Kiyemba Kraziness Kont'd

I just got through the first week of the Hell on Earth that is studying for the Virginia Bar Exam. Due to the fact that it has basically taken over my life blogging will be somewhat light this summer, but don't worry, I will not stop my quest to keep the 5 people that read this blog informed of developments in the arena of national security law. Today's post is concerned with yesterday's filing of the government's brief in opposition to the Kiyemba cert petition. Remember this case is the one about the 17 Uighurs being held at Gitmo who have won their habeas cases, but continue to be held nonetheless because they can't be sent back to China and no other country is willing to take them. The crux of the government's argument is basically this: a federal court cannot force the Executive branch to release the Kiyemba petitioners into the U.S. outside of federal immigration law. The government cites the fact that since the petitioners have not been brought into U.S. sovereign territory they do not have the right to be released into the U.S. It also argues 1) that it doesn't matter that the Uighurs were brought into U.S. custody involuntarily; and 2) that habeas corpus merely grants the right to simple release not a right to release into the U.S.

The government says that the Uighurs' situation is not distinguishable from several other immigration cases holding that aliens in U.S. custody outside of U.S. sovereign territory did not have the right to challenge their detention and gain entry into the U.S. I disagree that the Uighur case can't be distinguished. I think the fact that the Uighurs were captured and brought into U.S. custody at Gitmo because they were pegged as enemy combatants (mistakenly so) is a lot different than previous cases. The brief cites a case involving the apprehension of Hatians at sea who were trying to get to the U.S. who were not allowed entry into the U.S. and instead held at Gitmo until they could be repatriated. The difference here is that the Uighurs weren't attempting to gain entry into the U.S., they were wrongly apprehended and dragged to Gitmo where they have been wrongly held for years. Furthermore, that case wasn't even a habeas case. Those Haitians were trying to enter the U.S. illegally and were caught and held. They never got habeas relief like the Uighurs here have.

Also, I think the argument that habeas simply grants release for the Uighurs and not release into the U.S. is ridiculous in this situation. First of all, without an ability to obtain release the right to habeas corpus means nothing. The goverrnment argues that the Uighurs are free to leave anytime they want if they can find a country that will take them. It says that the Uighurs don't want to go back to their native China because of the treatment they will recieve there so they are basically choosing not to leave Gitmo. This argument is completely absurd and a little bit infuriating. Even if the Uighurs wanted to go back to China I'm not sure the U.S. can release them to China because of the certainty they will be treated inhumanely there. Furthermore, the reason they can't find a country that will take them now is because their incarceration at Gitmo has permanently tagged these guys as dangerous terrorists. Yes, the Uighurs have gone to terrorist training camps, but it is the illegal actions of the U.S. government that imprisoned them and caused them to be left them without a home anywhere in the world.

Finally, I don't completely buy the argument that Gitmo is not part of U.S. sovereign territory. The Court in Boumediene did find that Cuba maintains ultimate, de jure sovereignty over Guantanamo Bay, but it also found that the base at Gitmo is under de facto sovereignty of the U.S. and that the U.S. maintains ultimate jurisdiction there. That is a major factor that weighed in giving Gitmo detainees the right to habeas proceedings. So what does that mean? I don't know. I guess it means we have sovereignty and we don't at the same time. I guess it means that we have sovereignty enough to allow for habeas rights, but not to the point that we have to provide them with the relief habeas requires.

The ideological side of me is pretty outraged at the argument to keep the Uighurs locked up. The notion that they have received the relief they are entitled to is totally absurd. They are still in prison. The right to a court proceeding is not what habeas is about. It's about a right to be released and the people that put you in jail have the obligation to let you out if it is found you are being wrongfully incarcerated. The pragmatic side of me knows that we can't let the Uighurs be released into the United States. There is no doubt in my mind that these guys harbor some serious ill will towards this country. They are in fact trained terrorists and letting trained terrorists into a country that they despise is a phenominally bad idea. We're essentially stuck between a rock and a hard place here.

