Hey North Korea! Chill Out Bro.

If the world community were a high school, North Korea would be the weird kid that wears black all the time, disrupts class in bizarre and humorless ways, and will one day bring a Tek-9 to school and take out as many of his classmates as possible before he goes down in a hail of gunfire. In its latest act of rebellion and gamesmanship, North Korea sent out a ship called the Kang Nam 1 that is allegedly taking missile components to the country of Myanmar. Word around the halls of World High School is that North Korea is being "totally uncool." In response to this suspicious activity the U.S. sent a destroyer to shadow the Kang Nam and possibly stop it from delivering its cargo. The North has vowed that any interception of the Kang Nam will be seen as an act of war.

North Korea literally couldn't be more annoying if it tried. I would wager that there is a higher than 90% chance that the Kang Nam has nothing illegal on it. The New York Times has an article today that says that the ship is moving incredibly slow and speculates that maybe it is trying to goad the U.S. or another country into boarding it and sparking an international incident. The article poses the question "Are the North Koreans really that wily?" Of course they are. Actually, I don't think it is really that wily of a move in the first place. North Korea knows that the global community is hypersensitive towards it right now, and I think that it is simply looking to tick someone off enough so that they overreact and make this whole thing a much bigger problem.

At the risk of oversimplifying this issue I would say that the U.S. and other countries need to deal with North Korea the way that our mothers taught us to deal with that annoying kid at school. You can't let his ridiculous antics get under your skin. You can't do it because the actions are meant to be provacative, and reacting to them is exactly what he wants you to do. That being said, we can't simply ignore North Korea. We have to keep an eye on it and engage it in order to deescalate the tensions built up in that region, but we can't let them goad us into a needless fight.

The Uighurs Will Have to Wait

The Supreme Court has decided to hold off on deciding whether to hear the Kiyemba case until next term. The reason for this delay is pretty apparent and it is, I think, the prudent course to take. Kiyemba poses extremely difficult questions for the Court which it could possibly avoid answering if a political solution can be fashioned. The government has shown some recent success in resettling the Uighurs and there is still the possibility of resettling the remaining 13. Recent legislation passed by Congress and signed by President Obama has also put a new wrinkle into this problem. Whether this legislation is constitutional has yet to be seen, but it makes the questions in this situation more comples. I think it's important to give the Executive some more time to try to find a political solution to the complexities posed by the Uighurs and the remaining Gitmo detainees rather than having the courts fashion relief. I don't think this will happen in time, but it's good that the government has a chance.

Is Obama Backtracking On Indefinite Detention?

The Washington Post is reporting that Obama administration officials may be working on an executive order granting the President the authority to hold terrorism suspects indefinitely. If you think this sounds eerily familiar you are not wrong. This is precisely the tack that President Bush took in dealing with terrorists in U.S. custody. The tack that I speak of is using Executive power to control the confinement of terrorists, essentially bypassing Congress and the courts.

I pray this isn't true, but I fear that it might be. The Obama administration is finding itself in an increasingly more difficult situation because it looks less and less likely that it will be able to successfully dispose of the remaining prisoners at Gitmo by its self-imposed deadline of January 2010. It is getting no cooperation from Congress who refuses to appropriate money to allow the detainees to be brought to the U.S., and it also faces the specter of a major battle in the Supreme Court if Kiyemba moves forward. These pressures may finally be taking their toll on the Obama administration.

One of the very first things Obama did when he took office was take a strong, decisive, and expedited stance towards resolving the Gitmo issue. I've applauded that stance from the beginning; however, it seems that his plans may have been a little too ambitious, and he may have painted himself into a corner with the only route of escape being down the road that Bush travelled.

