Wednesday, March 31, 2010
These facts make the federal courts seem like a very effective tool in disrupting terrorist activities. According to the chart there have been 403 successful prosecutions of terrorism-related crimes in less than 9 years.
Thursday, March 18, 2010
Wednesday, March 10, 2010
Keep America Safe, an organization headed by former Vice President Cheney’s daughter Liz Cheney, created an ad that refers to seven of the attorneys as the “Al Qaeda 7" (another name conjured up to refer to these attorneys). In an especially tactless display, the website Investors.com ran an article about the “Gitmo 9” entitled “DOJ: Department of Jihad?”
Republican Senator Chuck Grassley also got in on the action as well saying that recent moves made by the Obama administration with respect to detainees were not “seriously thought through” and insinuated that it was the fault of these attorneys.. Spencer Ackerman, writer for the Washington Independent, points out that Grassley’s comments about these attorneys are particularly hypocritical because they defended detainees before military commissions which Senator Grassley helped start by voting to approve the Military Commissions Act of 2006. Those commissions explicitly required that detainees be provided with a defense. Senator Grassley is now impugning the people who worked within the system he helped to create.
Furthermore, it must be asked where the senator’s outrage was during the Bush years? Top attorneys during that administration dispensed legal advice authorizing torture, indefinite detention, and unrestrained electronic surveillance. All of that advice proved to be unconstitutional and undermined this country’s reputation.
It cannot be said that protecting the rights of those accused of crimes preludes a person from ardently pursuing justice. Before joining the Bush administration Jay Bybee, a top attorney at the Department of Justice, was a federal appellate judge. While on the bench Bybee wrote one opinion releasing a death row inmate because of the poor performance of the inmate’s attorney at trial. He also wrote another opinion throwing out charges against a man accused of downloading child pornography because he believed his Miranda rights were violated. These past pro-defendant decisions did not stop Bybee from aggressively (probably too much so) pursuing terrorists during his time with the Bush administration. It was Bybee who wrote the now infamous “torture memo” that professed to find a legal basis for torture in interrogation.
The sensational notion that current administration attorneys that provided a defense to detainees at Guantanamo Bay somehow makes them soft on terrorism or members of a “jihad,” is pure ignorance. These attacks are so extreme that many Republicans, including Ken Starr, Charles Stimson, and Jeff Sessions, are condeming them. These attorneys provided detainees with the rights that the Constitution, and recent legislative action, guaranteed them. The reason that this country recognizes those rights is not born out of a weak sense of justice, but rather out of a desire to protect individuals against the power of the collective.
Do not forget that not all of those who ended up at Gitmo were actually found to be enemies of the U.S. Over twenty members of a Chinese ethnic minority were held at Gitmo for seven years despite being found not to be enemy combatants. Most of them have now been released thanks to the efforts of the attorneys that represented them. Does that mean that some guilty detainees also receive legal representation? Of course, that is a natural consequence of democratic principles of justice, but it does not mean it is wrong. It is attorneys like the “Gitmo 9” that make the system work and keep it fair for everyone. They should be applauded, not vilified.
Tuesday, March 2, 2010
This is cross-posted at The Progressive Fix.
On March 23 the Supreme Court was set to hear Kiyemba v. Obama, the most significant case regarding
Here’s a brief background of the case. The detainees involved in Kiyemba are members of a Chinese ethnic minority called the Uighurs.
The central issue in Kiyemba is this: What good is the right to challenge detention if there is not also a right to be released from incarceration? It seems logical that when a court decides that a prisoner is not being lawfully held, he is entitled to be released immediately. However, it is not so black and white with the Gitmo detainees.
There are serious concerns over releasing Gitmo detainees on
Another legitimate concern is that even if a detainee was not a danger to the
Finally, there is the “not in my back yard” argument. No one is going to want former Gitmo detainees in their community. Even though a detainee may not be a legitimate security threat, a volatile situation could be created by citizens that are afraid of or angry at a detainee in their community.