Will the Court hear this case? I don't know. In one sense if I were the Court I wouldn't want to get withing 1,000 miles of this thing, but in another sense the legal question the case presents is so serious and unsettled that it would look like the Court is trying to hide from it if they deny the cert petition. In the end, if they hear the case, I think the only choice the Court has is to rule against the Uighurs. If the Court ruled for them and released terrorists into the U.S. there would be a public outcry of biblical proportions and it would set precedent for others held at Gitmo that win their habeas cases to be released here which would only increase public safety concerns.

First Rule In Terrorism - Location, Location, Location

Somalia is starting to look like prime real estate to set up a base for terrorist operations. This NYT article reports that the mostly ineffectual Somali government launched a counteroffensive against rebel Islamist groups in the capital of Mogadishu. The major rebel group in Somalia right now is al Shabab which is affiliated with al Qaeda, and they now seem to be joined by another group called Hizbul Islam. The counteroffensive was in response to the beating that the rebels had been issuing the government troops up to that point. The effectiveness of the attack is up in the air, and it is questionable whether the government won back any of its territory.

I think that Somalia could be the next big name in terrorism. Things are getting pretty uncomfortable for al Qaeda in Afghanistan and Pakistan so it would make sense for them to start moving their operations out of the area. Somalia is the perfect place to relocate. The central government is extremely weak and government troops seem to be at a loss at figuring out how to eradicate the problem. You couple that with the fact that the U.S. will have little resolve to enter into another ground offensive in a new country after the challenges we've faced in Iraq, Afghanistan, and Pakistan, as well as the bad memories of Somalia left from what happened in 1993 (think Black Hawk Down), and you have an ideal situation for al Qaeda to set up shop in Somalia.

Hamlily v. Obama: Judge Bates Departs From Judge Walton's Decision On Detention Authority - Or Does He?

Voodoo comes to you today from beautiful Kiawah Island, SC. Yeah that's right I'm on vacation, but my commitment to the blog is not diminished. Today's topic: the new D.C. District decision in Hamlily v. Obama. Less than a month after Judge Walton's opinion in Gherebi v. Obama (I have an old post about that decision) interpreted Obama's new detention standard, Judge Bates puts forth this decision in Hamlily v. Obama that interprets the standard in a more restrictive way. The major difference in the two opinions is that Gherebi adopts the new "substantial support" standard where as Judge Bates refused to recognize detention power over those that only substantially support al Qaeda or the Taliban in Hamlily, and instead said that the military can only detain active members of al Qaeda, the Taliban, or co-belligerents/associated forces. Membership in these groups is determined by whether the person "functions or participates within or under the command structure of the organization." Specific acts that tend to show membership include: an oath of loyalty, training at an al Qaeda camp, staying at an al Qaeda guest house, or taking up a position with an enemy force in the field. While the court posits these examples it is careful to say that the list is not exhaustive and that membership determination needs to be judged on a case-by-case basis. Futhermore, the opinion supports Judge Walton's definition of the fight against al Qaeda and the Taliban as a non-international armed conflict. By defining the conflict in this way the court is able to get around petitioners' argument that they cannot be considered part of an armed force,,therefore they are civilians and not subject to military detention.

So we've got two opinions that look facially different in a pretty significant way - one recognizes "substantial support" and one does not. But are they actually different? I'm not so sure. Hamlily says that membership in al Qaeda or the Taliban is determined on a case-by-case basis and the determination in each case is based on the quantity and/or quality of actions by the individual that relate to the organization. By that logic you could have a person who performs functions that are traditionally considered supporting tasks, but evidence could be presented to show that those tasks are of a sufficient quality, or are performed in sufficient quantity, that they rise to the level of making that person a member of a terrorist organization. Judge Bates's opinion actually recognizes this fact on page 19 of his opinion. It seems to me that the argument as to whether "substantial support" is a basis for military detention or not is a non-issue when this kind of functional test is applied on a case-by-case basis.

It's Time To Start Seriously Considering A National Security Court

Yesterday officials in the Obama administration announced that it would use controversial military commissions to conduct trials of some of the detainees held at Guantanamo. This decision has created a furor amongst human rights groups because of the well founded belief that trials by these military commissions will make obtaining convictions against the detainees easier since the commissions are not subject to the stricter rules present in the traditional court system.

