substantial" is also a significant addition to the new definition of detention authority because the old definition under President Bush did not require substantial activity related to terrorism it only required any activity no matter what it was.
I think that those are the most crucial points to take from the new detention definition. For a more in depth discussion check out SCOTUSblog's analysis and also take a look at this DoJ press release.
The memo is careful to not limit the government's power to detain terrorists and says that further development of the "contours of the... bases of detention" will be necessary. The new detention standard is based on the international laws of war instead of the President's power as Commander in Chief as it was under President Bush. The memo says that the law of war and the Authorization for the Use of Military Force encompass al-Qaeda, the Taliban, and all other analogous groups (terrorist organizations), and thus allows the U.S. to detain members of these groups pursuant to the law of war. It goes on to say that the authority extends beyond the battlefields of Afghanistan and reaches those who provide "substantial support" to any of the above named groups. The word "substantial" is also a significant addition to the new definition of detention authority because the old definition under President Bush did not require substantial activity related to terrorism it only required any activity no matter what it was.
I think that those are the most crucial points to take from the new detention definition. For a more in depth discussion check out SCOTUSblog's analysis and also take a look at this DoJ press release.
Thursday, March 12, 2009
Bomb Plot in Amsterdam
A CNN post says that authorities broke up a bomb plot in Amsterdam. The plot was allegedly aimed at heavily trafficked public areas. The article reports that one of the 7 cell members apprehended has connections to a bombing in Madrid. It is not clear from the article whether that bombing is the train bombings in Madrid or something else.
If the connection between this plot and the train bombings is true then everyone has reason to be concerned. This is clear evidence that terrorist cells are still targeting public areas in large Western cities. I believe it is especially important because I think we have lost focus on the fact that terrorists are still aiming for us, and that the threat is real and affects us right now.
If the connection between this plot and the train bombings is true then everyone has reason to be concerned. This is clear evidence that terrorist cells are still targeting public areas in large Western cities. I believe it is especially important because I think we have lost focus on the fact that terrorists are still aiming for us, and that the threat is real and affects us right now.
Wednesday, March 11, 2009
Other Approaches to Interrogation
I'm on spring break so I'm gonna keep this one short. Check out this New York Times editorial written by two former military interrogators who say that they don't believe that harsh interrogation techniques are the most effective. It's a very thought provoking statement especially coming from a couple of guys that actually do this stuff.
Tuesday, March 10, 2009
DoJ Asks for a Stay in Some Habeas Cases
The Department of Justice has asked for a stay in habeas proceedings of any Gitmo detainees that have already been cleared for release. Some detainees at Gitmo have been granted release from custody, but remain in prison because the U.S. has been unable to find a country that will accept them. A few weeks ago, the D.C. Circuit reached a decision in the Kiyemba case, which denied detainees the right to be released in the U.S. just because they were granted release based on a habeas petition. Since Kiyemba denies detainees the right to be released in the U.S., and given the fact that the government will not voluntarily release them into the U.S., the government will have to work through diplomatic channels to find other countries where we can send them.
The DoJ's recent filing asks the D.C. District Court to stay the habeas proceedings of some detainees that have been approved for release while the government seeks diplomatic solutions relating to their release. The reasoning behind the request is that if the government can find suitable countries to send the detainees to then the prisoners' habeas petitions will be rendered moot. The DoJ argues that it will save the government and the court time because these habeas cases should not go forward if release through another channel is being sought. The DoJ says that resolving the cases of these detainees is of the highest priority because of Obama's Presidential Order number 13,492.
I think that the court should grant this order because it makes perfectly logical sense. If these detainees have already been granted release then the only thing keeping them in custody at this point is the inability to find a suitable place to relocate them. I don't think the ease of relocating them will be increased by moving forward with their habeas petitions. Their ultimate goal is release from U.S. custody and that is what the government is already seeking. The bad news for these prisoners will come if the government is unable to find a country in which to relocate them. Since the government is unwilling to allow detainees to be released in the U.S., if we cannot find another country that will accept them, the detainees will be back at square one staring down the barrel of indefinite detention with no foreseeable legal remedy.
