Voodoo: National Security Law Blog

CIA on the Ground in Libya

2011-03-31T05:36:00.000-07:00

Well, the question of whether the U.S. has personnel on the ground in Libya has been answered. The NYT has an article out about the presence of CIA operatives in the country gathering intelligence on the political dynamics among the rebels, and, I assume although this isn't stated in the article, provide targeting support to U.S. air power.

I guess this fact was obvious before the article. There had to be people on the ground directing U.S. air strikes. The two obvious choices would be U.S. special operations forces or the CIA, and while it isn't necessarily out of the question that special ops are in Libya the use of CIA operatives allows the President to keep his promise that U.S. troops wouldn't be there.

The question that bothers me is: How did the NYT get its information? The use of CIA personnel in Libya was authorized by a presidential finding authorizing covert action, and covert action by definition is never meant to be traced back to the U.S. I just hope that the NYT got its information through some source other than an American government official.

Libya Isn't a War Because Libyan Soldiers Can't Shoot Back?

2011-03-30T07:49:00.000-07:00

I just read this short post by Harvard Law Professor Mark Tushnet positing an interesting argument for why the U.S.'s intervention in Libya is not a war requiring congressional authorization. Tushnet argues that U.N. Security Counsel Resolution 1973 makes it unlawful for Libyan soldiers to retaliate against coalition forces, and that because the jus ad bellum principle requires lawful retaliation for a war to exist, the action taken in Libya is not a war.

It is an interesting argument, but it seems to be completely absurd. It is illegal for a Libyan soldier to fire at coalition forces that are trying to kill him? How does that not violate another principle of international law - the right of a sovereign to defend itself? Yes, there is a Security Council resolution granting its forces the right to set up a no-fly zone and take other measures to protect Libyan citizens; however, a reading of the resolution does not explicitly prohibit Libyan forces from fighting back. That might be an implied condition of the resolution, I'm not sure because my knowledge of that particular area of the law is lacking. Even so, I don't see how UNSCR 1973 can strip the right of a country's armed forces to protect its homeland and make it illegal for them to fight back.

While I agree with Tushnet's ultimate point - that the Libyan intervention is not a war - I've got to disagree with his argument and go with my original argument that it isn't a war because the scale and nature of U.S. involvement is not yet sufficient to make it one.

Bobby Chesney has a more informative post about this at Lawfare.

New FBI Miranda Guidelines

2011-03-25T09:13:00.000-07:00

The New York Times has published the text of the new FBI guidelines for "custodial interrogation" of "operational terrorists inside the United States." Objective #3 appears to give FBI agents particularly wide latitude in what topics can be discussed in these interrogations. Questions about operational financing (as Bobby Chesney suggested)? Questions about general command and control infrastructure? Questions like these are certainly important from an intelligence standpoint, but may not be allowable under the public safety exception.

These new rules are bound to be tested in court at some point, and I'd say it is likely that the Supreme Court will, at some point in the future, deal with Miranda's "public safety" exception as it relates to domestic terrorism. Of course, Congress may beat them to the punch, but even then the Supreme Court will likely rule on any codification of the exception at some point as well.

New FBI Miranda Guidelines for Domestic Terrorism Cases

2011-03-24T17:32:00.000-07:00

The Wall Street Journal is reporting that the FBI is issuing new rules for agents regarding the reading of Miranda rights to suspects in domestic terrorism instances. This issue was significant in the case of Faisal Shahzad (the Times Square bomber) and Umar Farouk Abdulmutallab (the underwear bomber). In both cases federal agents interrogated the suspects without reading them their Miranda rights which is normally required, however an exception exists to the Miranda rule allowing for questioning in the absence of a reading of the rights in instances of an imminent threat to public safety. The exception is well-recognized, but those calling out agents for their actions in these situations argue that the length of time they questioned the suspects violates the suspects' rights.

These new guidelines are for internal use at the FBI and not new federal law, but their creation is likely to reinvigorate the debate about whether Congress should pass a law codifying the public safety exception and setting up codified guidelines for how it can be used. I've written on this topic at the Progressive Fix before here and here.

The "War" In Libya

2011-03-24T09:57:00.000-07:00

A lot is being made about the Obama administration's refusal to refer to the conflict in Libya as a "war." Jack Goldsmith believes the distinction between mere intervention and actual war is being drawn for legal reasons and Spencer Ackerman thinks it is flat out "deceptive." I'm going to disagree with both and say that the Administration isn't calling this a war because it isn't one - yet. Both Goldsmith and Ackerman recognize that there can and have been military actions that don't rise to the level of war, but don't give any guidelines as to why the activity in Libya exceeds the "war" threshold.

Ackerman, with whom I agree with on a lot of things, basically argues it is a war because the conflict is intensifying. Maybe so, but an escalation in activity doesn't make this a war. He states that the NATO intervention in the Balkans was a war, despite the fact that it was never referred to as such, based on the fact that the bombing lasted for 78 days. I'm inclined to agree with him on that point, but the air/naval bombardment in Libya has been going on for much less time.

Goldsmith isn't as pointed in his criticism of the characterization of this conflict. He points out his belief that the Administration is basing its characterization on Department of Justice memos written in relation to the interventions in Haiti and Bosnia that gave a legal basis for why those actions did not fall into the war category. In support of the proposition that neither the conflict in Haiti nor Bosnia constituted war, both of these memos cite, among other things, the presence of consent from the affected country and the low risk of substantial casualties or sustained hostilities. Goldsmith intimates that he's not buying that any of those circumstances exist in Libya. Clearly there is no consent from the government of the affected country since that is the target of the operation. However, Goldsmith believes that substantial casualties and the likelihood of sustained conflict exist.

I've got to disagree with both of these gentlemen. Goldsmith points to documents laying out a good legal framework through which to view the characterization of this conflict. He disagrees that the legal justification for avoiding the "war" tag in Haiti and Bosnia exists here. Ackerman seems to disagree with the characterization based on the escalation of activity. I think that the Haiti/Bosnia reasoning is still applicable in Libya. No, there is no consent from the Libyan government, but I don't think that it is a clear cut case that there will be substantial casualties or a prolonged involvement by the U.S. To the best of my knowledge the only loss the U.S. has suffered so far is a crashed F-15 which went down due to mechanical failure and not enemy fire. We are only a few days into the conflict, and while hostilities may be escalating, there is no definitive proof that we are committed to a long-term fight.

I don't know what threshold we have to cross before this intervention becomes a war, but I don't think we've crossed it yet. Without U.S. troops on the ground, and with air and sea bombardments just a few days old, I believe it is too early to be accusing the Obama administration of deceit by not labeling this action a "war."

Anne Coulter and Bill O'Reilly Talk about Radiation. Stupidity Ensues.

2011-03-18T11:53:00.000-07:00

That tingling feeling you just got was the reemergence of something information and fascinating returning to your lives - this blog. That's right, I'm back. I'm gonna give this another shot and see how it goes. Last time around I tried to write too much about legal topics (snore), so this time I will try to write fewer entries about a wider range of topics.

Here's the return topic: Ann Coulter and Bill O'Reilly talking about Coulter's belief that elevated levels of radiation are good for you. So stop whining, Japan. Coulter's basis for this belief: 1) An unspecified number of scientists who do some reports on the possibility that elevated radiation could be beneficial; 2) Women tuberculosis who had chest X-rays; and 3) people who lived in a building in Taiwan built out of Cobalt 60 who didn't get as much cancer as other people.

To his credit, O'Reilly seems pretty skeptical. That is, until he attempts to disprove her theory by stating that radiation is clearly harmful because of the number of people incinerated by the bombs in Hiroshima and Nagasaki. Yes, Bill, it was the radiation that incinerated those people. Take a look for yourselves:

DoJ Stats for Terrorists Tried in Civilian Criminal Court

2010-03-31T10:27:00.001-07:00

A few days ago the Department of Justice released a chart that digests all unsealed terrorism-related prosecutions that have taken place in federal courts from September 11, 2001 to March 18, 2010. The chart accompanies a letter from DoJ to the Senate Judiciary Committee which explains the effectiveness of prosecution under federal law on terrorist activities. It also highlights the fact that since 2001 the federal courts have produced 12 life sentences and 59 other sentences of over 10 years or more in terrorism-related cases. You can read the letter here and view the chart here.

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.

Goldsmith and Wittes on Civilian vs. Military Courts

2010-03-18T17:54:00.001-07:00

With all the recent argument over whether Guantanamo detainees should be tried in civilian or military court Jack Goldsmith of Harvard Law School and Benjamin Wittes from Brookings take a somewhat new angle - the argument isn't worth it. In this Washington Post article Goldsmith and Wittes acknowledge that there are benefits to pursuing trials in civilian court, and dangers about the unknowns of military commissions, but that at this point political capital is wasted on the argument. They suggest that politicians and the public need to accept the reality that we are stuck with many of these Gitmo detainees and that we should focus on "defining the contours of detention" rather than desperately try to figure out how to try all of the detainees.

I respect pragmatism as much as the next guy, but I'm not sure I can just accept Goldsmith and Witte's proposal. What they are saying is that indefinite detention should be accepted with respect to some current Gitmo detainees and, apparently, future captured terrorists as well. I don't believe that is something that we can accept. Even Goldsmith and Wittes admit that "legitimacy" and "historical judgment" are important considerations which civilian trials would provide; however, they come to the conclusion that fighting the alleged reality that many of the remaining detainees won't be tried means that the argument should be conceded. I don't think there is an argument that strikes more at the heart of this country's legal principles than detaining people indefinitely without charge and without trial, therefore I don't believe that the argument should be conceded. I agree that the reality for some detainees already at Gitmo is that they won't be able to be tried. Past bad decisions may have put this country in that paradoxical situation; however, I'm not willing to say that this country should just give up on the argument.

Gitmo 9

2010-03-10T09:06:00.000-08:00

In recent politically motivated attacks, conservative pundits and two Republican senators are accusing Obama administration attorneys – dubbed the “Gitmo 9” – of sympathizing with terrorists. The attacks against the attorneys are based on their previous representation of detainees before military commissions at Guantanamo Bay. The accusations are even aimed at Attorney General Holder because his old law firm assisted in the representation even though Holder did not participate in that representation directly.

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.

Is the Potential for Domestic Terrorism on the Rise

2010-03-02T17:05:00.000-08:00

A new report from the Southern Poverty Law Center is noting a rise in the number of anti-government groups, militias, and "patriot" groups. Many of these groups are fueled by racism and hate, and the SPLC cites a rise in immigration over the past decade and the recent election of President Obama as major factors leading to the increase.

This report is more evidence that we need to focus some attention on the entire spectrum of terrorism - including domestic terrorism. A great number of these groups cited in the report probably don't actually pose a serious security risk; however, some very well may and the attacks they carry out have the potential to be as devastating as 9/11. The most famous incident of domestic terrorism, Oklahoma City, ripped the entire face off of a federal building, killed nearly 200 people, and injured another 700. That attack was carried out by a small group that harbored anti-government views. These groups deserve especially close attention because they are made up of American citizens already in the country. They are not comprised of foreign terrorists who can be tracked when they cross international borders, or immediately draw the attention of security services once they are in the U.S.

I don't predict domestic terrorism will become as pervasive a problem as international terrorism, but the results of domestic terrorism could be just as serious. Hypothetical questions pop to mind with respect to how we would respond to a domestic terrorist attack post 9/11. Specifically, will there be an outcry to refuse domestic terrorists rights usually afforded to those arrested for domestic crimes? It's a question I've asked before. Many, mostly Republicans, derided the Obama administration for giving the Christmas Day Bomber constitutional rights which they claimed ruined the opportunity to gather valuable intelligence from him. Would the reaction to a terrorist with the last name of Jones from Texas be the same as the reaction one with the last name of Abdulmutallab from Nigeria?

In this vein, Spencer Ackerman has a great post on his blog about Lindsay Graham's ridiculous attempt to prevent civilian trials for terrorists and Rahm Emanuel's bizarre alliance with him over the issue.

Kiyemba Essentially Killed

2010-03-02T16:56:00.000-08:00

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 Guantanamo Bay detainees since it decided that detainees had the ability to challenge their detention through use of the constitutional right of habeas corpus. The question before the court inKiyemba was whether if a Gitmo detainee is granted release by a federal court through a habeas corpus challenge the executive branch must let him go him even if it meant releasing them into the United States. Today, the court decided to avoid answering that question and sent Kiyembaback to a lower federal court.

Here’s a brief background of the case. The detainees involved in Kiyemba are members of a Chinese ethnic minority called the Uighurs. U.S. forces captured them at a terrorist training camp in Afghanistan shortly after the beginning of operations there. The Uighurs were training to carry out terrorist attacks against China. They eventually ended up at the U.S. military prison at Guantanamo Bay, and were held there for years despite the fact that they were not deemed to be enemy combatants. They were held because legal constraints prevented the U.S. from transferring them back to China due to the likelihood that they would be tortured — even executed — and the U.S. could not find another suitable country to accept them. The Uighurs filed the Kiyemba suit demanding they be set free even it if meant releasing them into the U.S.

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 U.S. soil. One is that a court could end up releasing a dangerous detainee because of shaky evidence that couldn’t be used for their prosecution. It has proven difficult for government attorneys to justify the continued detention of some detainees because evidence against them was classified, tainted by questionable interrogation techniques, rests with government operatives still overseas, or is based on questionable statements made by fellow detainees. This means that a dangerous detainee could actually be released into the U.S. because of a lack of reliable evidence to justify their detention.