I would say that these groups are justifiably upset because Obama said during his campaign that the military commissions were unacceptable because they compromised American values. The new administration has revamped the commissions a little by imposing some more restrictions, but the restrictions still don't match up with those found in traditional courts. On one end of the ideological spectrum the ACLU has taken to calling this move the "Bush Obama Doctrine", while at the other end an attorney was glad that Obama had seen the light and decided to treat terrorists like warriors rather than criminals. I don't agree with either of these statements. I think that the ACLU is up to their normal hyperbolic rhetoric that should be dismissed, but I also don't believe that terrorists should be considered warriors. Terrorists are not warriors, unless they are fighting in a war zone like Iraq or Afghanistan, but nor are they traditional criminals.

We cannot fight the new terrorist threat through traditional means of law enforcement. The means by which we fight terrorism will be more sophisticated than that we use to combat traditional crime and will often rely on classified information. Because of the way in which we are going to have to fight terrorism we are going to need to create some sort of judicial body that has a different set of rules as well as expertise in dealing with national security issues. But hasn't the traditional court system handled national security issues in the past? Yes, of course they have; however, it has only handled sporadic cases in the past and I don't' believe that it is set up to effectively deal with the new emphasis on terrorism and the influx of terrorism cases. The fact is that the nature of terrorism/national security cases, namely the amount and nature of classified material, makes trying such cases in the traditional courts an overwhelming burden that can lead to the release of dangerous terrorists. All you have to do is look at the situation I mentioned in an earlier post about the Obama administration getting ready for a showdown with the courts because the courts have ordered massive amounts of discovery of classified material which would create an incredible burden on the government to produce. That burden ends up distracting national security officials from the job of fighting against national security threats. Don't get me wrong, I don't want to set up a kangaroo court to try suspected terrorists, and I know that some of you may get the impression from what I'm saying. I just think that modern terrorism represents something that transcends our notions of traditional criminal law, but falls short of a war.

A national security court is of course not an original idea of mine by any means. The U.S. already has a court along those lines in the FISA court. Also, a very early post in this blog examined a proposal for a national security court in detail. The bottom line is that we need to create a pragmatic system that offers suspected terrorists rights, but also serves our national security interests.

Beck to the Future (5/15/09): Return of the Beck

THE BECK'S BACK BABY!!! Well actually I'm back. I'm assuming Glenn has been educating the American public on conservative values five days a week since my last post. I've caught some flack for the lack of Beck live-blogging for the past couple weeks. Look, I'm sorry that Beck to the Future has been on hiatus, but I've been busy finishing exams and graduating from law school. What have you been doing for the past two weeks? Yeah, that's what I thought. Get off my case. Now that I've gotten that off my chest it's time to get back to business. I'm blogging from the great state of North Carolina today. God's country. Also my mom is joining me for the show today. Let's give her a warm Beck to the Future welcome. In honor of my guest I will be instituting the "Mom Rage Guage." This tool is being implemented to measure the Glenn's effect on those leaning farther to the left. My mom would describe herself as a moderate democrat, but I will submit that this self-evaluation represents at least mild understatement. The "Mom Rage Guage" will be a simple 1 to 10 scale (1 being grudging agreement, because that's as good as it will get, and 10 being pure, unmitigated hatred). I don't expect to see this scale slip below 9.5. So sit back, relax, and get ready for your daily dose of raw conservatism.

*A caveat for today's show. This is not our normal news-type (I use that descriptor EXTREMELY loosely) show. It is a show based around is 9-12 Project, and Glenn is in a studio with a live audience. These people refer to themselves at "9-12'ers." As a frame of reference I want you to think about Glenn as Jim Jones and the audience as the poor saps who had to drink the Kool Aid.

5:00 - Glenn! Hey buddy! How the hell have you been? No tie today I see. Well played Glenn. Well played. Woah. Glenn started his show today off standing amongst in his audience. He's never had an audience before. What is going on here? I'M FREAKING OUT!! It seems I missed a lot while I've been gone. I hope I can catch up.