The DoJ's recent filing asks the D.C. District Court to stay the habeas proceedings of some detainees that have been approved for release while the government seeks diplomatic solutions relating to their release. The reasoning behind the request is that if the government can find suitable countries to send the detainees to then the prisoners' habeas petitions will be rendered moot. The DoJ argues that it will save the government and the court time because these habeas cases should not go forward if release through another channel is being sought. The DoJ says that resolving the cases of these detainees is of the highest priority because of Obama's Presidential Order number 13,492.
I think that the court should grant this order because it makes perfectly logical sense. If these detainees have already been granted release then the only thing keeping them in custody at this point is the inability to find a suitable place to relocate them. I don't think the ease of relocating them will be increased by moving forward with their habeas petitions. Their ultimate goal is release from U.S. custody and that is what the government is already seeking. The bad news for these prisoners will come if the government is unable to find a country in which to relocate them. Since the government is unwilling to allow detainees to be released in the U.S., if we cannot find another country that will accept them, the detainees will be back at square one staring down the barrel of indefinite detention with no foreseeable legal remedy.
Saturday, March 7, 2009
Switzerland to Help in Detainee Relocation
Reuters reports that Switzerland is in the process of reaching a deal on relocating detainees released from Gitmo. Switzerland's Foreign Minister has been in talks with new Secretary of State Hillary Clinton, and it appears the two reached a tentative agreement on Switzerland accepting detainees. The deal seems to depends on the U.S. giving the Swiss information on the prisoners so that the Swiss can assess security concerns regarding each detainee. Its still not clear how many detainees they will take, but I'm sure it depends on how dangerous each one is.
I feel like we must be making some kind of deal with the Swiss government on this one and the most obvious deal would involve the U.S. laying off of Swiss banks a little bit on the search for terrorist funds. Swiss banks have been a focal point of the effort to disrupt terrorist financial networks, and if there is one thing the Swiss don't like it is people messing with their banking system. I've just got to think that we will need to make concessions to other countries to accept these potential terrorists, and this is the most obvious one I can think of when it comes to Switzerland.
I still have a concern about the U.S. being left with potentially dangerous terrorists that other countries won't accept, and that we can't prosecute for some reason. What will we do with them? If that ends up happening it will be interesting to see what kinds of solutions we come up with.
I feel like we must be making some kind of deal with the Swiss government on this one and the most obvious deal would involve the U.S. laying off of Swiss banks a little bit on the search for terrorist funds. Swiss banks have been a focal point of the effort to disrupt terrorist financial networks, and if there is one thing the Swiss don't like it is people messing with their banking system. I've just got to think that we will need to make concessions to other countries to accept these potential terrorists, and this is the most obvious one I can think of when it comes to Switzerland.
I still have a concern about the U.S. being left with potentially dangerous terrorists that other countries won't accept, and that we can't prosecute for some reason. What will we do with them? If that ends up happening it will be interesting to see what kinds of solutions we come up with.
Friday, March 6, 2009
SCOTUS Dismisses Al-Marri, Vacates Fourth Circuit Ruling
Reuters, the ACLU, and SCOTUSblog are all reporting that the Supreme Court has vacated the Fourth Circuit's ruling in Al-Marri, and remanded the case back to the circuit court to dismiss it as moot. This is the outcome that most expected. Some hoped, as did I, that the Supreme Court would move on with the case, but I think the mootness argument was too strong especially given the similarity between this case and Padilla. The ACLU, which was part of Al-Marri's team of legal counsel, says that this isn't the ideal outcome, but that vacating the Fourth Circuit ruling is an important victory. While I agree that vacating the previous ruling is important I don't think that the Supreme Court's dismissal is a huge blow to those wishing to strike down the power complained of in Al-Marri. The executive branch still has the power to hold prisoners like they held Al-Marri. Whether the Obama administration decides to exercise that power again remains to be seen, but remember that in their filings to the Supreme Court the explicitly mentioned the posibility of redesignating Al-Marri and sending him back to military detention. Statements like that show that they are not going to rule out using this power again.