Another legitimate concern is that even if a detainee was not a danger to the U.S. when they began their incarceration, they are now. As you can imagine, being wrongfully incarcerated by a country for years may lead to some pretty negative feelings toward that country – feelings that could be expressed violently.

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 Switzerland to take two of the men. In addition, the other detainees had been offered -– and refused – to be released to the island nation of Palau. The administration argued that those offers changed the circumstances under which the detainees’ challenge was brought in the first place -– an argument with which the court agreed.

By sending it back to the lower court, the Supreme Court forestalled having to rule on a difficult question. Indeed, if the remaining five Uighurs are released to another country, the judicial system will be able to avoid having to make a decision on the case. Once the Kiyemba case is resolved, the executive will have more time to relocate the remaining detainees at Gitmo, and hopefully will be able to right the constitutional ship through diplomatic efforts rather than by judicial order.

Man Flies Plane Into IRS Building In Austin

2010-02-18T12:17:00.000-08:00

The New York Times is reporting that a man flew a small plane into the IRS building in Austin, Texas earlier today. One person is reported missing and two people were taken to the hospital. Based on internet postings the authorities believe it was an intentional act by a man named Joseph Stack.

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.

U.S. Troops In Pakistan

2010-02-03T06:43:00.000-08:00

The New York Times reports this morning that three American soldiers were killed and two were wounded in Pakistan. Their deaths were the result of a remotely detonated roadside bomb in a village near the Taliban-ridden Swat Valley. The military says that the soldiers were in the area training Pakistani paramilitary forces. The NYT says that the Pentagon has acknowledged that the U.S. military has sent advisers to Pakistan in a consulting role, but this article insinuates that this is the first time that U.S. soldiers were killed inside Pakistan while on a mission.

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.

9/11 Terrorists Won't Be Tried In Manhattan

2010-02-01T18:02:00.000-08:00

I cheered when the federal government announced that it would try Khalid Sheikh Mohammed and the other 9/11 terrorists in civilian court in New York City. Yesterday the trials’ opponents won out and the administration decided to nix its plans to hold the trials in New York City. A New York Times article about the decision explained that the stepped-up security measures would cost over $1 billion and would essentially shut down a good portion of lower Manhattan. Even Mayor Bloomberg, initially a major proponent of the plan, withdrew his support.

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.

New Blackwater Indictment

2010-01-11T12:48:00.000-08:00

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?

2010-01-10T17:31:00.000-08:00

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

2010-01-07T11:13:00.000-08:00

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

2010-01-06T18:26:00.000-08:00

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

2010-01-05T10:25:00.000-08:00

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.

Contractors in Afghanistan and Thomson Correctional Facility

2009-12-16T14:42:00.000-08:00

This is a quick rundown of two news stories that caught my eye:

Thomson Correctional Facility- This is a prison in Illinois where the President has decided to relocate all remaining Guantanamo Bay detainees. Yesterday, by Executive Order, President Obama commanded that the Secretary of Defense and the Attorney General work together to make TCC ready to house the high security prisoners from Gitmo. The order seems to set the deadline for the move at January 22, 2009 which is the original date set for the closure of Gitmo.

There are a lot of legal questions that go along with this move and I think the move will generate new legal challenges. The one thing I am most interested to know is how moving the detainees to American soil will affect the cases of those detainees that win their habeas petitions. Will they be eligible for release in the U.S. now that they are on American soil? I believe that I read an argument posited by the government at some point that a reason that detainees successful at the habeas stage aren't given the right to release in the U.S. because they were never actually in the U.S. I'm just brainstorming right now and I may be misremembering, but I think I read that argument somewhere.

56,000 more contractors to Afghanistan- The Washington Post reports that the Congressional Research Service is estimating that up to 56,000 more private contractors may be sent to Afghanistan. The use of contractors in Iraq and Afghanistan is something that has interested me for awhile and I've published one paper and written another on the topic. The Washington Post article says that it could raise the number of contractors in Afghanistan to over 160,000. That is a lot and is similar to the number of contractors used in Iraq. The increase in the number of contractors also increases the risk of contractors getting into trouble in Afghanistan. There were several high profile incidents in Iraq involving contractors (mostly from Blackwater) that raised the question of whether or not private contractors that commit crimes in a war zone should be subject to the military justice system. I argue in the second paper that I mentioned above that they should be subjected to the military system for practical purposes and because they are in fact involved in fighting a war. Whether or not contractor problems will actually arise in Afghanistan like they did in Iraq remains to be seen, but with the increase in number the chances get higher.

Sixth Amendment Decision in Ghailani

2009-12-11T11:16:00.000-08:00

I've mentioned the case against Ahmed Ghailani before as it being a case in which we may get a good look at how the government will deal with high-profile terrorism cases - specifically the upcoming cases against Khalid Sheikh Mohammed and the other 9/11 terrorists. If you'll remember, Ghailani is charged with participation in the 1998 U.S. embassy bombings in Africa. He was captured by Pakistani authorities in 1994 and then held (and allegedly tortured) in a CIA black site prison before being transferred and held at Guantanamo Bay.

During his stay at Gitmo, Ghailani was represented by two military JAG officers, Lt. Col. Jeffrey Colwell (Marines) and Major Richard Reiter (Air Force), in his appearance before a military commission. The two attorneys developed a good rapport with Ghailani and it was Ghailani's wish, as well as the two attorneys' wish, that they be allowed to remain as his defense counsel when he was transferred to the civilian justice system for trial. The military denied the request and removed the two officers from the case.

Ghailani recently moved the court in the Southern District of New York to declare the military's decision to remove the two military attorneys from the case violated his Sixth Amendment right to counsel. Ghailani sought this relief in the form of an injunction against the Secretary of Defense. On November 18 Judge Kaplan of the SDNY entered his opinion denying Ghailani's motion. Kaplan's opinion is very interesting. Here's a quick run down of the opinion's salient points:

He starts off by determining if a federal court in a criminal trial does in fact have ancillary jurisdiction to grant an injunction (a traditionally civil remedy) as long as it would aid the court in fully administering justice in the case. In this case Judge Kaplan said it would be appropriate to exercise ancillary jurisdiction because Ghailani was challenging that the Secretary of Defense was violating his constitutional rights.
Next Judge Kaplan examined the question of justiciability. While jurisdicitonal analysis involved a determination of the power of a court to hear a case, a justiciability analysis determines the propriety of the court to hear the case. Specifically in this case the court had to determine whether granting an injunction over the Secretary of Defense is appropriate since he is an executive officer. This type of justiciability is referred to as the "political question doctrine." Essentially what it says is that there are some questions that fall outside of a court's purview because of their inherently political nature. In this case the court found that questions of military tactics were political questions that are improper for federal courts to hear; however, the court found that Ghailani's case had nothing to do with military tactics. The court here found that Ghailani's case dealt with his constitutional rights at trial and the potential violation of those rights by the Secretary of Defense. As such, the court found this question justiciable and moved on to the substance of Ghailani's constitutional challenge.
The opinion is somewhat odd in the fact that Ghailani's question was whether or not he had a Sixth Amendment right to keep his two military attorneys but yet in the opinion Judge Kaplan spent the first 29 pages recounting the facts and analyzing jurisdiction and justiciability. The analysis of the Sixth Amendment rights is short and only takes up the last 3 pages of the opinion. What the court found was that Ghailani had no right in the civilian justice system to what it dubbed "continuity" of representation. While there is a provision in military law that seeks to preserve the continutiy of representation (meaning that you keep your same counsel throughout your case) there is no such provision in the civilian system. I think that Judge Kaplan summed up the civilian justice system's view of the matter when he said that federal civilian courts are "more concerned with fostering an effective adversarial system than with ensuring satisfying attorney-client relationships." In the end Ghailani will not get his military attorneys back and will have to settle for the private attorneys currently representing him.

It seems to me that the legal reasoning in this opinion is dead on. I haven't done research on the topic myself of course, but it seems to make sense. As I read this I thought Ghailani would get his attorneys back because Judge Kaplan seemed to work so hard to find jurisdiction and find a good reason that the court should decide the motion on justiciability grounds. I think that if he were so inclined he could have tried to carve out an exception to the general Sixth Amendment view that continuity of representation is not something federal civilian courts are concerned with. After all, this case, and other Gitmo cases, are not your normal civilian criminal case. It's a fact that these detainees have been subjected to both the military and now civilian justice system and most if not all had military lawyers representing them before the military commissions. Those military attorneys have had more of an opportunity to create a rapport and get the detainees comfortable with them which is no small feat. Making civilian attorneys start all over and try to create some kind of relationship with the detainees seems to me to be a daunting task, and a task that, if they fail, could adversely affect the smoothness of the upcoming trials.

New Charges Connect Fight in Somalia to the U.S.

2009-11-24T10:29:00.000-08:00

Anyone who has ever read this blog knows that the troubles in Somalia are a pet issue of mine. Yesterday the Justice Department revealed that it has filed terrorism charges against several Somali ex-patriots. The charges are against 14 individuals from the Minneapolis, Minnesota area who recruited and raised money to send 20 Somali-Americans to fight in Somalia for the terrorist group al Shabaab. Minnesota is not exactly known as a hot-bed for terrorist activity, but apparently a good number of Somalis fled the country in the early 1990's when the government collapsed and settled in the Minneapolis area. In recent years struggle over the country has continued between an internationally recognized and supported central government and extremist groups - most notably al Shabaab. This struggle led to an influx of foreign troops from Ethiopia and other African countries to help the central government regain control of the capital Mogadishu and the rest of the country. Al Shabaab has rallied a good deal of support to fight the foreign influence of other African countries and U.S. support. The New York Times reports that al Shabaab has used the internet as a tool through which to recruit foreign fighters including those from the U.S. One of the men recruited by those indicted in this case is Shirwa Ahmed who became the first known American suicide bomber. The men here are charged under material support statutes as well as related conspiracy statutes.

National security implications here are clear. The indictments allege that these men attended al Shabaab training camps in Somalia where they were indoctrinated in anti-Americanism. While there are no allegations that these men were planning any attacks here in the U.S., it would not be too much of a stretch to believe that such plans could easily develop.

Here is the DoJ press release. Also: Omar indictment, Faarax-Isse indictment, other indictment.

A Bellwether for 9/11 Trials

2009-11-23T11:47:00.000-08:00

I've been shamefully neglectful of this blog lately and I apologize. I'm going to try to pick things up a little bit. I think that this story in the New York Times today is right on point about an upcoming terrorism trial in New York City forecasting what may come to pass in the future trials for the recently transferred Gitmo detainees that took part in 9/11. The possible predictor case is the one against Ahmed Ghailani (a past post about him can be found here). Ghailani is being tried for his participation in the 1994 bombings of the U.S. embassies in Kenya and Tanzania. The article contains quotes from Ghailani's attorneys that say that the similarities between their client's case and those of the 9/11 conspirators are superficial only. While that may be true the superficially similar issues couldn't be more important. Those similar issues include: confinement at Gitmo, statements obtained through torture, and harsh conditions of confinement. All of these, especially statements obtained through torture, could pose major obstacles for federal prosecutors as they try to get convictions for Ghailani and the 9/11 terrorists.

Another major issue that Ghailani is challenging is his right to a speedy trial. This issue isn't as high-profile as the other, but nonetheless important. In the federal system a defendant is entitled to two types of speedy trial protection - statutory and constitutional. By statute (18 U.S.C. 3161) federal prosecutors must file an indictment within 30 days of a defendant's arrest and then, if he pleads not guilty, trial must commence within 70 days of the filing of the indictment or the defendant's first appearance in court. The constitutional protection of the right to a speedy trial comes from the Sixth Amendment. Courts balance several factors to determine whether or not a defendant's constitutional right to a speedy trial has been violated. If Ghailani were a normal criminal defendant there is no doubt his case would be thrown out on speedy trial grounds. He was captured by U.S. forces in Pakistan in 2004 and was reportedly moved around between several U.S. run "black site" prisons before finally winding up in the military prison at Guantanamo Bay. Therefore, he has been held for five years without being indicted. Even under the more lenient constitutional speedy trial standard a federal court should throw out his case. But Ghailani is not a normal criminal nor a normal defendant in a federal prosecution. He's been held by the U.S. government for five years with no hint of prosecution, but during the majority of that time is was the strong belief of the U.S. government that he was more a prisoner of war than a criminal. Like it or not that was the official position of the government during the Bush administration, and therefore no federal criminal procedures were started in his case. Because of the federal government's position regarding men like Ghailani I definitely don't see his speedy trial motion succeeding. The judge in charge of this case would have to be extremely bold to consider throwing this case out on those grounds. First of all, he would be vilified in the court of public opinion. Second of all, the judge has legal avenues through which to deny the speedy trial challenge. As I said, the constitutional analysis of speedy trial is based on a balancing test, one factor of which is the reason for the delay. The reason for this delay was that the U.S. government's policy was that Ghailani was not a prisoner subject to the federal criminal justice system. There was literally no way for federal prosecutors to bring a case against him before now. That sounds like a pretty good reason to me. The statutory speedy trial also contains exceptions, one of which allows a judge to consider the interests of justice. That is usually a catch all provision that comes in to play only in extreme circumstances. I would consider this to be an extreme circumstance. There are probably multiple other arguments that prosecutors will make regarding this motion, but I just thought that an overview of a couple would be helpful here. Again, I don't think that there is any chance that the judge grants this motion, for multiple reasons, but it is a novel and interesting legal issue in these cases.