5:01- Oh ok. Glenn is just babbling about how the federal government is becoming too powerful. I'm caught completely back up. That took about 52 seconds which is 47 seconds too long.

5:03 - As I said, today's show is about Glenn's 9-12 project which is about Glenn's 9 principles and 12 rules, or 9 axioms and 12 pillars, or is it 9 decrees and 12 canons? I can't keep it straight. Anyways, hey Glenn, you know who else subscribed to 9 principles and 12 whatevers? The Branch Davidians.

5:06 - Glenn just took an audience poll: Question: Who in the audience trusts the U.S. government? No one raises their hands. I'm gonna go out on a limb and say this is not a representative section of the population.

• My mom just yelled the word "Idiot!" at the TV. Mom Rage Guage = 10.1.

5:08 - Glenn literally has a chalkboard which he has written all over. Come on Glenn, couldn't they at least get you a dry erase board. Chalk is so 1950's. I hope that he uses this teaching tool to it's fullest potential.

5:09 - Glenn just told us that the government is coming for us and that we are on the list. Wait. WHAT?! I KNEW IT!! I have to encourage my readers to pack only what is necessary and leave their homes immediately. The government is coming. Glenn has set up a warren of caves deep in the mountains of West Virginia. We should be safe there. That is of course until we launch the revolution. VIVA LA REVOLUCION!!

5:11 - A studio audience guest named Angelo is being questioned by Glenn. This guy bears a striking resemblance to Tony Soprano. He says he used to be a car salesman (read: waste management). I can only assume this guy is tagged as head of WV cave security.

5:12 - Now to Scott who owns a huge gun shop in NY. He says the government is out of control. The last guy you want saying the government is out of control is a guy who has access to a large cache of small arms. Scott is most certainly funneling guns to Glenn's warren of cave in WV.

5:14 - Now Carl. A state legislator who is a self-proclaimed 9-12'er. Carl believes the federal government is tyrannical. Another guest with a solid belief system clearly grounded in reality. See you in the caves my friend.

5:15 - I just want to say that I think Glenn has gotten lazy. He's just asking his audience full of mental patients questions and letting them spew all kinds of nonsense.

• My mom left the room to talk on the phone. Lame. I need to get her back up here because this show is leaning farther right than normal ones. MA! THE MEATLOAF!!!

5:18 - Commercial break. This time will be used to allow Glenn's audience to drink a sugary beverage containing drugs that will make them much more susceptible Glenn's suggestions. When we come back Glenn says he'll educate us on state rights (read: starting another Civil War).

5:21 - Glenn's back and so is my mom. Welcome back to the both of you.

5:22 - New audience member. His name is Kevin and he's an expert on the 10th Amendment. This guy will undoubtedly be the Attorney General of the WV caves.

• My mom just diagnosed Kevin with a thyroid problem. Don't worry Kevin. My mom has no formal medical training, but you do look a little pale and you are making almost no sense.
  

5:25 - Glenn just accidentally referred to the 10th Amendment as the 10th Commandment. I think that gives us a good fix as to where Glenn's opinions are coming from.

5:27 - Kevin just said that courts have taken things into their own hands and don't make decisions based on what the people want. Hate to tell you this Kev, but ummmm... that's kind of what courts are supposed to do.

• I just told my mom that Glenn went to Yale. She is shocked. She is convinced it is a lie and that he only has a GED. She has no evidence to support this belief, but I'm inclined to agree with her. The truth is that Glenn only took a single class at Yale, but I wanted to get my mom riled up. Intentionally provoking here right now is extremely dangerous and puts me at great risk of harm, but I'm willing to do this for my Beck to the Future followers. I love you guys. Mom Rage Guage = 11.3.

5:31 - Glenn's back from commercial. He's kind of gotten away from using the chalkboard. I'd like to see him utilize that more. I peg his audience as visual learners (read: fans of picture books). Maybe a Ven diagram, Glenn? I also want to point out that Glenn was throwing peanut M&M's at one of the news anchors while she was giving her report. Fox News. Slassy outfit.