D.C. Circuit Decision in Al Odah Case
SCOTUSblog reports that the D.C. Circuit has published its opinion in the case of Al Odah v. US. The decision is based on an interlocutory appeal made by the government to a district court order forcing the government to turn over unredacted classified information to attorneys representing detainees in habeas proceedings. The appeal has been on hold since 2005 while other cases, most notably Hamdan and Boumediene, were decided. The D.C. Circuit decided to move ahead with deciding this appeal once the D.C. District court started case management of all pending habeas cases. The D.C. Circuit's opinion vactes the district's earlier ruling, and remands it to the district court to make findings on materiality, as well as whether the government may be able to produce a sufficient alternative to review of classified information.
The decision says that a detainee's counsel is entitled to review all classified information that is helpful to his defense, and in the case of habeas proceedings all information that is necessary to facilitate a habeas review. Such information is what the court considers "material", and it is up to the court review the information in camera to determine whether classified information meets that standard. Here's a list of things the court found to be material:
This decision gives some more definition as to how review of all the pending habeas cases will go. Furthermore, I think it is a step in the direction of defining what kinds of procedures the U.S. will use in the future to handle national security cases.
The decision says that a detainee's counsel is entitled to review all classified information that is helpful to his defense, and in the case of habeas proceedings all information that is necessary to facilitate a habeas review. Such information is what the court considers "material", and it is up to the court review the information in camera to determine whether classified information meets that standard. Here's a list of things the court found to be material:
- Exculpatory evidence
- Inculpatory evidence relating to sources such as: source bias, coercion of the source, or inconsistent information from the source.
- Information containing names of witnesses that may have useful information.
This decision gives some more definition as to how review of all the pending habeas cases will go. Furthermore, I think it is a step in the direction of defining what kinds of procedures the U.S. will use in the future to handle national security cases.
Wednesday, March 4, 2009
Government's Reply Brief in A-Marri
SCOTUSblog is reporting that the government has filed a reply brief in response to the one filed by Al-Marri's attorneys yesterday. The government makes many of the same arguments it made in its original motion to dismiss, but I will go over a few points I found interesting in this reply brief.
The government argues that Al-Marri is asking for what is the equivalent of a declaratory judgment, which is not relief that he previously asked for. It also says that there is no precedent suggesting that a habeas case is not mooted when the custodial authority voluntarily lets the prisoner go.
The reply brief also argues that there are no legitimate grounds upon which to say that the government's release of Al-Marri is an attempt to avoid review of the detention policy by the Court. The government says that Al-Marri is being transferred to the civilian court system after much consideration by civilian authorities and after the correct civilian processes have been performed. It also cites authority saying that President Obama's actions are entitled to a "presumption of regularity." This presumption is backed up by the fact that Jose Padilla was released to civilian authorities under similar circumstances and has not been redesignated and transferred by to military detention.
Something else I thought was interesting, and inconsistent, was that at the end of the brief the government couched Al-Marri's brief as asking for an advisory opinion. If you'll remember, a couple paragraphs ago I said that the government said that Al-Marri's brief was essentially asking for a declaratory judgment. The inconsistency is that advisory opinions and declaratory judgments are two different things. The Supreme Court can issue declaratory judgments, but it cannot issue advisory opinions. I feel that the government generalizing Al-Marri's brief as two distinct and contradictory things is strange.
In conclusion I want to draw your attention to two elements of the reply brief. First, is the repeated use of the word "hypothetical" which I still believe is an attempt by the government to draw a clear line between this case and Padilla. Second, the government again mentions that redesignating Al-Marri is not out of the question, but should not be considered and exception to the mootness doctrine in this case because such redesignation would be under markedly different circumstances. Again the government is expressing its willingness to potentially use this power to hold prisoners under conditions similar to Al-Marri's. I think this language is a clear message from the administration that it is not ready to give up this detention power because if it was willing to it would make a clear statement saying so, or it would allow the Court to make a decision in this case.
The government argues that Al-Marri is asking for what is the equivalent of a declaratory judgment, which is not relief that he previously asked for. It also says that there is no precedent suggesting that a habeas case is not mooted when the custodial authority voluntarily lets the prisoner go.
The reply brief also argues that there are no legitimate grounds upon which to say that the government's release of Al-Marri is an attempt to avoid review of the detention policy by the Court. The government says that Al-Marri is being transferred to the civilian court system after much consideration by civilian authorities and after the correct civilian processes have been performed. It also cites authority saying that President Obama's actions are entitled to a "presumption of regularity." This presumption is backed up by the fact that Jose Padilla was released to civilian authorities under similar circumstances and has not been redesignated and transferred by to military detention.