The last thing I will mention about this NYT article is that I think it gives a small, but fascinating window into how high-profile, highly sensitive terrorism trials will work. I'm specifically talking right now about the defense attorneys will go about properly preparing to defend their clients. These cases inevitably involve a great deal of top secret information which people not in government service are unable to look at. This has been a major area of contention as to how terrorism prosecutions can actually be carried out. One side argues that you can't allow a lot of terrorists to be prosecuted because it will lead to the leak of sensitive intelligence which will harm national security. Others argue that we have to prosecute those terrorists that we capture for the sake of sticking to our constitutional values. Both arguments have merit. The article reveals that Ghailani's attorneys have obtained security clearances from the government, and the judge in the case has set up a secured room in which the attorneys can view classified information related to the case and prepare written submissions based on that classified information. This seems like a logical and efficient way to deal with this issue. It still raises concerns of course. One of those concerns is that these are private attorneys that are being allowed to view highly classified information. I think the idea of non-governmental entities looking at classified information still makes people nervous, but they are still subject to criminal penalties for revealing that information just as those that work for the government are. Also, let's face it, those that work for the government and have security clearances are always the most tight-lipped people around.

No matter how you feel about it, we have entered the time where the U.S. is again treating terrorists more as criminals than soldiers. That means that terrorists will be tried in civilian courts of law. Questions still remain: What is the best way to carry out a terrorism prosecution? Can federal courts as they exist now effectively try terrorists or is it too burdensome? Do we need some kind of stand alone judicial entity such as a national security court to handle sensitive national security issues? How the Ghailani trial unfolds will provide some answers, but not all of them. I believe that if the trials of the 9/11 conspirators happen (That is, as long as the defendants in those cases don't plead out which it does not look like they are going to) we will get a good look at how the U.S. federal court system can handle high-profile terrorism trials. At that point, hopefully, this country will get some good guidance as to what procedures it needs to implement with terrorists from the moment of capture to the end of trial. I think these trials will end up being historic events in America's continuing fight against terrorism.

A New Wrinkle in Kiyemba?

2009-10-29T13:31:00.000-07:00

Yesterday Lyle Denniston of SCOTUSblog wrote a post drawing attention to Section 1041 of the National Defense Authorization Act which would bar the Department of Defense from transferring detainees at Guantanamo into the U.S. even when the transfer is court ordered. The new law seeks to prevent transferring detainees into the U.S. by not allowing the Secretary of Defense to use any money appropriated to him to effect a transfer.

Denniston's post says that this is a new issue in Kiyemba and while that is true I don't think that it actually puts a new wrinkle into the case. The bottom line determination that the Supreme Court will have to make is whether or not giving detainees the right to challenge their detention through habeas corpus without giving them the right to the remedy of release from detention is constitutional. Kiyemba is about Gitmo detainees that won their habeas challenges years ago but were then kept in captivity at Gitmo because a suitable country for relocation could not be found. For obvious reasons the government, the courts, and the American people did not want the detainees released in the U.S. While are reasons were obvious they are most likely not constitutional. How can you have a system by which those held in captivity can successfully challenge that captivity and not be released? A right without a remedy is useless. I realize that the situation with Gitmo detainees is not so black and white. Releasing those detainees into the U.S. could be a recipe for disaster. Some of those set for release could be hardened terrorists that won their habeas challenge because of lack of government evidence to justify detention. Some set for release may not have been terrorists at all when they were captured, but now that they have been wrongly held at Gitmo for years they may have developed a hatred for America which they may express violently. Regardless of all that though, I cannot see how the Court will come up with a convincing constitutional reason as to why detainees can challenge their detention and succeed but not be eligible for release.

Coming back around to my original point, what I'm trying to say is that while this new law may be an issue that has to be dealt with in Kiyemba, I do not think that it is going to tip the scales in favor of the government. If not granting a detainee release after a successful habeas challenge is unconstitutional then a new law attempting to halt the release of a detainee who is entitled to release is unconstitutional. In the end, I think this new law may add a few pages to the Court's decision but I don't believe that it will be a deciding factor.

*The closer we get to a decision in this case the more I hope that the government can figure it out on its own and avoid a decision by the Court. There are still a few months before oral argument and then time after that before the decision will be handed down. Hopefully the Gitmo situation, or at least the Uighur situation, will be resolved by that point. Administratively closing down that prison is much more desirable than judicially resolving it.

Cert Granted on Kiyemba

2009-10-20T07:59:00.000-07:00

IT'S ON PEOPLE!!! Voodoo's favorite detainee case will be heard by the Supreme Court some time in February or March. It's been a long road. The Court tried desperately to give the government more time to get all of the petitioners in the case out of Gitmo, but it was unable to do so. The government will have until the day the Court decides the case to transfer the remaining Uighurs out of Gitmo thereby making the case moot and allowing the Court to not decide the major issue in the case. If the Court does decide the major issue then we will have an answer as to whether the government must release into the U.S. Gitmo prisoners that have prevailed in their habeas challenges. However the Court comes out on the case there will be a major outcry. Stay tuned.

Senate Judiciary Paves Way for USA PATRIOT Act Extension

2009-10-09T08:32:00.000-07:00

A bill extending parts of the USA PATRIOT Act (trivia fact: the name is actually an acronym standing for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism") passed through the Senate Judiciary Committee yesterday. The bill that passed through the committee does not change very much of the act but it does affect one notably controversial provision - the one dealing with National Security Letters ("NSL's). NSL's are essentially administrative subpoenas that are issued by the FBI and other agencies to obtain information about individuals from companies such as telecommunications companies and financial companies. The controversial aspect of NSL's was the virtual absence of judicial oversight. A federal agency could essentially send the NSL out to a company with no review or sanction by a court and there was no way for the company to challenge the subpoena. The lack of judicial oversight has since changed, but the NSL's are still controversial. The new proposed bill coming out of the Senate Judiciary contains some changes that would tighten up the standard for issuance of NSL's and require "specific facts" as to relevance.

Downward Spiral Continues in Somalia

2009-10-02T15:32:00.000-07:00

The U.S. is delaying aid to Somalia for fear that U.N. officials are illegally funneling the aid to the terrorist group al Shabbab. According to this New York Times article the U.S. is by far the biggest contributor of aid to Somalia, a country where thousands upon thousands are dying of malnutrition.

While the aid is not expected to be cut off permanently this delay situation is a catch-22. While cutting off aid is aimed at not helping al Shabbab it indirectly does help them. The more desperate the Somali population becomes the more susceptible it will be to control by terrorist organizations like al Shabbab. It's also important to note that one reason we went into Somalia in the early 90's was to secure food and aid distribution which was being controlled by warlords. I don't want to get ahead of myself or make absurd predictions, but it's starting to look more and more to me like the U.S. may engage in some sort of intervention in that country.

Worst Plan Ever

2009-10-02T12:26:00.000-07:00

As a North Carolina native I've been remiss in not posting about this earlier, but there was not a whole lot to share about it up to now. Of course, I'm referring to Daniel Patrick Boyd and his band of lackeys. They were arrested back in July for planning a terrorist attack. I did not realize until now that they were planning to attack the Marine Corps base at Quantico, Virginia. Daniel Patrick Boyd, are you serious? Out of all the targets you could hit, why would you choose a major U.S. military installation? Not to mention that this particular military base is home to the elite FBI Hostage Rescue Team. It is a place crawling with highly trained warriors. I guess it is marginally less reprehensible than attacking a school bus full of innocent, unarmed children, but it's almost certain that an attack on Quantico would be swiftly and efficiently obliterated before it got very far at all. Furthermore, there was zero chance these jokers were ever going to stay out of jail long enough to get to the point where they were going to carry this out. All of the members of this conspiracy took multiple trips to terrorist hotspots such as Israel, Jordan, Kosovo, and Pakistan. On top of that they were buying all kinds of weapons. It's difficult to think of a better way to get yourself noticed than taking multiple trips to known terrorist countries, and buying up tons of weapons.

Anyways, those are just my thoughts on the situation. Here's the indictment in U.S. v. Boyd, et al.

Former Military Officers Call for Gitmo Closure

2009-09-30T12:23:00.000-07:00

Yesterday a group of retired military officers demanded the close of the prison at Guantanamo Bay and called for the remaining detainees to be transferred to the U.S. where they would be taken into the criminal justice system. The officers believe that the continuance of the prison at Gitmo gives terrorist organizations a valuable propaganda tool with which to attack the U.S.'s credibility and recruit more members. They believe that all of the detainees should be tried and they adamantly oppose any system which would allow indefinite detention without charges being brought.

Amen to that. Well... kinda. It's pretty clear to those who read this blog that I am opposed to continuing a detention system at Gitmo and I believe that the U.S. needs to exhaust all efforts to bring those detainees to trial. Unfortunately, I also believe that a good number of the remaining detainees cannot be brought to trial with any real chance of actually obtaining a conviction. I also believe it to be a possibility that more than a handful of those who can't be brought to trial are extremely dangerous. I don't want to see those detainees released. That being said I'm also unsure how we can legitimately continue to hold them.

Here is how I see this playing out once they are introduced into the U.S. criminal justice system, as the officers urge. We will have to move expeditiously to charge them with a crime and bring them to trial because it would be their constitutional right. If we lack the evidence to do so we will have to release them. Not only would they be released, but i assume that they would be released here in the U.S. Now the government could try to construct some sort of system where we can administratively detain them without bringing charges against them (Israel has a system like this). However, any such system would be incredibly controversial and may draw the same ire that Gitmo does. In addition, I think that if the government tried to apply an administrative detention system to those detainees it could run up against an ex post facto problem.

This post is really just speculation. I haven't done extensive research regarding the ramifications of any of these potential decisions, but I think that they are legitimate concerns.

Uighurs and Nukes

2009-09-25T06:26:00.000-07:00

Kiyemba

That's right. Kiyemba is back baby... well for a short time at least. If you'll remember the Supreme Court put their decision on whether to hear the case on hold over the summer. I believed the reason for this was to give the government more time to resettle the Uighur detainees and therefore avoid hearing the case, and it looks like I was right... mostly. SCOTUSblog reported yesterday that the Pacific island of Palau has agreed to accept 12 of the 13 Uighur detainees that remain at Gitmo. Six of the twelve have already agreed to the transfer and discussions are ongoing with the other six. It's important to note that three of the potential transferees are not technically petitioners in the case, but have expressed an interest to be included. The remaining detainee that has not been offered transfer is a petitioner in the case. This means that if a suitable country for resettlement of this detainee is not found the Court could still hear the case without the entire matter being moot.

I can't for the life of me figure out why Palau will only agree to 12 of the 13. You figure that if you can negotiate to get 12 transferred to Palau then you could convince them to take the 13th and just be done with the matter. I'm not sure if the 13th (Arkin Mahmud) is more dangerous than the others or what, but keeping this potentially huge case alive because of one person is not something that the government could possibly want. Time is running out to get these transfers completed because the Court will hold a private conference next Tuesday to decide whether or not it will hear the matter. I think that they will agree to hear it unless there is some way they can delay that decision again. If the Court can't delay any longer the government is under the gun to get this matter resolved before it will have to engage in a very serious battle before the Court.

Nukes in Iran

Mahmoud is really stirring things up again. In a not entirely surprising story it was revealed that Iran has been constructing yet another uranium enrichment facility this time around the city of Qom. This is yet another big step in Iran's journey toward possessing nuclear weapons. The U.S., Britain, and France have known about the facility for years but just recently alerted teh IAEA. All three called for stiff sanctions against Iran if it did not back off of its accelerating journey towards nuclear weapons. Iran, of course, claims that its nuclear ambitions are purely for civilian purposes.

This news dampens the mood following the historic U.N. agreement to scale back nuclear weapons around the world in an effort to stem the threat of nuclear terrorism.

Obama Will Not Seek Further Legislative Power to Continue Detention

2009-09-24T12:05:00.000-07:00

The New York Times reports that the Obama administration will not try to pass further legislation to justify/clarify standards for detention of terrorist suspects. They say that current legislation is basis enough for the government's detention power. They are going to use the current legislation as a basis to hold up to 50 current detainees indefinitely because they are deemed to dangerous to release yet cannot be brought to trial for various reasons. The government says that it will use the current habeas system to review the detention of those that they will detain further.

The article does not say what the specific legislative basis for detention is but I assume they are referring to the Authorization for Use Of Military Force ("AUMF") that was passed on the heels of September 11th. While I believe that we can't simply let terrorists go I also believe that we need more specific and targeted legislation to legitimize the detention system. The AUMF is too broad to base detention powers on. The AUMF gives the President power that is essentially unilimited in time. If we base detention powers on that ground then we are allowing the Executive to detain people forever without any truly defined system by which to manage those detainees. The article says that part of the reason for this move is that any legislation on this subject is likely to be met with a great deal of resistance from Congress and I realize that, but from a purely ideological standpoint it makes me uncomfortable that we can just hold people without trial and without any kind of set procedures to deal with those particular people.