5:33 - Uh-oh. Glenn is now talking to some dude from Montana that proposed a gun law that completely takes gun control out of federal hands. He says that he plans on fighting the commerce clause by using the 10th Amendment and that they will litigate this law through the courts. I hate to tell you my friend. The Montana legislature will never actually pass that law this crazy so you can save those attorney's fees and give all that money to the revolution.

5:36 - A judge that is in Glenn's audience just said that states should pass laws saying that state and local police will not enforce federal laws. He says that this will in effect take away the power of the federal government because it can't control states without the help of local law enforcement, essentially seceding from the Union. The line under the guy's name reads "Senior Judicial Analyst." Looks like Kev has some competition for the WV cave Attorney General position. Game on. VIVA LA REVOLUCION!!!

• Mom just called these people "fringe lunatics." This is trenchant analysis. Rage Guage = 16.4.

5:41 - Commercial break. My mom is really geared up now. She cites a lack of specific examples from Glenn about the abuses of the federal government as what upsets her the most. She just muttered, "God, when is this show going to be over?" Hang on mom. 17 more minutes. Rage is at a dangerously high level of 32 right now. I've got 911 all tee'd up on my cell phone.

5:44 - The anchor that Glenn was throwing M&M's at is reading viewer emails. One of the emails says that the new health care plan will make our government worse than communism and fascism. I think mom just blacked out. I'm gonna go get some smelling salts.

5:46 - Glenn's guests are OUTRAGED that the federal government is going to help out some states that are in financial trouble. The judge/hopeful AG says that the Constitution does not confer this power on the federal government. Maybe not your honor, but I'm gonna go out on a limb and say that common sense leads us in that direction.

• My mom just saw Glenn wink at the judge. She is now questioning his sexuality. Rage Guage = 17.4 (it's gone down because of her acceptance and support of homosexuality).

5:52 - The judge is expounding on the commerce clause and I can only say that the audience members are incensed that the federal government can control commerce. Kevin is now chiming in as well. Give it up Kevin. The judge has locked up his position as Glenn's AG. Let me just say that these guys have absolutely no understanding of effects that an unregulated commerce system. I'm also certain that they yearn for the times of an agrarian economy.

5:58 - Mom just suggested that we turn Montana into some sort of semi-autonomous region in the U.S. that is in no way regulated by the federal government and see how long it takes them to kill each other. A violent and extreme response mom... but I may be able to support such a solution. Rage Guage = 28.3

5:59 - Glenn says we've learned a lot today. He asks the guy from Montana to sum it up for us. He says that the federal government is a "creature" that the states must get control of. Dear God. Unfortunately I believe that is precisely the lesson this show has attempted to impart.

Alright that is it folks. I'd like to thank Glenn Beck, my mom, and Glenn's audience (read: mental patients on a one hour leave from a local sanitarium) for joining showing us today. What we've learned: 1) Glenn and his followers (and future cave dwellers) believe that the Constitution consists solely of the 10th Commandment... Oops! I mean 10th Amendment; 2) the commerce clause is a bunch of malarkey and the modern economic system is waaaaaaay overrated; 3) my mom is now in need of high blood pressure medication; and 4) VIVA LA REVOLUCION!!!!

Bye Bye Boumediene

Lakhdar Boumediene, the detainee on the winning side of the landmark Supreme Court case that granted detainees at Guantanamo habeas corpus rights, is on his way back to France. Boumediene can consider himself among the "lucky" (I use that term very loosely because there is nothing lucky about being detained at Gitmo) detainees because he was able to secure rights to habeas corpus AND, probably more important, he was actually able to leave American custody. As I've noted in previous posts, whether and how many of the detainees will be released from custody is very much up in the air even if they can successfully challenge their detention. The uncertainty is due to the fact that the U.S. and most other countries won't accept the detainees because they been labeled as terrorists (some unfairly so).

Taking Bets On How Many Gitmo Detainees Will Be Released

If Vegas was setting lines on the amount of Gitmo detainees that will be released because the government's case against them is so weak, those lines may have just swung very heavily against the government. A ruling released this week by Judge Gladys Kessler said that the government's case to hold one of the Gitmo detainees was lacking in every facet. I have not read the opinion but this analysis by SCOTUSblog is clear and easy to understand. Apparently it looks like Judge Kessler gave the government a good deal of leeway in attempting to prove its case, including allowing the admission of hearsay evidence, but still found that the government did not have enough credible information to hold the detainee.

