New Blackwater Indictment

Just when you thought the news couldn't get any better for Blackwater (the company goes by the new name Xe but I refuse to call it that) it does. The Department of Justice unsealed a 13-count indictment today against two Blackwater contractors in connection with the shooting of three Afghan nationals in Kabul. Charges include: second degree murder, attempted murder, and firearms charges; and, the case is to be heard in the federal district court in the Eastern District of Virginia in Norfolk.

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.

U.S. Military Action in Yemen and Somalia?

President Obama says it is not in the cards. In a recent interview the president says that he prefers a strategy of international cooperation to control rising terrorism concerns in both Yemen and Somalia.

What "international cooperation" means here is fairly unclear. The U.S. is apparently giving $70 million in aid to Yemen to help fight the terrorist problem there. We were supplying Somalia with aid as well until that was severely curtailed by fears that the aid was ending up in the hands of al Shabab, the major terrorist organization in Somalia. Giving money to countries like Yemen and Somalia is not something that inspires a lot of confidence. We gave a lot of money and weapons to Afghanistan a few years back and look what happened. Of course, at this stage in the game I wouldn't expect much more information as to what the actual plan is to dealing with Yemen and Somalia. The U.S. doesn't have the public will or economic juice to engage in another major military campaign/nation building endeavor. To be honest, I'd be interested to see what kind of effect a U.S. special operations campaign would have on disrupting the emerging terrorist networks in Yemen or Somalia. This kind of campaign would be much more easily implemented in Somalia given the utter lack of a real central government to voice its displeasure at American presence. Don't get me wrong. I'm not saying I want to see American soldiers sent into harm's way again, but if we were to start military operations in either country this may be an option.

Another Big Detention Case Could Be On Its Way To The Court

A new case, Al Bihani v. Obama, may be on its way to further defining the scope of the government's power to detain those involved in the "War on Terror." The petitioner in this case is a Yemeni national who ended up attached to a fighting force that was supporting the Taliban and Al Qaeda in Afghanistan. Judge Brown wrote the opinion in this case for the D.C. Circuit Court. Here are a few highlights:

• 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.

Abdulmutallab Indictment

The indictment is out for the man who attempted to blow up Northwest flight 253 during its descent into the Detroit airport. There are six counts: 1) Attempted use of WMD; 2) Attempted murder; 3) Attempt to destroy an aircraft; 4) Placing a destructive device on an aircraft; 5) & 6) Both are counts of using a firearm in furtherance of a crime of violence. The WMD count may seem a little odd as the attack was not an attempted use of a nuke or a chem/bio weapon, but the attempted use in this case falls under the statute. You can imagine if he had succeeded that the resulting damage would have been massive. Also, a bomb is considered a firearm for the purposes of counts five and six. A life sentence in this case is basically a lock. The DoJ press release is here.

Stepped Up Security Measures For Airplane Passengers From Certain Countries

In response to the failed Christmas Day terrorist attack the Transportation Security Administration told airlines to conduct full body searches of passengers flying to the U.S. from countries such as Yemen, Nigeria, Saudi Arabia, Afghanistan, Cuba, Algeria, Lebanon, Libya, Iraq, Pakistan, Iran, Sudan, Syria and Somalia. This move, not surprisingly, has drawn the ire of foreign government officials and civil rights groups. A New York Times article today quotes both Nigerian and Algerian officials as saying that the U.S. is unfairly discriminating against their citizens by singling them out for enhanced security screening. The executive director of the Council on American-Islamic Relations said that security screeners should be focused on passenger behavior and not skin color in determining who to inspect more closely.

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.