Petraeus on Counterterrorism/insurgency

2009-09-23T12:21:00.000-07:00

General David Petraeus gave a speech in London last night outlining the challenges in of the fight in Afghanistan, and the necessity of meeting those challenges. I think that this quote gets at a very central issue in a concise and clever way:

"But the core of any counterinsurgency strategy must focus on the fact that the decisive terrain is the human terrain, not the high ground or the river crossing."

I love that quote. Traditional combat operations are necessary to get a foothold, but the real battle that needs to be won is stabilizing the region that you are in so that the local population is not reliant on, or in fear of, terrorist organizations.

More Action in Somalia

2009-09-15T06:50:00.000-07:00

U.S. Special Forces soldiers killed a top Al Qaeda lieutenant in Somalia on Monday. The AQ leader was Saleh Ali Saleh Nabhan who was behind the 2002 bombing of an Israeli hotel in Kenya, an unsuccessful attempt to shoot down a commercial airliner in Kenya with surface to air missiles, and is suspected to have involvement in the 1998 bombings of the U.S. embassies in Africa. According to reports a team of special forces soldiers in four military helicopters assaulted two vehicles, one of which carried Nabhan, in broad daylight while Nabhan was trying to move from one location to another. The military decided to launch the attack when it did because Nabhan was not in the vicinity of civilians at the time.

This story is evidence of two things. First, that Somalia is becoming increasingly more prevalent in the War on Terror. Maybe it has been prevalent for a long time and it is just now coming to light, but the recent struggles for power over the country and now the killing of a major AQ figure in the country leads me to believe that AQ and its affiliates see an advantage in trying to operate out of Somalia. Second, it seems that the U.S. is also starting to focus on Somalia and maybe attempt to preempt terrorists from grabbing a real foothold in the country. This is a pretty brazen attack given that it is in broad daylight and right in the middle of a sovereign nation. Granted Somalia in its current state is barely a nation, you won't see U.S. military helicopters carrying special forces soldiers fly into the middle of London or Paris to take out a terrorist, but it seems to be a strong sign that we are stepping up our efforts to disrupt AQ in areas other than Pakistan and Afghanistan. I hope that we continue to focus some resources on Somalia because it will pay dividends towards stabilizing that country and making it harder for terrorists to operate there.

U.S. Creates Review System for Detainees at Bagram

2009-09-13T12:56:00.001-07:00

It may not be ideal, but it seems to be a significant step forward. The new process for reviewing the bases of prisoners' detention at Bagram military base in Afghanistan will involve what are being called "Detainee Review Boards." There is an existing system at Bagram that allegedly allows a prisoner to challenge his detention but does not allow for the presentation of evidence or for the prisoner to review the evidence against him. The new system will place a U.S. military official who is not a lawyer with a prisoner. That official will be in charge of representing that prisoner's interests and will be able to call witnesses and present "reasonably available" evidence. Something missing from the Washington Post article is what the standard for continued detention or release will be, but that may not be determined yet. The process will be used to determine which detainees will be released, turned over to Afghan authorities, or held in U.S. custody longer. Those held in U.S. custody will have the basis for their detention reviewed at six month intervals. This six month interval is similar to the system of administrative detention used in Israel.

This is a big step forward. Even human rights groups say this is a significant improvement to the current system. Those groups also say that it is not enough because the detainees still don't have access to legal counsel. I agree that access to legal counsel is a hallmark of fairness, but we aren't dealing with a civilian situation here. When it comes to Gitmo it is much easier to allow for legal counsel because the detainees are held at a military base that isn't in an active theater of war. Bagram is right in the middle of a war torn country where the military is struggling to assert its control. Allowing for legal counsel and traditional legal processes is simply impractical. A full fledged review system similar to the one that exists for Gitmo would use up a great deal of resources, both administrative and security related, in Bagram. The military needs to focus its resources on gaining control of Afghanistan. I like this proposed system. It is not the most protective of detainee rights at Bagram, but I believe it is the most we can do in a practical sense.

British Terrorists Convicted of 2006 Plot

2009-09-07T14:42:00.000-07:00

Remember the scare a few years ago when a they arrested some British guys who they said were going to try to blow up airplanes with liquid explosives? If you don't then let's just say that you have them to thank for getting all but the smallest amount of liquids banned from flights. It's why you have to be sure not to take your brand new $75 bottle of Gucci cologne through airport security lest it end up in the massive collection of various items that TSA employees are undoubtedly amassing. Anyways, the point is that three of the plotters were found guilty of conspiracy to commit murder today in British court.

This story got me thinking about how we've gotten away from thinking about terrorist attacks against America. No doubt life has changed since September 11th with massive reorganization of government, tighter security at airports, arenas, etc., and a general sense that terrorism can be a real threat to this country. While all that has happened I feel like the potential for another massive attack is not something people think about anymore. If the liquid explosive plot would have succeeded completely it would have resulted in the destruction of multiple commercial airlines in mid-air over the Atlantic and left 1500 innocent people dead. That kind of attack would have created panic on an absolutely massive scale, and dealt a struggling airline industry a blow that it might not have recovered from. It's unsettling to think that such a small group can inflict so much damage. Luckily cooperation between U.S. and British intelligence resulted in the discovery of the plot, but it is a reminder of how vulnerable we are. It's easy to get distracted by the wars in Iraq and Aghanistan, and more recently the economic downturn, but that doesn't mean that terrorist groups don 't still mean the U.S. harm. There are still a good number of targets that terrorists can strike with relative ease that they haven't yet. Examples of such targets that come to my mind are so called "soft targets" such as arenas, malls, and various forms of public transportation. These attacks would probably be less dramatic than September 11th, but could be carried out with more frequency. They would also create a different kind of fear than September 11th because they would be aimed more at the basis of people's everyday lives.

I'm not trying to be the voice of doom here because I do think that we are safer now than we were on September 11th. I also think that it is a good thing that we don't live our daily lives in fear of another attack. This story just made me think about how we can lose focus on a real threat in the absence of a recent attack.

Kiyemba II Stay is Denied

2009-08-26T17:12:00.000-07:00

A three judge panel of the D.C. Circuit Court decided not to grant Petitioners a stay in the Kiyemba II case. Again this appeal was seeking the stay of a D.C. Circuit mandate saying that the government did not have to give Petitioners advanced warning before they transferred them out of Guantanamo Bay. The appeal was denied today in a one page order with no explanation on the court's reasoning.

I can only assume that the court's reasoning for issuing this denial is that they are setting up a situation in which the Kiyemba II petitioners can be easily transferred out of Gitmo. This would be important because the Kiyemba II petitioners are the petitioners in Kiyemba which could end up leading to a very significant Supreme Court case which the government and the Supreme Court would like to avoid. I believe that this is the case because the petitioner argument in Kiyemba II was much stronger than the government's and I believe that on that basis their motion should have been granted. I said in my first post on this case that while I was ideologically behind Petitioners I felt that they weren't actually in danger of the government surprising them with a transfer to a hostile country. Since I don't think that it is likely that the petitioners in this case will be treated unfairly and transferred to a hostile country I don't have a huge problem with this ruling.

Al-Adahi Opinion is a Good Look at Gitmo Habeas Cases

2009-08-25T18:16:00.000-07:00

An unclassified version of Judge Kessler's opinion in Al-Adahi was recently released. This opinion is a good comprehensive look at how the D.C. District is handling the Gitmo habeas cases. Here are a few important points:

The court will presume the authenticity of the government's exhibits as long as those exhibits have been maintained in the ordinary chain of custody.
The court will not presume the accuracy of the government's evidence. There are a couple of reasons for this. First, the accuracy of evidence in these cases is "hotly contested" because of the large amounts of multi-level hearsay involved and the danger that evidence was obtained through torture. Second, because there is no jury in habeas hearings, the court must act as the fact finder and determine the reliability and weight of the evidence.
While the court would not give the government's evidence a rebuttable presumption of accuracy it did say that hearsay could be allowed in some circumstances.
Mosaic theory- This is a popular evidentiary theory amongst the intelligence community and government has attempted to get the courts to accept this theory as a way for the government to prove its habeas cases. The theory is based on the idea that the court should look at all the pieces of the government's evidence as a whole and not focus on each individual piece of evidence. You can imagine this as a kaleidoscope in which the design is made up a many smaller pieces that look great together, but are not useful as a single piece. Judge Kessler said that while this theory was good enough for the intelligence community it was not good enough for a judicial proceeding. She said that allowing the government to use this theory would allow it to circumvent it's burden of proving every piece of its evidence.
Despite strong evidence of family ties to Osama Bin Laden, some evidence that Al-Adahi stayed at an Al Qaeda guesthouse, an admission by Al-Adahi that he trained at the Al Farouq training camp, and evidence that he may have been a Bin Laden bodyguard, Judge Kessler found that the government's evidence did not satisfy the question of whether Al-Adahi was a member of the armed forces of Al Qaeda and therefore granted the habeas motion.

This opinion is a great window into a judge's thinking on the Gitmo habeas motions and what standard the government is being held to. This opinion makes it look like the government is going to have a very hard time meeting its burden given the nature of the evidence in many of these cases.

Least Surprising Story of the Year: Blackwater was Part of the CIA Assassination Program

2009-08-20T10:50:00.000-07:00

The New York Times reported today that the CIA contracted with Blackwater to help out in the recently revealed, ultra-secret CIA terrorist assassination program. If you were to tell me that you were surprised to find this out then I would tell you that you've most likely lived under a rock for the past 5 years. If you'll recall, earlier this summer CIA Director Pannetta discovered that the CIA under President Bush created a secret program aimed a tracking and killing high profile terrorists. Pannetta revealed his discovery to Congress creating an immediate outcry about the CIA overstepping its authority.

I don't have a huge moral objection to the CIA tracking and killing terrorists although a strong argument can be made that we should focus on capturing terrorists and bring them to justice rather than just killing them. That being said, I obviously have an objection to the government outsourcing such a program. I'm not even going to attempt to list the legal, moral, and practical problems that arise with farming out killing people. These problems are only amplified when you take into consideration the company that you're contracting with - Blackwater. Blackwater is a company that has a notorious reputation for employing operatives that have little or no regard for the law or human life (an example would be when a group of Blackwater employees slaughtered more than 15 innocent civilians in downtown Baghdad) and, if that low regard is present even when they are not hired specifically to kill people, I cannot imagine what kinds of actions Blackwater would engage in when given the authority to seek out people and kill them. A government engaging in this activity is particularly unsettling. People accept the fact that their government may have to take the lives of others in order to protect their society. Unfortunately that is a necessary evil; however, it is precisely the fact that the taking of life is carried out by those our actual government that makes it acceptable. Contracting out killing to private entities is not something that should be tolerated. Giving that kind of authorization to a private actor can easily create a slippery slope sort of situation where that actor may start acting in its own interest but yet justify it in the name of protecting the country.

Weak Government Response in Kiyemba II

2009-08-19T14:03:00.000-07:00

As promised, the government filed its opposition to the Kiyemba II petitioners' request for a stay of the D.C. Circuit's mandate. SCOTUSblog actually reported on the brief about an hour after I posted my previous Kiyemba II post, but I couldn't turn around and write another post about it so soon after the first. SCOTUSblog is a machine, I am just one man. Cut me some slack. I think the government's response is lackluster at best and occassionally misleading at worst.

A big part of both of these briefs is based on the Supreme Court's decision in Munaf v. Geren which is a case I had not read up to this point. I have read it now and will give a brief rundown here. The Munaf case is about two prisoners that were being held by the U.S. in Iraq. In pertinent part, the two prisoners in that case were seeking to stop the U.S. from releasing them to Iraqi authorities for fear of prosecution and torture. They essentially argued that habeas protections should require the court to enjoin their release to the Iraqi government. The Supreme Court disagreed and said that habeas offered these two no protection in this case. The Munaf decision said two things that I think are important to understanding the arguments in Kiyemba II. First, the Court said that habeas did not apply to the two petitioners in Munaf because they committed crimes in Iraq and were being held in Iraq. The Court said that allowing habeas to protect the two from release would interfere with the Iraqi government's sovereign power to punish crimes in its own land committed by people still being held in Iraq. Second, the Court said that the determination of whether a country is likely to torture or otherwise abuse a prisoner if transferred there is one left to the political branches. This statement was fairly resolute, but there seemed to be some wavering to this point in the concurring opinion in Munaf.

So that is your background for Munaf. The government's opposition brief here in Kiyemba II is fairly straightforward and is based almost exclusively on Munaf. The government's two main arguments here are: 1) the Kiyemba II petitioners are in essentially the same factual situation as the ones in Munaf; and 2) that the torture determination is one to be made the political branches.

As far as Munaf being completely applicable to Kiyemba II because the facts are similar I completely disagree. I agree with Petitioners' argument in Kiyemba II that Munaf was based on a very fact specific determination. The Court's decision in Munaf came back to the fact several times that the petitioners in that case had committed crimes in Iraq and that they were currently being held there. The Court's major consideration in Munaf was not to allow those petitioners to use habeas as a tool to get the U.S. to shelter them from the power of a country in which they were currently being held. In the case of the Kiyemba II petitioners the prisoners are being held in Cuba for no legitimate reason. They ended up in U.S. custody because American authorities wrongly apprehended them because they mistakenly believed they were training to attack the U.S. Their habeas cases have already been decided and they won. They should have been released long ago, but they remain incarcerated for various reasons. Munaf simply does not apply in this sense. If they had committed crimes in Cuba, and had they not already won their habease cases then it would probably apply, but they did not and that is a very important factual distinction.