Something else I thought was interesting, and inconsistent, was that at the end of the brief the government couched Al-Marri's brief as asking for an advisory opinion. If you'll remember, a couple paragraphs ago I said that the government said that Al-Marri's brief was essentially asking for a declaratory judgment. The inconsistency is that advisory opinions and declaratory judgments are two different things. The Supreme Court can issue declaratory judgments, but it cannot issue advisory opinions. I feel that the government generalizing Al-Marri's brief as two distinct and contradictory things is strange.
In conclusion I want to draw your attention to two elements of the reply brief. First, is the repeated use of the word "hypothetical" which I still believe is an attempt by the government to draw a clear line between this case and Padilla. Second, the government again mentions that redesignating Al-Marri is not out of the question, but should not be considered and exception to the mootness doctrine in this case because such redesignation would be under markedly different circumstances. Again the government is expressing its willingness to potentially use this power to hold prisoners under conditions similar to Al-Marri's. I think this language is a clear message from the administration that it is not ready to give up this detention power because if it was willing to it would make a clear statement saying so, or it would allow the Court to make a decision in this case.
ACLU Asks Court Not to Moot Al-Marri Case
Attorneys for Ali Saleh Kahlah Al-Marri filed a brief with the Supreme Court yesterday asking it to deny the government's motion to dismiss the case. Al-Marri's brief argues that the case is not moot, but asks that if the Court does decide it is moot it should vacate the 4th Circuit decision in the case.
The brief's main argument is that the case is not moot because the government has not made any clear assurances that it will not redesignate Al-Marri an "enemy combatant" in the future and return him to military custody. It argues that mootness does not exist when a defendant takes voluntary action to end the practice complained of, and it is not "absolutely clear" that the action will be repeated in the future. The brief points out that the government's own motion to dismiss says that it can contemplate future circumstances that would lead it to redesignate Al-Marri and return him to military custody. Al-Marri's attorneys argue that such an admission shows that it is not "absolutely clear" that the government will not engage in the controversial conduct in the future.
Another argument it makes is that prudence concerns require the Court to hear the case. It argues that the very idea of habeas corpus is called into question if the government can continue to avoid review of its policies by transferring these prisoners. I think the brief draws a nice distinction between this case and the Padilla case. If you'll remember, Padilla was an earlier case which the Court denied cert to based on mootness grounds. Al-Marri's attorneys argue that their case is different because the Court has already granted cert, and it is scheduled for argument in two months. It argues that a great deal of time has been spent on preparing this case for Supreme Court review, and a great deal of time has already been spent in the lower courts to get the case to this point, thus the Court should not get rid of the case so close to its conclusion.
In the alternative, the brief asks for relief in the form of vacating the 4th Circuit's judgment in the case. I think this is what the Court will end up doing in the case 1) because it needs to get rid of judicial precedent that upholds the constitutionally questionable practice; and 2) because both sides can agree that it would be an acceptable resolution (although it isn't the remedy either side prefers). I think that vacating the 4th Circuit judgment is a hollow victory for Al-Marri. On the plus side it would be nice not to have any judicial precedent that upholds the authority of the U.S. government to detain those legally in the U.S. in military custody. However, vacating the 4th Circuit decision in no way takes away the ability of the government to engage in this practice. The government already claims the power under the AUMF to be able to use military detention to detain those it suspects of terrorism even if those people are legally within the U.S. when they are captured. The only thing that can stop the government from exercising this power again is a Supreme Court decision.
I still think the government will win this argument. It seems to me that there are sufficient similarities between Al-Marri and Padilla to allow the Court to moot this case. I also think that because Al-Marri was the last detainee held under this authority that the Court will see no real urgency to make a decision. However, I believe that the Al-Marri case should be heard by the Court if at all possible because the constitutionality of the government's power in these instances needs to be assessed.
The brief's main argument is that the case is not moot because the government has not made any clear assurances that it will not redesignate Al-Marri an "enemy combatant" in the future and return him to military custody. It argues that mootness does not exist when a defendant takes voluntary action to end the practice complained of, and it is not "absolutely clear" that the action will be repeated in the future. The brief points out that the government's own motion to dismiss says that it can contemplate future circumstances that would lead it to redesignate Al-Marri and return him to military custody. Al-Marri's attorneys argue that such an admission shows that it is not "absolutely clear" that the government will not engage in the controversial conduct in the future.