Dear Supreme Court,

Two letters were sent to the Clerk of the Supreme Court (I felt silly for never considering that the Supreme Court had a Clerk of Court until this point, but now that I'm educated, it makes sense and sounds like a pretty sweet gig) regarding the case of Kiyemba v. Obama (I'm not going to remind you what this case is about because 75% of my posts for the past month or two have to do with it). The first letter was from Solicitor General Elena Kagan and it dealt with a newly signed bill that says that the U.S. can't use money from the bill to transfer prisoners from Gitmo to the United States, and essentially encouraging the Court not to hear the case. I assume that what they are saying that the Court shouldn't hear the case because even if they decide that the prisoners can be released into the U.S., the prisoners won't be able to get here because the federal government can't use money to get them here (this is an assumption because there really isn't any explanation of the government's stance in the letter). In response to Kagan's letter, a letter was sent on behalf of the Kiyemba petitioners' counsel to encourage the Court to ignore the government's letter and agree to hear the case. The petitioners' letter says that this case deals with the interpretation of the basic constitutional right of habeas corpus and that the impact of the new act would amount to unconstitutional suspension of habeas.

Voodoo's verdict on this one: Agree with petitioners.

This seems like a very bizarre and a "grasping at straws"-like argument from the government. I understand the government's fear that the Court will hear this case and find that detainees at Gitmo who are successful on their habeas petitions are entitled to release in the United States. I understand that, but I don't see how this new law can be a constitutional check on habeas rights in any way. This is essentially a "purse strings" argument by the government, which means that the government is attempting to control the outcome of something by using its power to spend money. This kind of power is constitutional and the federal government does it alot (it is why the drinking age in every U.S. state is 21); however, I can't conceive of a convincing argument that the government can use this power to overcome a constitutionally guaranteed right like habeas corpus.

I guess we will find out soon enough whether this has any effect because the Court was supposed to hold a conference today to decide whether or not to grant cert in Kiyemba.

When Does a Terrorist Stop Being a Terrorist?

In a very interesting opinion D.C. District Judge Richard Leon found that the petitioner in Al Ginco v. Obama could not be held as an enemy combatant any longer because intervening events "vitiated" his membership with al Qaeda. The intervening events came in the form of eighteen months of imprisonment and torture at the hands of the terrorist organization. Al Ginco was apparently apprehended fairly soon after the end this incarceration. The government argued that Al Ginco was still a member of al Qaeda because after the incarceration was over he travelled to an al Qaeda safehouse and spent time in a training camp.

In what can only be described as an incredulous and slightly informal opinion (it included two exclamation points) Judge Leon said the government's argument "defied common sense", and chose to believe Al Ginco's story that his post-incarceration activities with al Qaeda were involuntary. This opinion is somewhat of a surprise because Judge Leon is the only D.C. District judge to stick with the Bush administration's scope of detention authority rather than adopting Obama's new standard. Despite that generally more restrictive view, Judge Leon obviously felt that the facts in this case weighed so heavily in the detainee's favor that he could hardly believe the government was making an argument for continued detention.

Hard to say whether this opinion will have much effect on future cases because I'm not sure whether the facts in any other detainee's case are as egregious as these. Nonetheless I think that other detainees could use the three factor test, 1) nature of the relationship before the intervening event; 2) nature of intervening events; and 3) amount of time passed between previous relationship and detainee's capture, as an argument against their own detention.

For a more in depth look at this opinion look at Lyle Denniston's entry on SCOTUSblog.

New York Times Journalist Escapes From The Taliban

Great story about journalist David Rohde who was kidnapped by the Taliban seven months ago while researching a book in Afghanistan. The NYT and other newspapers kept quiet about the kidnapping for fear that it might endanger his life. That is no small feat. This is also not the first time Rohde has been held hostage while reporting a story. He was captured and held in Bosnia in 1995 while reporting on the massacre of Bosnian Muslims during the conflict in the Balkans.

Walking (All Over) The Plank

Look at this story from The Plank talking about how al Qaeda is getting out of hand in Somalia. Ooooooooo, nice job Plank. Too bad you are about a month behind Voodoo since I brought up this point in a May 22nd post. I've also posted two more times (here and here) about the deteriorating conditions in Somalia both of which are mentioned in The Plank's post. What's up now Plank? I'm studying for the bar and I still have time to own you.

Also. Just to show you I'm staying on my J-O-B, and that Plank resting on its laurels, the New York Time reports a suicide car bomb killed a Somali security minister and 19 others today in Mogadishu (the picture on this article is terrifying). Stick with Voodoo folks.