The second main argument about leaving the torture determination to the political branches is one that the government harps on over and over and over again in this brief. It seems like they cling to it because the language in Munaf seemed particularly clear on that subject. I will agree with the government that the Court in Munaf did say that the likelihood of torture determination should be left to the political branches. However, the government claims that this ruling in Munaf is unambiguous. I disagree with that a little bit because there is language in the concurrence that suggests that judicial review may be appropriate if there is a good deal of evidence that torture is likely and the government is going to go through with the transfer anyway.

In the end the government simply misses the boat in their brief because they don't focus at all on the fact that the petitioners are not trying to avoid release like the ones in Munaf. Petitioners in this case merely want advanced notice before they are released so that they might be able to stop a release that may send them to a hostile country. I think I only saw the word "notice" one time in the government's brief. It pretended like the petitioners were attacking the government's ability to release them at all, but release is exactly what Petitioners want. They desperately want to get out of Gitmo, which courts have already said they have the right to do, but they don't want to be sent to a country that may torture or kill them. The government just doesn't address the fact that notice is what Petitioners are looking for in this case. That fact alone distinguishes Kiyemba II from Munaf. Since the government's entire brief is based on the that alleged similarity that makes that government's brief extremely weak and I think it should make Petitioners' request for a stay likely to be granted.

Dagger: Rick Perry is the Governor of a Major U.S. State

2009-08-17T21:26:00.000-07:00

Governor Rick Perry of Texas exhibited extremely shrewd foreign policy analysis during his recent trip to Israel when he a) compared the problems on the Texas/Mexico border with those between Israel's border with Gaza; and b) stated that Israelis were ordained by God to possess Israel. It's difficult for me to express in words how I feel about these comments. Flabbergasted? Incensed? Bewildered? Nonplussed (look it up)? None of these words fully encompass the emotions stirred up by Rick's insightful and enlightening comments.

Let's just run through some reasons that the Israel/Palestinian problem does not really compare to the Texas/Mexico problem. Perry actually attempted to back up his statement with the fact that only 28 Israelis have been killed by rocket attacks against Israel in the past eight years but over 1,000 people have died in Juarez, Mexico in the past year. I'm not sure which member of Rick's staff dug up this nugget and encouraged him to use it, but they should put a sign around their neck that says "snitch" and leave them in the streets of Juarez. Rick, the modern state of Israel was formed when the world powers after WWII displaced an entire country full of people (the Palestinians) and gave it to another group of people (the Jewish people) after that group was nearly wiped off the face of the earth. Since then the Jewish people have been under a constant state of attack from both the Palestinians, whom they displaced, and the other Arab countries in the region. These attacks have come in the form of all out war as well as constant terrorist attacks aimed at disrupting the way that all Israelis live their every day lives. Israel has not lived in a state of peace since its very inception and it is unlikely that it ever will. I'm not trying to downplay the severity of the problem in Mexico because it is a huge problem and one that puts innocent people at risk, but the drug dealers' goal is to make money not to wipe the state of Texas from the face of the earth.

As far as Rick's firm belief that God ordained that the state of Israel belong to the Jewish people, that is his personal belief and he is entitled to it. Unlike his belief that his border problem is worse than the Israeli/Palestinian one, he is certainly not the only person in the world that believes that God ordained the Jewish people to have Israel. I'll just say that politicians basing their foreign policy on the Bible makes me uncomfortable to very uncomfortable.

It's disturbing to me that I don't even have to touch on the fact that Rick Perry suggested that Texas might want to secede from the Union in order to prove what a complete lunatic he is.

Kiyemba Part Deux

2009-08-17T11:49:00.000-07:00

Some may be thinking that Voodoo has given up on his blog and that I don't have the drive to carry on. A pox on your house if you are one of them. I've been running around all over the Mid-Atlantic/Southeast region of this country for the past three weeks trying to move, vacation, and chill out for awhile. But fear not for I am back and regular blogging should be resuming, and what better way to start it off than with a new Kiyemba post.

Don't get excited because this post is not about the Kiyemba case that I've written so many posts about. Remember, the Supreme Court is still considering that case's cert petition and it will make a decision as to whether it will hear that case as soon as the justices get back from summer camp. That should be some time in late September or October I believe. This post looks at the case being dubbed Kiyemba II. This case deals with a challenge by the Uighur detainees ("Petitioners") asking that they be given advanced notice before the U.S. transfers them out of Gitmo and out of the reach of the U.S. court system. Petitioners' central concern is that they don't want the U.S. government to order a surprise transfer in which they are taken out of Gitmo and sent to another prison outside the reach of U.S. courts or sent back to China where they will almost certainly be tortured and/or executed.

The procedural history of this case is slightly convoluted and took me awhile to figure out, but what is most important to know is that the motion discussed in this post is a motion to stay the mandate of the D.C. Circuit Court during the pendency of Kiyemba II's cert petition to the Supreme Court. The mandate that Petitioners seek to stay says that Gitmo detainees do not have a right to notice before they are transferred even if they fear being tortured or prosecuted by the transferee country.

I'm not going to get deep into the minutiae of this motion because the argument centers around the legal test for staying a court order. I don't think that it is important to get into the esoteric legal details of that argument here; however, it is important to understand what this case is about and what the arguments being made are actually saying. First, as already discussed, Kiyemba II is about Petitioners getting the right to have notice from the government before they are transferred so that they can see where they are going and challenge that transfer if it will take them to a country that will further prosecute, torture, execute, or violate their rights in some other way.

Second, I think that what the arguments are actually saying here is that not allowing for pre-transfer notice to detainees is a huge blow to the habeas rights given to detainees in Boumediene to the point that it may "[render it] hollow." This argument should sound very familiar because it is the central ideological argument in Kiyemba I. In Kiyemba I Petitioners are saying that they are entitled to release from Gitmo to an acceptable country, even if it has to be the U.S., because they won their habeas cases. To not allow them release is anathema to both Boumediene and the constitutional right of habeas itself. Petitioners argue in Kiyemba II that allowing the government to surprise detainees with transfer without any right to analyze the specifics of the transfer and challenge the transfer is another way for the government to potentially skirt the legal process and constitutional protections.

This discussion is fairly superficial and if you want to get acquainted with the specifics of the argument then you should definitely read the motion. There is also a good discussion of it by Lyle Denniston on SCOTUSblog. I just want to say that I agree with Petitioners' argument here. The government should most certainly not be allowed to circumvent the habeas protection promised to detainees by transferring them out of the judiciary's jurisdiction or by transferring them to countries that may very well violate their legal or human rights. That being said I don't believe that the government would try to solve the detainee problem through surprise transfers. The first reason I believe this is that such a move would be a public relations nightmare. The administration would be torn apart in the court of public opinion for trying to do this. Secondly, we've already seen a concerted effort by the government to find suitable countries for relocation. Proof positive of this came in June when four of the Uighur detainees were transferred to Bermuda and it seems like the administration is doing all it can to find suitable transferee nations for those detainees that qualify. I think that if the government were going to try to solve the detainee problem by quick transfers then they would have done it already and not waited until Kiyemba I got so much publicity and made it all the way to the Supreme Court. Finally, I don't think surprise transfers are likely because of the part of the Supplemental Appropriations Act that requires the Executive to give Congress fifteen days notice before a Gitmo detainees is released or transferred. Petitioners in this case recognize that this law is on the books and requires notice, but they argue that the law cuts the courts out of the decision as to whether transfer would be appropriate. While that argument is true I don't believe that Congress would sanction a transfer that was clearly meant to remove a detainee from U.S. court jurisdiction or that was going to send the detainee to a questionable country. Again, the court of public opinion should keep the Executive's and Congress's actions in check in this situation.

A reply brief by the government should be forthcoming and I'll keep you updated on that.

Reports From Inside the Blackwater Camp Just Get Better and Better

2009-08-06T07:13:00.000-07:00

I just saw this article from The Nation that makes some very serious allegations about Blackwater (I refuse to call it Xe which is what they are going by now) and its founder Erik Prince. Two confidential sources inside Blackwater are telling federal authorities that Prince may be complicit in the murder of other federal informants who were passing information to authorities regarding an investigation that was looking at whether or not Blackwater was illegally smuggling weapons into Iraq.

Who knows whether all this is true or not, but I'll tell you that none of this surprises me. Prince has allowed his operatives to perform all kinds of questionable/illegal activity in Iraq, it wouldn't surprise me to find out that Prince was directly involved in illegal activity himself. I do know this, the stories out of Blackwater are starting to sound eerily like that plot of the recent movie "State of Play" which I wrote a post about a couple months ago. More on this as it develops.

h/t to Ned on this one.

Another Ineffective Option for Gitmo

2009-08-02T14:16:00.000-07:00

The Obama administration has come up with a new idea for what to do with the detainees left at Gitmo. Well, it's not really a new idea because it is actually just another option that brings the detainees into the U.S. yet solves none of the real problems the detainee situation poses. The new plan would shut the prison at Guantanamo Bay down and bring the detainees to prisons here in the U.S. The prisons being considered in this case are a maximum security prison in Michigan that is scheduled to close down and the maximum security prison at Fort Leavenworth, Kansas.

This new plan suffers from all the same ailments as options that have already been considered. First of all, there are big public relations/political problems with transferring the prisoners at Gitmo into the United States. The big problem here is the "not in my backyard" argument which says that almost no one, citizens or politicians, want the prisoners anywhere near them. A lot of people are worried about having prisoners that have been branded as terrorists near them, and the politicians are worried the voters of their state or district will blame them if the prisoners end up there. As far as I'm concerned that is a non-issue. When is the last time you heard of prisoners escaping from a maximum security prison? It's extremely rare, and even if it is possible the security at any prison housing the detainees will be extremely high.

The real issues that remain unanswered are legal/constitutional ones. We can move the detainees anywhere we want to, but the fact remains that we don't know what to do with the ones we can't put on trial or transfer to another country. The article reporting on this new plan says that we can take 60 to 80 of the prisoners left at Gitmo to trial. That means that 170 are left that we can't try or transfer. The new plan actually includes a plan for cells in which dangerous terrorists that can't be tried can be held, as well as a plan for "immigration cells" which will hold detainees that the courts have ordered to be freed yet can't be because the U.S. won't release them here and no other countries want them. Those two parts of the plan essentially institutionalize existing constitutionally-questionable problems as if doing so suddenly makes them constitutional.

In the end the fact remains that holding prisoners without trial is unconstitutional. Holding prisoners that have successfully challenged their detention through the habeas corpus process, and whose release has been ordered by a court, is unconstitutional. The fact remains that we are in a tough spot, but we have to do better.

Cheney & Co. Wanted to Deploy the U.S. Military on American Soil

2009-07-25T09:38:00.000-07:00

The Virginia Bar Exam looms, but I'm taking a break from studying to draw your attention to this.

The New York Times reports in this article that the Bush Administration toyed with the idea of using the military to round up terrorists on U.S. soil. Such an action is banned by the Posse Comitatus Act which says that the military cannot be used on U.S. soil to carry out police or law enforcement operations unless expressly authorized by the Constitution or the U.S. Congress. Bush officials considered trying to circumvent this law specifically in the instance of the arrest of the Lackawanna Six which was a terrorist cell located just outside of Buffalo, NY.

In my opinion, this is the most disconcerting idea of an administration that came up with some truly terrible ones. I think that this is worse than the "enhanced interrogation techniques" or the military detention at Guantanamo Bay. It's worse because it shows just how power hungry and out of touch major players in the Bush administration were. I don't defend torture or the detention at Gitmo, if you've read my blog you would know that, but I can see how a misguided sense of patriotism might lead someone to think that the war on terror necessitates taking extreme steps. If you torture people maybe you can get them to talk and you can save lives and avert disaster. If you lock up terrorists indefinitely then you can stop them from carrying out terrorist attacks. Neither of these practices stands on solid legal ground, but you can rationalize them because you can make a logical argument that they are aimed at keeping Americans safe and generally keeping the peace. That logic is completely missing when you talk about using the military to arrest terrorists on U.S. soil. Can you imagine the panic that would ensue if people saw the military rolling down their street? Imagine sitting at home one afternoon watching The Price is Right and you look out of your window and see an Abrams tank parked on your neighbor's yard with a group of soldiers breaking down the door. I can see two obvious arguments as to why this is a terrible idea - one argument is basically ideological and one is practical.

First of all, from an ideological standpoint, that is the kind of thing you would expect to see in some third-world country where the government uses its military to keep control of the people. It's like having a loaded gun pointed at the populus. The government uses the military to keep people in check through fear brought about by the coercive presence of the military. This is the United States. This is supposed to be a place where the people are free of oppression and tyranny. We have a system of laws in place that is meant to stop someone from centralizing too much power and using it to control the country. There is no more powerful thing in this country than the military. In fact, the United States military is the most powerful force on the planet. Allowing it to be deployed domestically would tip the scales of power dramatically towards whoever controlled it.