Tackling difficult and complex issues is the Supreme Court’s most important job. Did the court punt on a major issue in this instance? Some might think so, but this case is different — the security concerns involving Gitmo detainees are very real and very serious.
The fact is that there are diplomatic solutions to the problem. In the Uighurs’ case, only five out of the original 22 Uighurs remain at Gitmo. The executive branch has been working hard to relocate them, and had recently persuaded
Thursday, February 18, 2010
No one is calling this an act of terrorism that I can tell, but it looks like one to me. There is no concrete definition of terrorism, but based on the various ones I've found it seems that it is defined as an ideologically motivated act of violence directed at a government or society. The suspect in this case laid out the problems he had with the IRS on the internet and said that the only answer was violence. In my book that makes this incident an ideologically motivated attack against a government agency and the people that work there. What if this guy were still alive and we could prosecute him? Would those people calling for military trials of the Christmas Day bomber and the 9/11 terrorists also say that the proper venue for a trial against the perpetrator of this crime is a military tribunal? Would the word terrorism even be mentioned in connection with this crime? It doesn't look like it has thus far. The NYT article doesn't mention it once (I think that would not be the case if the pilot's name was Mohammed instead of Joseph).
Let's take it one step farther. What if, instead of the act of one man, this was a conspiracy by a bunch of white men from Texas that wanted to strike at the U.S. government? We'd be looking at a situation that is less destructive, but very similar to the Oklahoma City bombing, which was a terrorist attack on American soil just like 9/11 and the Christmas Day attempt. Would we hold the guys that planned the Austin attack for days without an attorney to question them? Would we attempt to try them in a military tribunal? The answer is that we probably wouldn't and we definitely shouldn't. We didn't even consider doing that during Oklahoma City.
In this case it looks like the sole perpetrator is now dead, but I think it is important to ask whether or not, if the situation were different and more people were involved that could be tried, what our legal response would be. We successfully tried the Oklahoma City suspects in federal court. I think it likely that anyone charged in conspiring to attack the IRS building in Austin would be charged under a terrorism statute. I also think there is no question that they would be tried in a federal court just like many terrorism cases have been in the past but yet when it comes to Khalid Sheikh Mohammed and Umar Farouk Abdulmutallab people think we can opt out of the civilian justice system because they are "enemy soldiers" in the "War on Terror." We can't change our minds about how to approach these attacks just because we now say that we are "at war against terrorism." We've had a "War on Poverty" and a "War on Drugs", but we didn't take that as an opportunity to abandon the underpinnings of our legal system because it wasn't necessary then and it is not necessary now.
Wednesday, February 3, 2010
I think this article confirms what most people knew was a virtual certainty: that U.S. military forces are operating inside Pakistan. I also assume that these aren't the first U.S. military casualties inside Pakistan, but they are the first that we are hearing about. I think it highly likely that these soldiers were members of U.S. Army Special Forces who played, and continue to play, a major role in Afghanistan. The primary mission of Special Forces soldiers is what is called "foreign internal defense", which is essentially training groups of indigenous forces in a country to fight. This is a major component of the mission in Afghanistan as well as Iraq. Based on what the NYT article says these soldiers may have been a "training unit" attached to Pakistani paramilitary forces. That sounds like it is right up the Special Forces' alley.
I don't think that this incident is any kind of harbinger to escalated U.S. presence in Pakistan. There is virtually no chance we get heavily involved in Pakistan in the sense of having a military presence there. President Obama has made it clear that the goal is to get Afghanistan in some form of stability as quickly as possible and get out of there so that he can redirect that money towards fixing domestic issues. Since that is the goal I don't see any chance of us getting involved in Pakistan; however, this story does draw attention to a military presence in Pakistan that is usually downplayed.