Somalia Update

The Somali police chief was killed in a fight with Islamist rebels yesterday in Mogadishu. Analysts say that loss of the chief is a big blow to the government forces trying to gain back control of the country.

All I hear is bad news coming out of Somalia and any time I hear about a blow to government forces it is very disconcerting because the government is barely existent in the country as is. It seems like the scales in Somalia are tipping further and further in favor of Islamist rebels.

Election Situation in Iran

A friend asked me today whether or not I had blogged about the election controversy in Iran. This made me sad for two reasons. One, it shows that my "friend" does not read my blog. And two, it makes me sad because if he would have read my blog he would have known that I haven't written anything on the topic. The situation not only has national security implications, but it is also just important and blog-worthy.

As most everyone knows the basic facts are this. Iran recently had a presidential election between current president Mahmoud Ahmadinejad and challenger Mir Hussein Moussavi. After the election named Ahmadinejad the winner there were many allegations of election irregularities which led to riots around Iran and the call for an investigation into the election. Those are the basic facts. There are more interesting nuances to the story, but I'm not going to get into them. Instead we'll skip to the present and talk about a New York Times article I just read that says that the spiritual leader of Iran, Ayatollah Khamenei, met with Moussavi to hear his concerns about the election irregularities he alleges. The NYT article says that this is an important event because it shows that the unrest around the country is cause for concern among its leaders and an investigation may be around the corner. I have to concur with the Times's conclusion here. It certainly does seem like Khamenei's meeting with Moussavi is not of little significance and may represent deep concerns within the country's leadership that the election deserves closer inspection..

I also want to draw your attention to a post I just read on the blog Abu Muqawama. The post talks about a Washington Post op-ed that makes the point that polling in Iran revealed that Ahmadinejad had a nearly 2-1 edge over Moussavi with the strongest bloc of those voters being aged 18-24 (which is the demographic that alot of the protestors are coming from). Andrew Exum (author of the Muqawama blog) makes the interesting observation that maybe the people in the western world that are seeing these riots and reading about the civil unrest in Iran are not getting the whole picture. He makes the point that most of these visible protesters are probably made up of educated, well-resourced people who are not representative of the larger Iranian population. I think this is a very valid point to make. It's hard to tell what the pulse of a nation is when all you're shown and all you hear about are protests in major urban areas from people that are mostly students or people that are well off. For example, the NYT article has several quotes but they are from: an actor, a student, and a financial advisor. Not groups that often represent the popluation at large. The NYT also said that there have been crackdowns on student protestors in their dorms. This tends to underscore Exum's point that maybe this protest is only coming from a student demographic and others who are educated or well off (like a financial advisor). These are demographics that generally let their demands be heard and have the resources to do so. This isn't to say that they definitely don't represent the mood of most Iranians. Who knows how accurate the polling is? It could be old data or the data could be affected by the fact that people there are afraid to speak out against Ahmadinejad. Regardless of those possibilities, I think that Exum's point that we may not have the whole picture is one that should be considered.

As a final note I'd just like to say that any kind of civil unrest in a country that has, or is on the precipice of having, nuclear capability is a little unsettling.

This Is Great

The New York Times has a story about how the four Uighurs released last week are settling in to life in Bermuda. After seven years of unjustified detention by the U.S. they are finally free again and appear to have no open animosity towards America.

Is My Somalia Prediction Coming True?

The New York Times reports that U.S. intelligence officials are seeing a small flow of al Qaeda leaders out of Afghanistan and Pakistan and into Yemen and Somalia. I still think that Somalia will be the next major al Qaeda safe haven due to the facts that they have nothing resembling a functioning government, the strong radical Islamic movement, and the U.S. has a bad history there.

Four Uighurs Leave Gitmo

It's looking more and more like the government is going to do it's utmost to get all 17 Uighur prisoner out of Gitmo and resettled in other countries. Of course, this has been what they've been trying to do for years but it hasn't worked. Either fortune is smiling on the Obama administration or they are working major overtime because today 4 of the 17 of the Uighurs left Gitmo to be resettled in Bermuda. This follows closely on the heels of a report a couple days ago that the government may be close to a deal with the Pacific island of Palau to resettle the Uighurs there. I don't know if the government is intentionally trying to provide them with resettlement in the beautiful, tropical climes but that seems to be the way it might work out.