Secondly, from a practical standpoint, if your goal is to keep Americans safe and allow them to carry on with their daily lives, sending the military out into the streets is not the way to do it. That is what the police and federal law enforcement agencies are for. Americans are under the belief that domestic law enforcement agencies are capable of keeping us safe here at home. The message that would be sent in sending the military out to perform the work of police forces is that the problem has gotten so out of hand that those forces that have protected here at home for so long are no longer capable of protecting Americans. That kind of message doesn't comfort people, but rather makes them scared and hyper-paranoid.

Some of you may be able to guess the officials that supported this plan. It's the usual suspects that were behind all of Bush's worst ideas: Dick Cheney, John Yoo, and David Addington. There were others as well, but these seem to be the most vocal of the group. There's absolutely no explanation for this idea other than their penchant to raise the stakes in every situation and try to squeeze every drop of power possible from the leeway the American people gave to the federal government after September 11th. The justification for the plan was that arresting terrorists on American soil was a national security action, not a police action, and therefore it would not be barred by the Posse Comitatus Act. That is just absolutely absurd, but even if that justification were true, why would you do it? Local and federal police authorities are perfectly well equipped to arrest terrorists. They've done it many times, and never once has someone said "Man, we really should have brought the military in on this one." These terrorists in America try to blend in to the community. They try to live just like all of us, in houses or apartments. They don't construct heavily fortified structures that we need military level strength to penetrate. Sending in the military is a complete overreaction. The thought of using soldiers to apprehend terrorists here would almost be a laughable overreaction if the precedent it would have set wasn't so terrifying. It seems like the creators of this idea simply wanted to do it just because they thought they could. They can't have thought about how extreme the consequences would be. The lengths to which these people thought they were justified in going is disturbing, luckily more level heads such as Condoleeza Rice and John Bellinger prevailed, but I shudder to think what would have happened if they didn't.

H to the Izzo - Jay-Z as a Paradigm for International Relations?

2009-07-14T14:52:00.001-07:00

Music, clothes, vodka. You knew it was only a matter of time until Hov got into international relations. This is just an awesome piece.

Also, I would like to officially welcome The Game back to the headlines even if it is in the form of a blog post on Foreign Policy. Take what you can get Game.

I Knew It

2009-07-14T07:28:00.000-07:00

The CIA secret program everyone has been talking about was revealed to be a program designed to use assassins to take out Bin Laden and other top Al Qaeda leadership. Voodoo told you in his last post that he had a feeling it was a Jason Bourne-esque assassination program (this one appears to be minus the mind control). I'm good. To be honest you probably don't have to be a genius to guess that a super-secret CIA program will involve assassination. I still got it right though.

The Bourne Reality?

2009-07-12T06:48:00.000-07:00

When I read about this ultra-secret CIA program that everyone is talking about I can't help but think of Jason Bourne. To be clear, I have no evidence, nor am I trying to say in anyway, that the Agency was engaged in a program where it used mind control to turn people into unstoppable assassing, but I can't get images of this out of my head.

The Government Will Launch an Investigation Into Some Torture Allegations

2009-07-12T06:28:00.000-07:00

Attorney General Eric Holder announced yesterday that he will appoint a prosecutor to investigate allegations that some government employees may have tortured terrorism suspect even beyond the scope of authority given to them in the now infamous torture memos. President Obama has stated that he will not seek to prosecute the Bush administration officials who wrote the memos or those employees who acted in the good faith belief that those memos authorized them to use tactics that have since been determined to be torture. This investigation is different because it will target investigators that engaged in activities that were outside the bounds of any kind of authority.

Al Qaeda in Africa

2009-07-09T12:55:00.000-07:00

It's bar exam crunch time right now so I apologize for not posting very much. Just saw this New York Times article about increased Al Qaeda activity in North Africa. In the recent weeks attacks against Westerners and local residents have increased in Algeria, Mauritania, and Mali. The article says that the groups there are less ideologically motivated than they are economically motivated, but that doesn't seem to stem the severity of the attacks.

No matter what motivates them, I think Africa is the logical place for AQ to move to. As I've said in past posts, it is already happening in Somalia. The elements that make Somalia an ideal place for AQ to grab a foothold are present in numerous other African nations like the ones named in this article.

In other news, there have been a couple of developments on the legal front of national security, but I get my fill of legal content every day so it's hard to summon the motivation to read more of it. I will try to post something about them soon.

Glenn Beck and Michael Scheuer Have a Chat... Insanity Ensues

2009-07-02T13:46:00.000-07:00

Even when I don't have time to ridicule Glenn's show he still finds a way to get on to this blog. There is one key difference in this post and the other Glenn-based posts, and that difference is that Glenn is not the craziest person involved this time. Extremism is supplied to us in this instance by former CIA analyst Michael Scheuer. For those of you unfamiliar with Scheuer he was in charge of a CIA program dedicated to tracking Osama Bin Laden ("OBL") called "Alec Station." He has since left the Agency, but he remains vocal (understatement) about national security matters. In this interview with Glenn he says that the only chance this country has is for OBL to successfully use a weapon of mass destruction against the United States. He then goes on to insinuate that the U.S. has not used the necessary amount of violence to protect itself since 9/11.

If these statements strike you as odd you are not alone. Voodoo is with you on that one my friend. For starters I find it odd that a WMD attack will make this country more safe. For some crazy reason I feel that it would make the country less safe. For example, New York City, as it exists now, would be a lovely and relatively safe place for a visit this summer. I encourage you to take your family there. On the other hand if terrorists detonated a nuclear weapon in Manhattan tomorrow your choice of vacation spot would be slightly less picturesque and safe as there would be possibly millions of dead bodies there, and the resulting nuclear fallout would render the city uninhabitable for the next 20 years. Under these circumstances I would not recommend you take your family there. Based on these facts I will put my reputation on the line and say that NYC, and the U.S. as a whole, is definitely safer now than it would be in the event of a WMD attack. I will also respectfully disagree with the implication that the U.S. has not used the requisite amount of violence to protect itself. Some might even say we've used too much seeing as how we've started wars in two different countries (three if you count the move to Pakistan) that have resulted in the deaths of thousands of soldiers, terrorists, and civilians. We also tortured a bunch of people.

In conclusion: 1) We are safer in the absence of a WMD attack; and 2) Starting two wars and torturing people is, at the very least, a reasonable reaction to terrorism. These are just my thoughts of course. Voodoo encourages debate so if you feel that Scheuer is the only voice of reason left in this crazy, pansy-ass country let me know.

Oh and of course, welcome back Glenn.

Hey North Korea! Chill Out Bro.

2009-06-30T13:59:00.000-07:00

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

2009-06-29T20:59:00.000-07:00

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?

2009-06-26T18:59:00.000-07:00

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,

2009-06-25T14:33:00.001-07:00

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?

2009-06-22T20:28:00.000-07:00

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

2009-06-20T14:25:00.001-07:00

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

2009-06-18T10:29:00.000-07:00

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

2009-06-17T13:54:00.000-07:00

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

2009-06-15T14:14:00.000-07:00

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

2009-06-14T18:57:00.000-07:00

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?

2009-06-12T23:29:00.000-07:00

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

2009-06-11T12:23:00.000-07:00

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

2009-06-09T21:11:00.000-07:00

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

2009-06-09T18:06:00.000-07:00

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

2009-06-09T13:02:00.000-07:00

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"

2009-06-05T13:55:00.000-07:00

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?

2009-06-03T19:36:00.000-07:00

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.

Kiyemba Kraziness Kont'd

2009-05-30T09:12:00.000-07:00

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

2009-05-22T15:51:00.000-07:00

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?

2009-05-20T16:25:00.000-07:00

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

2009-05-16T09:10:00.000-07:00

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

2009-05-15T12:48:00.000-07:00

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

2009-05-15T10:43:00.000-07:00

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

2009-05-15T06:51:00.000-07:00

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

2009-05-14T12:51:00.000-07:00

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?

2009-05-04T13:44:00.000-07:00

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

2009-05-02T14:23:00.000-07:00

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.

Beck to the Future (4/30/09)

2009-04-30T13:31:00.000-07:00

Response to the last "Beck to the Future" installment was at an all time high. This makes me happy, but come on when you have Glenn Beck + stealing baby blood + Glenn threatening to light his guest's grandmother on fire, you've got a sure fire recipe for success. I just pray that Glenn and I don't let you guys down this week.

5:00 - I'm watching Glenn in HD today. It's a life altering experience. Glenn is wearing jeans again. Come on Glenn. He's decided that denim is just his color. You go Glenn.

5:01 - Glenn is doing his "Hot List". This is a list of headlines from the day that Glenn runs through in approximately 47 seconds. It's the only thing on this show that even approaches actual information. This is precisely why he rushes through it.

5:04 - Glenn says that consumer spending being up is not a good sign for the economy. He's upset that people are spending money? I imagine Glenn is upset about this because he's already spent all his money buying supplies in an attempt to stock up for the apocalypse.

5:06 - Glenn is in the midst of comparing the problems in the economy to a cold and that we need to let the cold run its course without trying to fix it. Another brilliant idea from Glenn Beck. If it's broke don't fix it. Do me a favor Glenn, if you start experience flu-like symptoms, just let it run its course.

5:13 - Glenn welcomes another guest (he had a guest before, but she was lame and did not make the cut for the blog) his name is Yaron Brook. The name is pronounced Yawon Bwook... no wait... this guy just has a huge lisp... it is actually pronounced the normal way. This guy works at the Ayn Rand center, which means he has probably been arrested multiple times for trying to burn down U.S. government buildings. I imagine Glenn probably has a similar rap sheet.

5:14 - Glenn is telling us about freedom. Glenn and this dude say that freedom means not having a government at all. I can't take this guy seriously because he has such a huge lisp. He keeps saying the word "Chrysler" which is a problem because it comes out "Cwysler." Let's wap it up Yawon.

5:17 - Yawon just said that notions of altruism and collectivism have infected this country. Glenn agrees. Yes. Helping people out and working together is the ideological equivalent of swine flu that is slowly killing this country. The auditory equivalent of swine flu is listening to Glenn and Yawon attempt to tell me how the world should be.

5:21 - Okay we are in a commercial break, but I have to tell you about the Fox News commercial that was just on. They just said a special story on a later program would be Glenn Beck telling us what he is doing with his money. I imagine the plan is incredibly simple: Step 1) get knife; Step 2) cut open your mattress; Step 3) shove all your money in it.

5:24 - We're back. Another flippin guest. Good lord. This time it is David Baldacci who is an author of a series of national security/spy/terrorism novels. Glenn says that if you go to anyone's house you will see Baldacci's books on their bookshelf. Ummmm... don't think so Glenn. I can think of about 1,000 people I know that do not have one book by this guy. I'm sure that Glenn's bookshelf (read: the top of Glenn's toilet) is filled with them though because he picks them up beside the register at the grocery store while buying more supplies for the apocalypse.

5:28 - Commercial break. Next we will talk about swine flu and how it is destroying Mexico's economy. I have no doubt that Glenn hates swine and Mexico and hopes that the flu wipes out both.

5:33 - Let me tell you what is happening on the screen right now. Glenn is promoting his comedy tour. He has a video clip of the standup in which he is wearing an NRA t-shirt and cargo pants. Beside the video box is the famous "Unite or Die" cartoon with the snake in different several pieces. I have no doubt that what I'm seeing right now is infinitely more humorous than Glenn's standup.

5:35 - Glenn welcomes a new guest. He is "streaming" video of this guy from Cancun (WOOOOOOOOOO!!! SPRING BREAK!!!) who is talking about swine flu. When I say streaming you can barely see this dude's face. It looks and sounds like he is speaking to us from the future. Glenn asked him why he doesn't have a mask on and the guy says he doesn't think he needs it. Prognosis for his health: bleak.

5:42 - ANOTHER GUEST. Props to the people that set up these interviews for A) finding so many and B) making sure they are crazy enough to be on the show. This dude's name is Mike and he is the commissioner of Warren County, Ohio. This county returned over $300,000 of stimulus money (read: the people of this county now live in abject poverty). Both Glenn and Mike pay little attention to this and focus more on the fact that a trillion dollars stretches 68,000 miles into the air.

5:44 - How did this county end up with this stimulus money in the first place if Mike hates it so much? He tells us it is apparently because people in his office applied for it without his knowledge. These people have all disappeared under mysterious circumstances.

5:45 - Glenn likes Mike and keeps saying it is because he is a "regular guy." I believe that Mike finds this incredibly insulting.

5:46 - Guess what Glenn is talking about right now? If you didn't say Tea Parties then you are a moron. It's been 3 weeks since the Tea Parties and he's still talking about it. I think I just experienced a mild stroke.

5:49 - We are in another commercial break, but I gotta tell you about the infomercial that is on right now. It is for a device called the Slap Chop that goes to work on food. This guy just cut up some berries with it and made a delicious looking fruit salad.

5:50 - Glenn's back and he's still got Mike with him. MIIIIIIIIIIIKKKKKEEEE!!!! I don't know why I'm so excited to see him. I think it's just because he's such a "regular guy."

5:52 - Mike just said that he is a Libertarian. I'm sorry I just have an incredibly hard time reconciling anything that Mike says with the fact that he literally runs a governmental entity. I don't know if anyone has seen the show Parks and Recreation, but there is a character on there who is a Libertarian and runs a governmental office. The show makes fun of the irony of this. Mike is flesh and blood representation of this irony. Congrats Mike. You are famous.