Monday, February 1, 2010
I cheered when the federal government announced that it would try Khalid Sheikh Mohammed and the other 9/11 terrorists in civilian court in
The government is doing the right thing by ditching its plan. I believed that holding the trials in the city most affected by the attacks was going to be a great symbol of the resilience of NYC and the United States, as well as a symbol that we were repairing the rule of law that was damaged during the Bush administration. That symbol became less meaningful once it became clear that the trials would have serious adverse effects on the everyday lives New Yorkers, and could potentially put them in danger of another attack.
Although I agree with the decision to change the location of the trials, I also think that this is a setback for the administration. A quote in the New York Times article makes the point that the decision to move the trials is a propaganda dream for Al Qaeda. It’s a sign that AQ can make its presence felt years after 9/11 even in the absence of an actual attack.
In the end, the federal government has no one to blame for this but itself. Apparently Attorney General Holder did not contact anyone in NYC until just a few hours before the announcement that the trials would be there. There was no consultation with NYC authorities as to what security or logistical steps would be needed to facilitate the trials. Had there been preliminary discussions, the administration could have avoided what seems to be a significant setback in the President’s national security agenda. Now it seems like holding these types of high-profile terrorism trials in civilian courts is impossible, and that the solution to the problem is to try them in military courts.The Washington Post reports that Senator Lindsey Graham is planning to introduce legislation that would indirectly force these trials into military tribunals. The administration cannot allow that to happen. Cancelling the NYC trials is a setback, but the answer to the problem cannot be a reversion to Bush administration policies of dealing with terrorism’s legal issues through the military. Federal courts have handled terrorism trials in the past, they are absolutely capable of handling these trials, and the place for these kinds of trials is in civilian court, not in military tribunals. The solution to this problem should be to move the trials to a federal court in a less populous location where effective security measures can be more cheaply and easily implemented, and where the effect on the local population would be significantly lower than if they were held in NYC or Washington, D.C.
Monday, January 11, 2010
Jurisdiction for the case comes via the Military Extraterritorial Jurisdiction Act (MEJA), which has been a little utilized statute that basically allows for crimes committed by contractors overseas to be heard in U.S. federal courts. Blackwater got some fairly good news a couple weeks ago when a D.C. District Court judge dismissed an indictment against former Blackwater contractors for an incident in Baghdad in 2007 that left 17 Iraqi civilians dead. That case was thrown out on grounds that statements were unconstitutionally obtained from the defendants immediately after the incident. That case also had another major hurdle to clear because the MEJA only allows for jurisdiction over those that "support" the mission of the Department of Defense and since the Blackwater contractors in that case were working for the Department of State it is unclear whether the MEJA would have conferred jurisdiction on a federal court. This new case, however, does not have that same problem because the contractors charged in this indictment were operating under a DoD contract.
Sunday, January 10, 2010
Thursday, January 7, 2010
- International law does not affect the President's powers under the Authorization for Use of Military Force (AUMF)- Most of Al Bihani's arguments in this case were premised on the idea that international law constrained the President's powers as granted to him by the AUMF (which was originally put in place during the Bush administration). The court found that international law has no effect on AUMF powers for two reasons. First, Congress has never implemented the international laws of war here in the U.S. therefore they serve a purely advisory role in a legal sense. International law has no binding effect on any specific country unless that country has incorporated those principles into its own laws. Secondly, even if Congress did implement international laws of war, the AUMF does not incorporate them and therefore the AUMF, as a subsequent statute, would supersede the constraints of any implemented international laws of war.
- "Purposefully and materially supported"- The court found that Al Bihani "purposefully and materially supported" a group affiliated with Al Qaeda. That standard is set out in the Military Commissions Acts of 2006 and 2009, and it is the standard to detain a person in this fight against terrorism. What is interesting here is that while Al Bihani only claims that he was a cook, and did not fire a gun or engage in other belligerent activities, the court found that this was enough to meet the standard. That is because the court concluded that "traditional food operations" are an essential element to a fighting force.