Interestingly, neither China nor Great Britain is happy with this news. The New York Times reports that China objects to the resettlement of the Uighurs and is demanding that they be returned to China to stand trial on terrorism charges. This is not news, China has demanded the Uighurs back for years, but that is not going to happen because, as I've said before, interntional law prevents the U.S. from transferring prisoners to a country where it knows they will be executed or tortured. Britain is upset because Bermuda is still a British territory and the government in Bermuda decided not to tell the British government that they were accepting the Uighurs. Oops. Surprise!!!

I'm telling you, it is in the government's best interest to get on its horse and get all 17 Uighurs out of Gitmo before cert is granted in the pending Kiyemba case or before the Court has to rule on it. Any decision by the Court on that case could be extremely controversial and could pose lots of problems for the government.

Last Kiyemba Update I Swear

I just saw this New York Times article saying that the U.S. may be making progress towards settling the Uighurs. Apparently the State Department is looking at Australia and... wait for it... Palau. Ahhhhh Palau. The sunshine state? Actually it would be the sunshine former U.S. trust territory (it was a U.S. trust territory until it got independence in 1994). Rolls right off the tongue doesn't it. Anyways, this is great news for the Obama adminstration and potentially the Supreme Court. If a deal can be reached to remove all of the Uighurs before Kiyemba gets cert or before a decision is rendered in the case then the Court can get rid of it on mootness grounds. This would save the Court from having to make a very tough decision and would give the Obama administration a little breathing room as well.

Kiyemba Update

SCOTUSblog reports that the Supreme Court will consider whether to hear Kiyemba in a private conference on June 25. Name of the case and docket number is Kiyemba, et al. v. Obama (08-1234). It can be said without exagerration that this is the most excited I've been in the past two weeks. Updates will follow as they pop up.

Apparently Boehner and McConnell Don't Want to Prosecute Terrorists

The first detainee from Gitmo arriving (or may have already arrived) in the U.S. to stand trial on terrorism charges. Ahmed Ghailani will stand trial in the federal court for the Southern District of New York for his role in the 1994 bombings of the U.S. embassies in Tanzania and Kenya. This is good news because the more prisoners at Gitmo that we can actually try the more we can justify the need for the prison and we don't have to beg other countries to take the detainees (which is proving to be a big problem).

Prosecution for terrorism is one of the main ways we are looking to empty the cells at Gitmo, but Rep. John Boehner and Sen. Mitch McConnell don't like Ghailani's transfer one bit. They say that Congress and the American people have made it clear that they don't want terrorists being brought into the U.S. I personally don't know how these guys wake up every day and look at themselves in the mirror. I mean, do they really take what they say seriously? Yes, Congress and the American people do not want the Gitmo detainees to be shipped into the U.S. and held here. That much is true. But leaving it there would not be telling the whole story. The whole story is that we don't want the 200+ detainees at Gitmo to simply be transferred from Gitmo to be held somewhere in the U.S. It is not true to say that we don't want them brought into the U.S. if they are being brought here to be prosecuted. That is precisely why we go out and try to catch terrorists - to bring them to justice for their crimes. We aren't bringing Ghailani over here for the hell of it, we are bringing him here to stand trial. If Boehner and McConnell don't want to catch terrorists to prosecute them then I invite them to give us a good alternative as to what they would like us to do. I'm sure that both of them would tell you off the record that they would rather us just capture terrorists, torture them, and throw their body in a ditch - but that can't exactly be said in public. I'm glad that we are finally taking detainees to trial. I hope this is one of many trials of Gitmo detainees. Granted, I think the actual trials could get really ugly given the allegations of torture and what not, but going to trial and giving detainees due process is the right way to go.