I think that this is certainly a bad sign for the government. The SCOTUSblog post says that 24 of the 29 cases heard by the D.C. District thus far have led to the release of the detainee. Now you have Judge Kessler allowing the government to cobble together a good case for detention in just about anyway it can and the information still is not enough. It looks like we are going to see the release of a good majority of these detainees because the government's case for detention against them is so weak.

Taking bets on the percentage of detainees that are granted release. Winner gets a blog shout out (which is a pretty big deal). As of now 83% of the case have resulted in release. I'm gonna put my money on 74%.

Showdown At The Gitmo Corral: The Obama Administration May Be Gearing Up For A Fight With The Courts

Many rejoiced when the day after Obama took office when he issed presidential orders closing the prison at Guantanamo Bay, and ordering the swift disposition of all pending habeas corpus motions from detainees there. In fact, I think that may have actually been the subject of my very first substantive post on this blog. In order to facilitate the closing of Gitmo and the disposition of the habeas challenges, Obama appointed the Guantanamo Review Task Force which is a compilation of representatives from several executive branch agencies. At the same time of course, the D.C. District Court was hearing habeas cases and has since set up a system to manage all of the pending habeas cases in that court. Now there could be a potential storm brewing between the Task Force and the court system because of discovery orders issued by the court. In a May 12th filing, government attorneys explained to the court that the extensive discovery required by these orders would overwhelm Task Force resources and cause them to fail to meet their deadline of January 2010 that was set for them by President Obama.

I'm not going to get into the minutiae of the 35-page memo (however, I suggest that if you read it you have some sort of encyclopedia of government agency acronyms at hand because just about every sentence contains at least 76 (exagerration) government acronyms in it), but I'll highlight what the government is asking for. The government basically says that discovery orders issued by some judges require the Task Force to go through its entire database of information on the detainees. This exhaustive search would take 4-12 months and the government says that such a search is not really necessary because a great deal of information is availiable to the detainees already without having to cull the entire database. The solution, says the government, is to either 1) allow detainees to proceed without discovery; or 2) allow them to proceed with the limited discovery that will include information that the Task Force has compiled or is compiling. I could flesh out the rest of what the government says, but I will not because it will involve me speculating a lot about this process which I admittedly don't completely understand. The point I really want to make in this post is that this could be the beginning of a major battle between the Executive and the Judiciary. The prime excerpt that illustrates what I mean is this (this language is actually repeated several more times throughout the memo):

"Accordingly, the imposition of litigation deadlines that supersede the diplomatic timetable around which the Task Force's reviews are scheduled could severly compromise the prospects for success of its efforts, in derogation of the President's authority in the realm of national security and foreign affairs."

Uh-oh. I've had my J.D. for about 5 days now so I feel comfortable in telling you that I think that language alludes to something called the "political question doctrine." For those of you who don't know what that is it is a legal concept that says that a court should stay out of a situation that falls within the purview of the political branches. In this case you have government lawyers saying that burdensome discovery orders from the courts will adversely affect national security and foreign policy which are traditionally thought to be within the realm of the political branches. There is no outright statement here that the court's actions will trample on a question that is actually a political one, but I think that the underlying threat is that if the court insists on following through with these comprehensive discovery orders then the Executive is going to fight them on it.

I've got to say that I find this to be a very strange situation. The reality is that the court system has been on the case of trying to give these detainees rights for far longer than the Executive. Granted we have a new Executive that appears to be interested in clearing up this mess and setting things right, but the court system has still been working very hard for quite awhile now to get a handle on the rights, specifically habeas rights, that should extend to the detainees. Obama's presidential order that began rolling up Gitmo and trying to find out what to do with the detainees is the kind of strong, decisive mood we've been looking for from the Executive, but that move is now interfering with the judiciary's duty to see these habeas cases through. The memo argues that the Task Force will alleviate a lot of the burden of the pending habeas cases by granting transfer, release, or prosecution for many of the detainees. I agree with that, and while that sounds great, I think that we still don't know exactly how all the Task Force's mission is going to play out and the court still has a duty to fairly and expeditiously (I emphasize the word "fairly" because I think that the Task Force is concerned with the speed of this process above all else) proceed with the pending habeas cases and that duty may be hampered by the Task Force's mission. I hope that this does not turn into a showdown between the Executive and the Judiciary because it will just further delay giving the basic rights that are due to the Gitmo detainees.