5:57 - Glenn just said that his show doesn't have a theme. Uhhhhhhh.... disagree. Tea Parties, Glenn. The theme of your show is Tea Parties.

5:58 - He wants us to arm ourselves with knowledge. He sends a message to parents. If your kids are struggling then let them fail and they will be stronger. Or they will die. Either way you get to turn your head so that's a bonus.

Things to take away from today's show: 1) Mike has no idea what a Libertarian is; 2) The theme of Glenn's show is Tea Parties; 3) BUY A SLAP CHOP.

As Shakespeare Said: "A Gitmo by Any Other Name..."

2009-04-30T11:32:00.000-07:00

Secretary of Defense Gates said today that we may bring 100 detainees from Gitmo and hold them in the United States after the prison is closed at the end of the year. Gates said that they may need to spend $50 million to build a new prison block for the detainees.

My frustration level at this situation is reaching an all time high. The closing of the prison at Guantanamo Bay is largely a symbolic step. For years the detainees held there were given no rights and were subjected to harsh treatment and interrogation. However, I think that we've cracked down on the harsh treatment and even some constitutional rights in the form of habeas corpus were extended to the detainees in Boumediene because the decision said that the prison there is effectively under the control of the United States. I think that if we kept Gitmo open that we would see even more constitutional rights extended to the prisoners there. But I digress. The point I'm trying to make here is that moving the remaining detainees from Gitmo to the U.S. solves nothing at this point. The problems now lie with what we are supposed to do with these guys not where they are held. The 100 prisoners that may be moved into the U.S. are going to be those prisoners that we can't try here and can't find another country which we can send them to so why move them at all. This means that these detainees may successfully challenge their detention through habeas corpus and secure their right to release from prison, but we can't actually grant them release. So we've extended them a constitutional right to challenge their detention, but cannot honor their constitutional right to release after a successful challenge. Their right to habeas is basically pointless. That is what we need to be concerned with.

Other than the fact that Obama ordered the prison to be closed within a year of the order there is no difference in them being held at Gitmo and them being held here in the United States. They have no chance of being released from either one of them so why spend money moving them and possibly spend millions more building a new cell block to hold them. Tell you what Secretary Gates, you can hold all them in my basement as long as you pay my mortgage. That should save you some money and will work to achieve the same goal of physically moving the detainees from detention in Cuba to detention in the continental U.S. You should use the millions you save to pay off other countries to take the detainees.

The frustrating part is that we've got no one to blame but ourselves for this mess. I'll try to sum up how we ended up in this mess in one long run on sentence. We run around willy-nilly capturing every guy we think looks like a terrorist, throw them into Gitmo, rough them up, tag them as "enemy combatants" in the war on terror, by doing this we permanently brand these guys as terrorists, we realize we went way too far, shut the whole operation down, and now we are left with a bunch of guys who may very well not be terrorists but whom no one wants (including us) because they have been permanently branded as terrorists by our actions. Great. How about we stop talking about where we are going to house these guys and start talking about how we are going to release them?

(State) Secrets Don't Make Friends

2009-04-29T11:29:00.000-07:00

Mohamed v. Jeppesen Dataplan, Inc.

This decision by the Ninth Circuit concerns the state secrets doctrine. This doctrine allows the government to have evidence that amounts state secrets kept out of a trial or even to have an entire law suit dismissed because it is predicated on state secrets. The case here involves a civil suit brought against a private government contractor who aided the CIA in their "extraordinary rendition program." The suit is brought by several people who claim to be victims of extraordinary rendition. Remember that the CIA's rendition program involved taking suspected terrorists and flying them to various foreign countries (in this case Morocco and Egypt) where those suspects could be subjected to harsh imprisonment and interrogation. The government intervened in this case on behalf of the defendant to argue that the state secrets doctrine should put a stop to this suit.

In short, the court's opinion here says that the Reynolds evidentiary rule applies to this case and not the Totten complete bar rule. The plaintiffs argued that the Totten rule should bar this case because it involves a secret agreement between Jeppesen and the federal government. The court did not buy this and said that the rule is that a case is barred under Totten if it involves an agreement between the plaintiffs in the case and the government. Here the plaintiffs are not the ones with the agreement with the government, the defendants are, thus the court did not apply Totten.

The Reynolds rule says that evidence cannot be admitted in a case if that evidence rises to the level of a state secret. The court says here that the Reynolds rule is preferable to Totten because it fits more nicely with the notion of separation of powers and doesn't allow the executive branch to cut out the judicial branch all together in the state secrets arena. Basically, the court decides here that Reynolds bars the discovery of state secret evidence, but does not bar the litigation of the underlying facts. Therefore, as long as a party can prove the underlying facts through information that is not deemed to be a state secret then they can proceed with their case. Reynolds will only act to bar a case completely if information that is deemed to be a state secret is essential to the plaintiff establishing its prima facie case or is essential for the defendant to raise a necessary defense. I gather from this opinion that any information that might be deemed a state secret will be given to the judge for an in camera review so that he can determine whether or not to allow it.

Since this appeal was one of a 12(b)(6) motion the court did not have to determine whether any evidence was a state secret because no evidence has been discovered in the case yet. The court here remanded the case to the district court to allow it to move on. For a more detailed and informational explanation of the case check out SCOTUSblog's post.

Forecast for NYC Yesterday: Mostly Sunny With a High Chance of Insensitivity, Poor Communication, and Outright Panic

2009-04-28T12:32:00.000-07:00

Remember how I said that the Navy SEALs killing those pirates was the most awesome story of the year so far? Well, the story of Air Force One flying over New York City yesterday is giving the snipers a run for their money. When I say awesome here I mean that I am in complete awe of how stupid this idea was. Let's recap what went on. People sitting at work in buildings in lower Manhattan and Jersey City saw a large commercial plane flying very low near the buildings in the area being shadowed by two F-16's. Understandably, these poor people (some of whom survived the 9/11 attacks) raced out of their buildings to avoid disaster. A little while after these mass evacuations they came to find out that what they saw was a back-up Air Force One flying around the area for a photo-op.

Ummmmmm.... I'm sorry, what? Oh you were just flying a large commercial looking airplane with fighter jet escort low over the site of the 9/11 attacks for a photo shoot. Man, that is a relief. I can't believe that I overreacted and ran screaming from my office building thinking that it would be the target of this enormous, jet fuel laden, guided missile. How silly of me. Please forgive me for bothering you with questions about this.

Come on man. I mean I saw this story yesterday and I thought it was a little bit stupid that they would fly Air Force One around NYC, but I didn't give it a lot of thought. Then I actually sat down and read the reports of this story and became completely nonplussed (I've linked to the definition of this word because most people don't know what it means and it is my goal in life to educate them) bordering on enraged. A report from the Goldman Sachs tower in New Jersey said that the aircraft's wing can with in a few dozen feet of the tower with the fighters flying right behind it. Some in another building reported that the plane caused the glass in the building to shiver and made it seem like the building was going to come down. People were reported to be out in the streets crying and shaking from the fear. I mean it sounds like this picture taking expedition caused complete chaos in a city that has been through enough already.

The absolute best part of this is to listen to the clowns who authorized this little jaunt try to downplay it. Louis E. Caldera, who is the director of the White House Military Office, is the person who authorized the event. He said that he was sorry for the distress that it caused to the people of the city. Thanks Lou. Your apology means alot to me while I recover in the hospital from the mild heart attack this little stunt caused me. The FAA apparently notified NY and NJ police, federal park police, and 911 operators about what was happening but told them not to talk to the public about it and that anyone that had questions about it should contact the FAA Air Traffic Security Coordinator. Oh so all I had to do was just hit #6 on my speed dial which is set to call my local Air Traffic Security Coordinator. Got it. Check. I mean, seriously?! When I see a low flying 747 over NYC my first reaction should be to calmly get my phone out and give my Air Traffic Security Coordinator a jingle? Here's how I see that conversation going:

Me: Uhhhhh... Hey, Barney? (Barney is what I envision the Air Traffic Security Coordinator's name to be) Yeah it's Matt, you got a minute?

Barney: Sure, Matt. What's up?

Me: Well I'm not trying to be a worry-wart or anything, but uhhhhhh... there is a 747 flying real low around Manhattan being tailed by a couple of F-16 fighters. Just wondering if you had a minute to talk about that?

Barney: Absolutely Matt. You want to meet at Starbucks in say ohhhhhhh... 15 minutes?

Me: Sounds good Barney. I should probably get out of this building anyway just in case we are under attack. See you then.

Barney: Hahaha. Alright Matt, see you in a little bit.

Calling up the FAA to find out whether what you are seeing is another catastrophic terrorist attack or a just the federal government trying out their new sweet digital camera they got is the most absurd thing I've ever heard in my life. If I were one of the people in those buildings my reaction would have been exactly the same as theirs. Let's get the HELL out of here. Also, another person who I thought showed an abnormal amount of insensitivity was White House Press Secretary Robert Gibbs. When asked whether he had heard about the flyover part of his answer was, "You might be surprised to know that I don't know every movement of Air Force One." Oh gosh, SORRY MR. GIBBS. Don't let me ask you too many questions about the government that you represent authorizing what appears to be a reenactment of one of the most devastating attacks on American soil. I can't help but think that the negative public reaction from the Air Force One flyover may have stopped another photo-op in which we were going to fly hundreds of Japanese Zeros over Pearl Harbor.

I literally can't fathom the break down of the decision making process in the federal government on this one to get a PICTURE. You want to know what would have been easier. Photoshop. With all the resources at the hands of the federal government I think we could have created a pretty amazing photoshop picture of Air Force One flying over NYC. It took my friend less than ten minutes to make this picture which I would consider to be pretty damn convincing if I didn't already know it was photoshopped:

I think that if my friend can make this image in less than 10 minutes while studying for his law school exams then some computer genius at the NSA can take a few minutes out from eavesdropping on my phone calls and conjure up a suitable picture.

This post is of course written to be funny, but I also think this is very serious. I write in the first person in parts here, but I don't live in NYC and wasn't there during 9/11 and I don't mean to make light of it. I only write this to draw attention to how incredibly stupid this is, and to express my anger at the people that are responsible. There is almost no way that no one recognized what a bad idea this was from the very start. If they wanted to do this they should have had to go around to every single person that lives in NYC and northern New Jersey and tell them personally what they planned on doing. That's not what they did though. Instead they put a lid on the whole thing and didn't allow the people that knew what was going to happen to say anything about it to everyone else. The people in that area deserve better. In the end, the same federal government that is supposed to protect us from terrorists instilled a similar kind of terror into the citizens of NYC and NJ yesterday, and that makes me skeptical as to their ability to deal with a real terrorist attack.

Gherebi v. Obama: D.C. District Shows "Substantial Support" for Obama's New Detention Standard

2009-04-27T15:15:00.000-07:00

It's law school exam time so I've been a little bit slow in posting this, but this is an important decision because it begins to flesh out Obama's new detention standard. In short the decision by Judge Walton adopts Obama's new "substantial support" standard, defines what constitutes membership in al Qaeda or the Taliban is, and finds that the Authorization for Use of Military Force ("AUMF") does not derive from domestic criminal law.

The court's initial analysis focused on the independence of the AUMF. A couple of the petitioners in this case argued that the AUMF had to derive from domestic law since the war on terror (al Qaeda and the Taliban specifically) was not an international armed conflict, and therefore those captured in the war on terror could not be subject to military detention and had to be detained in the civilian criminal system. The decision rejects all of the arguments for AUMF as domestic law and says that the AUMF specifically authorized the President to use all "necessary and proper" authority to carry out the war on terror. It reasons that the fact that Common Article 3 of the Geneva Conventions (the part of the GCs that govern non-international armed conflict) is silent on detention in non-international armed conflict leaves detention procedures up to the nation. Furthermore, all parts of the Geneva Conventions merely act as constraints on the state that require them to detain prisoners rather than summarily executing them. Since the Geneva Conventions are just restraints and not authorizations, the authorization of detention is up to individual states.

The petitioners next argument was that members of al Qaeda or the Taliban cannot be held as enemy combatants because they are not members of an organized armed force. The court actually agrees with the petitioners on this saying that members of al Qaeda and the Taliban are not directly participating with an organized armed force. The court then recognizes that the Obama administration is no longer claiming to detain prisoners in the war on terror as "enemy combatants". The decision says that while members of al Qaeda or the Taliban are not combatants they are not civilians even when they are not directly participating in hostilities, therefore the President can detain anyone who is a member of an organization he determines carried out the 9/11 attacks (al Qaeda and the Taliban as laid out by the AUMF). Membership is determined by someone having a "structured role" in the "hierarchy" of al Qaeda or the Taliban. It's very important to note here that the court found that sympathizers, propogandists, or financiers cannot be considered members under this reasoning and therefore are not subject to military detention unless they directly participate in attacks. Others who cannot be militarily detained using the reasoning above are doctors, clerics, or those that merely shelter al Qaeda or Taliban members. In the end the court upholds the new "substantial support" standard proposed by the Obama administration, but refused to set a bright-line framework for determining what substantial support means deciding that a case by case analysis will be necessary.

I like this decision for a couple of reasons. First, it finally gives us some judicial lens with which to view the new detention standard. I was curious to see how courts would distinguish the new "substantial support" from the old standard of any ol' kind of support and here we get a glimpse as to how it might be different. Second, and more specifically, I like that the court recognizes the war on terror as a non-international armed conflict because I never thought that the war on terror was a full fledged armed conflict. Furthermore, I think that distinguishing the members of al Qaeda and the Taliban as something less than combatants but more than civilians is the right way to go.