Double Feature: "Spies Like Us" and "The Detainees Strike Back"

Espionage Indictment

I've got to draw your attention to this NYT story that I just read about an American couple that just got indicted for being employed by Cuba to spy on the U.S. for the past 30 years. The husband worked at the State Department and would steal classified information which he would pass on to his wife who acted at the person who passed the information along to Cuban agents (her favorite place to do this was the grocery store). The best part of this story by far is the fact that they also used a short wave radio to pass encrypted messages to Cuban agents via Morse Code. After I finish this blog post I will begin writing the screenplay for the movie based on this story.

Kiyemba

Next up we have a new development in the Kiyemba case. Petitioners (the detainees) filed their response to the respondent's (the government) motion to deny certiorari. (Remember these are the Chinese Uighurs held at Gitmo that have won their habeas challenge and now want to be released into the U.S.) I don't often spend too much time going through such responses, but I thoroughly enjoyed this one. I damn near got up out of my seat and cheered at certain points. The general tone of this brief is described by Lyle Denniston of SCOTUSblog as "sharp." I would say that is an understatement. The frustration the petitioners' attorneys are feeling at their clients' situation is palpable. At one point the brief accuses the entire judicial branch of being transformed into a "hortatory court" (I've included a link to the definition of the word "hortatory" because I had no idea what it meant).

The general point driven home in the brief is that if the Court will eviscerate the power of habeas corpus if it allows the Executive to keep detainees at Gitmo even though they won their release through success in their habeas petition. Such a decision, petitioners argue, would strip the Judiciary of a vital check it has on the Executive. It trumpets two arguments againt the government's motion that I mentioned in an earlier post. First, it argues that the detainees should be treated differently than those in previous cases dealing with aliens and habeas because the detainees were brought to where they are by the Executive. They did not get to where they are on their own volition which is the case with the aliens in the cases cited by the government in their brief in opposition. Second, Petitioners argue that they are not choosing not to go back to China, they can't go back because they will be tortured, and in fact the U.S. doesn't have the power to send them back to China for this very reason even if they wanted to go. Preach on. This argument in the government's brief is so unbelievably absurd that I can't even believe they included it. The U.S. literally can't send them back to China, but it is flipping this fact around on the detainees and making it seem like they are the ones holding up this process.

I'm a big fan of what is being said here in principle, although I do think the language it slightly inflammatory. Thanks to the Bush administration we now find ourselves in a situation where we can't live up to core constitutional values because we would gravely endanger public safety. The Kiyemba petitioners want to be released in the U.S. Does habeas corpus grant them that right? I believe it does. I believe the government's argument that habeas only grants a right to release and not to transfer. This argument is disingenuous. The Framers meant habeas to grant relief to those wrongfully imprisoned. Unfortunately for us the Framers didn't really envision this situation. Nonetheless, we are not giving these detainees, who have succeeded in their habeas challenge, the relief which they constitutionally deserve. That is what the best part of me believes. Here's what the realistic part of me knows. We aren't going to release any Gitmo prisoners into the U.S. because granting some of them that right would mean granting it to them all. Some of the detainees, like the petitioners in this case, meant the U.S. no harm before they were brought to Gitmo. I would argue that most or all of them now have some serious beef with us. Then there are those at Gitmo who are dangerous terrorists who hated the U.S. before they went to Gitmo and hate the U.S. even more now. Regardless of the category they fall into, none of them can be allowed release in the U.S. without serious risk to national security. I really hate to say that. I wish that I could say that we can give the detainees their constitutional rights regardless of the situation, but I believe that we are in a situation now where our security obligations preclude us from doing that.

Nuclear Secrets Aren't THAT Important. Right?

The government revealed a document on Monday that contained "Sensitive" information about the location of U.S. nuclear facilities including those containing highly enriched, weapons grade uranium. The information even included the specific location of nuclear material inside the Oak Ridge facility in Tennessee.

I'm going to agree that the information revealed in this document is not seriously damaging. It reveals the locations of facilities that people already know about and getting inside the most important of them would involve a medium sized armed force (at least I hope). What does bother me about this that sensitive information of nuclear facilities is about as damn sensitive as it gets. We shouldn't have to even consider how much damage is done by revealing this information because those in charge of such information should never ever allow it to be accessed by the public.