Terrorism and Basketball?

Are terrorists good at basketball? I don't know. I can't say I've every played with one. Osama bin Laden is somewhere around 6'5" so I'd say he was a pretty handy small forward in his day. I do know this about terrorists' basketball skill - they would play full court defense the entire game. I know this because I came across this article from the New Yorker on a very good blog I follow called Abu Muqawama. The blog is written by a former Army Ranger named Andrew Exum who is an expert on the Middle East and counterinsurgency which is what his blog focues on. The article (written by Malcolm Gladwell, author of The Tipping Point and Blink) I found on his blog looks at how forces involved in a fight against a seemingly superior opponent come out on top - basically how David beats Goliath. It uses a couple of basketball examples, the example of Lawrence of Arabia, and a couple others and looks at how they beat much more experienced and better equipped opponents. It is a really fascinating article and I suggest you read it. The conclusion of the article is that David can beat Goliath if David refuses to play by Goliath's rules.

The article draws analogies to the way insurgents employ David-type tactics in order to carry out a successful insurgency against an invading force. They do so in two ways: 1) they exert maximum effort against the enemy; and 2) they are willing to change conventions as to how battles are fought. I think that both of these are valid points, but I think that it is oversimplifying things to say that insurgents can win based solely on effort and an ability to behave in unconventional ways. I'm going to equate insurgents and terrorists a little bit in this article even though they are not always the same thing, but I do think that both points apply to insurgents as well as terrorists.

I think that insurgent forces tend to exert maximum effort because they are fighting for their own land. Look at the insurgency that the Afghan mujahideen fought against the Russians. The Afghan fighters were able to defeat the Russian invasion despite being outnumbered and greatly outgunned. They were able to retreat to the mountains of Afghanistan and wait the Russians out while inflicting significant losses on the Russian force. In the end, the persistentence of the mujahideen played a big role in defeating the Russians. So, "A" for effort mujahideen. Well done. But, let's not chalk the mujahideen's victory up purely to persistence because they also had a great deal of material support from the U.S. and other countries. The U.S. was able to give the mujahideen anti-aircraft missiles that could take out the Russian Hind helicopters that were inflicting a great deal of damage on Afghan forces. I don't think it is too presumptuous of me to say that without the more modern and lethal weapons that other countries supplied to the mujahideen, the Russians would have won out. I think that the technology gap is wide enough now that even the most determined insurgent force will be beaten unless they can narrow that gap somehow. Look at the insurgency in Iraq. It is not gone, but U.S. military persistence, superior training, and better weapons have allowed it to quell the insurgency somewhat and prop up some sort of government.

Let's now look at Gladwell's belief that Davids can be successful because they are willing to break norms and behave in ways that are unthinkable to their opponents. I would assume the best analogy in the insurgency realm would be that insurgents are willing to blend into the civilian population and even kill civilians in order to break the will of an enemy. This was especially true in the Iraqi insurgency. While this helped them turn favor against U.S. occupying forces for years the tactic eventually caught up to them and the public turned against them. I think that behaving in especially brutal ways actually hurts an insurgency because the insurgents become the enemy rather than the heroes.

Al-Marri Pleads Guilty

This is semi-old news (two days ago), but important. Ali Saleh Kahlah al-Marri plead guilty to one count of material support which could get him fifteen years in prison. Al-Marri's attorneys have asked that he be given credit for the time he served in military prison in Charleston, S.C. This plea should end put this case to rest once and for all. I don't see the government returning him to military detention for any reason, which is something that his attorneys argued might happen if the Supreme Court did not rule on his case. I won't go through the details of the agreement and related details I'll just point you to SCOTUSblog's summary.