Another argument it makes is that prudence concerns require the Court to hear the case. It argues that the very idea of habeas corpus is called into question if the government can continue to avoid review of its policies by transferring these prisoners. I think the brief draws a nice distinction between this case and the Padilla case. If you'll remember, Padilla was an earlier case which the Court denied cert to based on mootness grounds. Al-Marri's attorneys argue that their case is different because the Court has already granted cert, and it is scheduled for argument in two months. It argues that a great deal of time has been spent on preparing this case for Supreme Court review, and a great deal of time has already been spent in the lower courts to get the case to this point, thus the Court should not get rid of the case so close to its conclusion.
In the alternative, the brief asks for relief in the form of vacating the 4th Circuit's judgment in the case. I think this is what the Court will end up doing in the case 1) because it needs to get rid of judicial precedent that upholds the constitutionally questionable practice; and 2) because both sides can agree that it would be an acceptable resolution (although it isn't the remedy either side prefers). I think that vacating the 4th Circuit judgment is a hollow victory for Al-Marri. On the plus side it would be nice not to have any judicial precedent that upholds the authority of the U.S. government to detain those legally in the U.S. in military custody. However, vacating the 4th Circuit decision in no way takes away the ability of the government to engage in this practice. The government already claims the power under the AUMF to be able to use military detention to detain those it suspects of terrorism even if those people are legally within the U.S. when they are captured. The only thing that can stop the government from exercising this power again is a Supreme Court decision.
I still think the government will win this argument. It seems to me that there are sufficient similarities between Al-Marri and Padilla to allow the Court to moot this case. I also think that because Al-Marri was the last detainee held under this authority that the Court will see no real urgency to make a decision. However, I believe that the Al-Marri case should be heard by the Court if at all possible because the constitutionality of the government's power in these instances needs to be assessed.
Iran Wants to Try Israeli Officials
I'm not sure I can imagine a more hostile environment for an Israeli official than an Iranian court, but that is exactly where Iranian leaders want to bring some Israeli officials. Iran has requested help from Interpol to bring in 15 Israelis including: the Prime Minister, Defense Minister, Mossad Chief, Chief of the Israeli Defense Forces, and the Attorney General. Iran wants these officials brought in for war crimes it says were committed in Gaza. Since it is highly unlikely that Interpol will assist in this mission, Iran is also planning to try the officials in absentia.
I realize that such a trial will never happen short of Iran kidnapping those they want and dragging them into its court system, but just thinking about an Israeli being tried in an Iranian court is terrifying. I'm sure the word "trial" would be used very loosely to describe whatever process the court went through to convict the Israeli, and I'm sure that whatever punishment was meted out would be something that fell far short of the 8th Amendment.
Another interesting topic discussed in this article is the International Criminal Court considering its power to investigate Israeli actions in Gaza. Apparently the central issue is whether Palestine is a "state" recognized by the ICC, and the answer seems to be yes since Israel withdrew from Palestinian lands in 2005 and gave them sovereignty. However, no matter what the ICC decides on that issue, Israel is unlikely to subject any of its citizens to the ICC's jurisdiction.
I realize that such a trial will never happen short of Iran kidnapping those they want and dragging them into its court system, but just thinking about an Israeli being tried in an Iranian court is terrifying. I'm sure the word "trial" would be used very loosely to describe whatever process the court went through to convict the Israeli, and I'm sure that whatever punishment was meted out would be something that fell far short of the 8th Amendment.
Another interesting topic discussed in this article is the International Criminal Court considering its power to investigate Israeli actions in Gaza. Apparently the central issue is whether Palestine is a "state" recognized by the ICC, and the answer seems to be yes since Israel withdrew from Palestinian lands in 2005 and gave them sovereignty. However, no matter what the ICC decides on that issue, Israel is unlikely to subject any of its citizens to the ICC's jurisdiction.