- Al Bihani's argument that he should be released because fighting in Afghanistan has ceased- Al Bihani argues that the laws of war necessitate his release as the conflict in Afghanistan has officially ended. The court disagreed with this argument saying that it is unclear whether Al Bihani was a member of the Taliban or Al Qaeda and that while Al Bihani claims that the fight against the Taliban is over he does not claim that the fight against Al Qaeda is. Furthermore, the opinion states that ordering the release of a former Taliban soldier at this point would endanger the nation building process occurring in Afghanistan. Finally, the court says that determining whether hostilities have ceased or not is a decision to be made by the Executive or by legislative decree.
- The procedure used during Al Bihani's habeas challenge was sufficient- Al Bihani challenged that the procedures used by the D.C. District Court in his habeas challenge were insufficient and unconstitutional. I'm not going to list all his specific challenges or detail the court's analysis but I will say a couple of things. The court's opinion says that habeas procedures in other settings are not controlling, or even necessarily instructive, in the context of these terrorism detention habeas challenges. The opinion calls these new habeas challenges a "new branch of the [habeas] tree", and that the procedures and parameters are to be figured out by the courts trying them. Somewhat more lax procedural standards are necessary here because requiring a stringent standard would put too much burden on military forces to adhere to legal constraints.
This is interesting because it attempts to color the lines in a little bit more as to what the U.S.'s detention authority actually is, who can be detained, and what is required of during habeas challenges.
Wednesday, January 6, 2010
Tuesday, January 5, 2010
If you couldn't tell by this blog I generally lean to the left. I think that even though there are arguments that racial profiling can be an effective tool it is not how we should approach things. Singling people out because of skin color alone is not a principle that the policies of this country should reflect. That being said, I don't think that what is happening in this case is pure racial profiling, nor do I think that this response by the U.S. is an overreaction that is going to needlessly infringe on the rights of some and not others. Security screening needs to be more stringent everywhere. In a perfect world I believe that all passengers on every flight should be subjected to an equally elevated amount of security procedures; however, the capacity to do so simply does not exist right now. This means that we have to do the best with what we have. Citizens of these countries that fly to the U.S. are not the only ones being singled out. The NYT article says that passengers that are on flights that originate or pass through those countries are also subject to more screening. Taking that into account I would say a good deal of the blame for this rests with the governments of those countries being singled out. Just look at the list: 1) Yemen, Saudi Arabia, Afghanistan, Lebanon, Iraq, Pakistan, Iran, Syria, Somalia - these are countries that are essentially breeding grounds for terrorists. I don't think I need to say anything else about these countries to make my point; 2) Nigeria, Cuba, Algeria, Lybia, and Sudan - Algeria and Cuba aren't exactly what I would consider hot beds of terrorism, but the other three I would. Nigeria has no room to complain since the guy who tried to blow up flight 253 on Christmas Day is from there. Lybia is an historical sponsor of terrorism (Lockerbie bombing), and Sudan used to al Qaeda's base of operations and still has strong ties to terrorism. Until the governments of these countries start cracking down on the terrorists there, and in some cases actively supporting the terrorists there, then the U.S. has a legitimate interest closely scrutinizing people with connections to those countries whether the connection is through citizenship or travel.
Again, pure racial profiling is not a policy this country should adopt but when you combine a person's connection with a country to intelligence about active national security threats it is no longer about profiling, but about taking a pragmatic approach to protecting people. Unfortunately for the innocent people in most of the listed countries there are a significant amount of people there that want to do harm to Americans. It's up to the American government to protect its people and airlines from terrorist attack, and this seems like a practical way to do it. Until the systems are in place that can subject every passenger at an airport to a high level of scrutiny without causing complete gridlock we have to do the best we can with what we have. I think that means using intelligence we gather to focus screening procedures, which may mean some are singled out over others.
In the end, if you are flying to the U.S., you may just have to accept the fact that you may be subjected to more security than normal. Even if you are an American and you travel to one of these countries it seems that you will be treated in this way, and you should be. It's your choice to travel overseas, but it is not your choice to avoid security procedures that are in place when you travel, whether you think they are fair or not. If you don't want to risk being singled out in a security line and possibly feeling a little embarrassed then don't go to an airport.