Monday, March 2, 2009
Some Interesting Headlines
Blackwater- CNN is reporting that Blackwater's (now known as Xe) founder, Erik Prince, resigned from the company to "tak[e] on new challenges." Also, Gary Jackson the long time president of the company is also leaving. This move by Prince comes close on the heels of Blackwater losing its contract with the State Department in May. The CNN article says that that contract made up one third to one half of Blackwater's revenue. It also comes soon after five Blackwater employees plead not guilty to federal manslaughter charges stemming from the infamous Nisoor Square shooting in Baghdad. That case will be very interesting as it is the first high-profile case to be charged under the Military Extraterritorial Jurisdiction Act. I'll keep an eye on that one and report on it as things develop. In summary, Blackwater has had a rough go of it lately and I can't say I'm surprised at this announcement. It will be interesting to see what happens with Blackwater/Xe as it gains new leadership, and it will be equally as interesting to see where Prince heads after this.
Waterboarding- New Attorney General Eric Holder came out today and said that the Justice Department will not condone waterboarding as an interrogation technique. This comes as no surprise and is a little redundant given the fact that President Obama signed an order on January 22nd limiting interrogation techniques to those acceptable under the rules in the Army Field Manual (the Army Field Manual explicitly forbids waterboarding). While it may be redundant it is probably good to be redundant in this situation. Holder explicitly said that waterboarding is a form of torture, something that the Bush administration would never say. He also said that many interrogation techniques will receive review over the next few months, but that waterboarding would not because they would never consider using it. I like this move because it shows that the Obama administration is taking a hard line on the issue, and I think it is especially important now given the reports over the last week or two from former Gitmo detainees that said they were tortured.
Interrogation tapes- The government disclosed today that the CIA destroyed 92 tapes that documented interrogations conducted by the Agency. Some of the footage on the tapes showed prisoners being waterboarded. The disclosure was made in a letter from the U.S. Attorney's office to Judge Alvin Hellerstein (Southern District of New York) and said that the 92 tapes were destroyed, but that federal authorities planned to furnish as much material as possible that describes what was on the tapes. The letter was made in response to a motion by the ACLU to hold the CIA in contempt for destroying documentation of interrogation techniques. The contempt motion is in relation to two requests by the ACLU made under the Freedom of Information Act for records relating to interrogation techniques. The contempt motion asks that if the court finds the CIA in contempt then the court should order the CIA to make numerous written responses that will detail the interrogation techniques used in the videos, identify those in charge of destroying the videos, and various other forms of relief. ACLU attorneys say that the letter admitting the destruction of the videos is proof of contempt, and that the CIA should be ordered to do the things requested in the motion.
Waterboarding- New Attorney General Eric Holder came out today and said that the Justice Department will not condone waterboarding as an interrogation technique. This comes as no surprise and is a little redundant given the fact that President Obama signed an order on January 22nd limiting interrogation techniques to those acceptable under the rules in the Army Field Manual (the Army Field Manual explicitly forbids waterboarding). While it may be redundant it is probably good to be redundant in this situation. Holder explicitly said that waterboarding is a form of torture, something that the Bush administration would never say. He also said that many interrogation techniques will receive review over the next few months, but that waterboarding would not because they would never consider using it. I like this move because it shows that the Obama administration is taking a hard line on the issue, and I think it is especially important now given the reports over the last week or two from former Gitmo detainees that said they were tortured.
Interrogation tapes- The government disclosed today that the CIA destroyed 92 tapes that documented interrogations conducted by the Agency. Some of the footage on the tapes showed prisoners being waterboarded. The disclosure was made in a letter from the U.S. Attorney's office to Judge Alvin Hellerstein (Southern District of New York) and said that the 92 tapes were destroyed, but that federal authorities planned to furnish as much material as possible that describes what was on the tapes. The letter was made in response to a motion by the ACLU to hold the CIA in contempt for destroying documentation of interrogation techniques. The contempt motion is in relation to two requests by the ACLU made under the Freedom of Information Act for records relating to interrogation techniques. The contempt motion asks that if the court finds the CIA in contempt then the court should order the CIA to make numerous written responses that will detail the interrogation techniques used in the videos, identify those in charge of destroying the videos, and various other forms of relief. ACLU attorneys say that the letter admitting the destruction of the videos is proof of contempt, and that the CIA should be ordered to do the things requested in the motion.
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