I don't think that all parts of this opinion will stay the same through the appeals process. I think that the part of the opinion most likely to get changed is the argument that Common Article 3's lack of authorization for detention actually authorizes each individual nation to implement its own detention procedures. I'm always wary of an argument that derives its support from the lack of law's specificity. Other than that argument, pure gut feeling tells me that the D.C. Circuit will uphold this decision in its entirety and any changes that come could expand the government's powers a little bit. Supreme Court review is likely I think, but it is hard to say how that would turn out because by the time this gets to the Court the bench may be different. I think that if the Court were to review this case as it is composed today that we might see more specificity as to what "substantial support" means.

Beck to the Future (4/24/09)

2009-04-24T13:42:00.000-07:00

Let's get him out here people! I'll get the chant going. Glenn, Glenn, Glenn, Glenn, Glenn, Glenn! WOOOOOOOOOOOOOO!!! There he is!!

5:00 - Glenn. Sweet green tie. No jeans today. He just told us not to become a slave to the government. Glenn, you've been reading the 13th Amendment. Good for you.

5:01 - Uh oh. Glenn is talking about Al Gore and global warming. I think I can see a vein about to pop out of his forehead. I believe this is partly from his anger at Al/global warming, and part from him trying to understand anything that Al Gore says.

5:03 - Apparently 4 million babies are being DNA tested every year and their blood is being kept at government and private labs. Glenn pretends to hate this, but I'm pretty sure that he is hoarding these babies' blood to create an army of tiny little Glenn clone babies.

5:08 - Glenn welcomes a woman, her name is Twila, and a Minnesota state legislator, Tom, who are absolutely opposed to stealing baby blood. This belief seems like something I could get behind, but I'm sure the insanity of the ensuing conversation will turn me against these people and in favor of stealing blood from babies.

5:09 - Tom just invoked this "little thing called the Constitution" (wait, what is that?) that is being violated by stealing baby blood. Tom thinks that with our medical technology that people may be using this baby blood to clone people. This statement marks Tom as a person that is at least as crazy as Glenn if not more. Glenn says he doesn't think that they will use the blood to clone. Don't be fooled Tom, Glenn is trying to hide the ball on his baby army. The first mission for the baby army will be to kill you Tom. Constant vigilance.

5:13 - Alright get ready for a Beck to the Future first. I agree with Glenn. I think that Glenn and I find common ground on not wanting people to steal baby blood. If the next segment is about anti-puppy killing we will really be on a roll.

5:16 - Nooooooooope. Next thing Glenn talks about is the Tea Parties. It's been 8 days since my last post, and Glenn is still talking about the g##!d*%$! Tea Parties, and the "real people" (read: tax criminals and secessionists) that were there.

5:17 - Commercial break.

5:20 - We're back. Glenn says it is not too late for Obama to turn things around. I'd say he's right. Obama has been president for less than 4 months. Barack, don't let Glenn rush you.

5:21 - GOOD GOD!! Glenn said the next video is going to "make blood shoot right out of your eyes". Uhhhhh... I'm gonna change the channel.

5:22 - Glenn welcomes a UCLA co-ed (read: eye candy) to his show to talk about how Planned Parenthood perpetuates manipulations of young women. Her name is Lila. Lila tells me that the video I'm about to see will shock me. I'll be the judge of that Lila.

5:27 - Glenn just played a clip of Hillary Clinton talking about the founder of Planned Parenthood, Margaret Sanger. Clinton says she admires Sanger and that is all. The caption below says "Clinton compares Sanger to Thomas Jefferson". Clinton says nothing about this. Recall that last week Glenn compared himself to Martin Luther King Jr.

5:28 - Commercial break. When we come back Glenn will be talking about waterboarding. Taking bets on whether Glenn actually waterboards the poor bastard that got the "gas" poured on him a couple weeks ago.

5:32 - Hello Glenn. Glenn senses the government is spiraling out of control. He knows this because his sanity is in a similar condition.

5:33 - Oh no. He's talking about Nancy Pelosi. He welcomes a lawyer named Jay who says that Pelosi knew about waterboarding a long time ago. This guy's tie is so shiny that there is no doubt in my mind that it is made of metal. I kind of agree with these guys that Pelosi is probably lying. I don't trust her farther than I can throw her.

5:34 - They say that the CIA told members of Congress, including Pelosi, that they were going to use waterboarding and no one objected. In an attempt to help his viewers and his guest understand how he feels Glenn compares Pelosi finding out about waterboarding and doing nothing about it to a situation where he called Jay and told him that he was going to go to Jay's grandma's house and maybe light her on fire and Jay doing nothing about it. Ummmm, Jay, you need to go to your grandma's house immediately after this and keep a weather eye on her. I need not remind you that Glenn attempted to light one of his employees on fire a couple weeks ago on national tv.

5:36 - Glenn uses the analogy of lighting Jay's grandma on fire again. Seriously, Jay, go ahead and end the interview now and go to grandma's house. Lock the doors.

5:38 - Good lord, these guys are saying that we should torture terrorists because they torture people. Great idea Glenn. I'm pretty sure that Martin Luther King, your historical equivalent, promoted such a policy.

5:42 - Back from commercial break. Still talking about Nancy Pelosi. I mean these guys are desperate to pin the blame on Nancy Pelosi.

5:44 - Glenn's guest just said that he knows the lawyers in the Bush administration and that they are the best and the brightest. I agree with you my friend. You know who else was the best and the brightest - Lord Voldemort.

5:45 - Glenn says goodbye to Jay. Thanks for coming out buddy. Take care of that metal tie.

5:49 - Back from commercial. Glenn is talking about the new amendment to the Hate Crimes bill. Glenn says he doesn't understand hate crimes because he feels that any crime he commits will be against someone he hates (read: Jay's grandma). Am I alone in understanding what a hate crime is? Glenn says to call him a "simpleton" if we think it's silly that he doesn't understand the difference. I think I will Glenn. Simpleton.

5:50 - His new guest says that she thinks Glenn understands the Hate Crimes bill very well. All this does is prove that she has no idea what a hate crime is either.

5:54 - Glenn thinks that we should have every class of people listed under classes in the Hate Crimes bill. Yes. Let's add wealthy white males like Glenn to the hate crimes list because they are often chained to the back of a car and dragged to death because they are male, white, and wealthy. I'm not sure if the mentally handicapped are on the Hate Crimes bill, but if so then Glenn is protected.

5:59 - Glenn says that if we want smaller government then people must be responsible for themselves. We can only trust responsible, well-centered people to govern themselves without government. If the human race were that evolved at this point Darwinism would have seen to it that Glenn Beck would not exist.

There it is. Another successful show Glenn. Congratulations. I gotta decide whether to go to the hospital and stop those bastards from stealing baby's blood or go to Jay's grandma's house and make sure that she is alright. Probably gonna go with grandma's house because I'm in the mood for a Werther's Original. Wait... what's that. Dear lord it's the defeaning sound of the sound of Glenn's baby army marching in unison down my street. THEY'RE ON TO ME!!!!

State of Play

2009-04-22T16:32:00.000-07:00

Alright, I'm not turning this blog into pop culture commentary, but I have to talk about the new movie State of Play. First, this is a great movie. It keeps you interested from minute one. Secondly, one of the players in the movie is a fictitious private security contractor, PointCorp, and the allusions to the real world private security contracter Blackwater are shameless. You should know that I've been very interested in Blackwater's shennanigan for the past few years so I was a little predisposed to notice these things. Here is a list of similarities:

1) The PointCorp logo is a target around an eagle, similar to Blackwater's target around a bear paw.

2) PointCorp's CEO's first name was Erik, similar to Blackwater's founder Erik Prince.

3) PointCorp owned a 60,000 acre facility in northeastern North Carolina, similar to Blackwater's enormous compound in Moyock, NC.

4) PointCorp was hired to conduct operations in post-Katrina New Orleans just like Blackwater.

There may be more similarities, but these were the ones that jumped out at me. I just thought it was very interesting the lengths they went to to make PointCorp just like Blackwater. In summary, go see the movie.

News Recap (4/21/09): Torturers and Smiling Pirates

2009-04-21T14:57:00.000-07:00

Torture investigations- Obama said today that he is not ruling out investigations and possible prosecutions of Bush administration officials that legally authorized CIA enhanced interrogation techniques. While the lawyers that authorized the actions (notably Jay Bybee, Stephen Bradbury and John Yoo) will be vulnerable to prosecution President Obama said that CIA officials who carried out the interrogations based on the legal authorization from the lawyers will not be investigated. The decision on whether to prosecute or not will be left up to Attorney General Eric Holder.

As angry as it makes me that these lawyers did everything they could to reason their way around the laws against torture I don't know if they should be prosecuted. I wholeheartedly believe that the interrogators shouldn't be prosecuted because they believed they were acting legally. The lawyers that authorized their actions are a different story. These are some of the most well educated attorneys in the country. They knew that the legal opinions they were giving were not well founded, but they gave the opinions anyway and people were tortured. These people that were tortured are some of the most dangerous terrorists in the world, but that shouldn't matter. Regardless, I think that prosecuting anyone in this situation could be a slippery slope and could lead to a great deal of intervention into sensitive government activity. The attorneys' actions are reprehensible, but they were facing a situation like this country has never seen. Dealing with the new terrorist threat was, and still is, a monumentally difficult situation in a lot of ways and one of the most difficult parts is determining the legal framework that we need to employ to effectively combat it. While condoning the CIA interrogation program violated already established international law I still think some slack should be cut to everyone involved. Although they may have been overzealous I believe that their ultimate goal was to protect the country.

Pirate to be tried in federal court- The fourth, and only surviving pirate, from the taking of the Maersk Alabama appeared before a federal magistrate judge in the Southern District of New York today to be arraigned. The court found that Abduwali Abdukhadir Muse could be tried as an adult (there is some dispute as to whether Muse is 16 or 18) for piracy, two conspiracy charges, and two firearms charges. As I said before, the piracy charge carries a mandatory life sentence. There are apparently some questions as to whether Muse came onto the U.S. Navy ship to seek medical attention or under a flag of truce. If either of those things are true then Muse cannot be tried for piracy, but it is unclear whether he can be tried for the other charges. Another jurisdictional question involves Somalia's status as a functioning nation, but I'm unclear as to what the inquiry here is. More on this story as it develops. Also, this related post is pretty funny.

Not a Drop to Drink

2009-04-20T08:01:00.000-07:00

Waterboarding works... if you do it incessantly. The magic number for Khalid Shaikh Mohammed was 183 (Abu Zubaydah was waterboarded on 83 occassions). That's how many times he was waterboarded while in CIA custody. This information is supposed to be classified and redacted from the DoJ memos released last week, but apparently some of the copies didn't redact this information. When former CIA Direictor Michael Hayden was asked about this news he refused to answer saying that the info was still classified. Ummmm... don't think it is buddy. Pretty sure the cat's out of the bag.

I'm gonna go ahead and say that if you tickled me 183 times I would eventually crack and say anything to get you to stop whether it was true or not. This guy was made to feel like he was actually drowning 183 times. I think this supports the idea that torture is not an effective way to elicit information.

Pirate Law 101

2009-04-19T14:21:00.000-07:00

Disclaimer: This is a very brief discussion of the very basic jurisdictional elements in current, and potential future, piracy prosecutions. I got all this from a very interesting article by Michael Bahar, "Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations," which was published by in the 40th Volume, 1st issue of 2007 the Vanderbilt Journal of Transnational Law.

Now that the U.S. now has a Somali pirate in its custody and is allegedly considering whether to prosecute him or not I've got to ask myself under what power we can try him? When I started thinking about this I was pretty sure from a logical standpoint that we could do so. Maritime law usually grants countries broad powers in asserting jurisdiction over acts at sea even if the acts occur thousands of miles from its shores. So what precisely allows would allow the U.S. to prosecute this pirate if we decide to? What kinds of punishment attach? Can we tar and feather him and parade him down Constitution Avenue in D.C. in the back of a horse drawn wagon? Can we hang him and leave the body in front of New York Harbor with a sign around his neck that says "Ye be warned"? I'm fairly certain the last two options are out of the question, but what can we do.

Our ability to try pirates is recognized under international law in the form of both Article 101 of the 1982 United Nations Law of the Sea and Article 15 of the Geneva Conventions of the High Seas (the U.S. is a party to the Geneva Convention, but not to the United Nations act). Both of these laws recognize three types of activity that constitute piracy. The pirates that attacked the Maersk Alabama they will fall under the one that considers an act of violence, on the high seas, by a private party, against a ship outside the jurisdiction of any State, as an act of piracy. An act of piracy will trigger universal jurisdiction against the pirate which means that any State can try the pirate according to its laws. This means the U.S. can try the pirate we have in custody according to U.S. law. Article 1, Section 8 of the U.S. Constitution grants the U.S. the power to try pirates, and Title 18 section 1651 of the United States Code makes the crime of piracy punishable by life in prison. Will the U.S. try this pirate since it has the power? Maybe not. In 2006 the Navy apprehended 10 Somali pirates, but chose to turn them over to Kenyan authorities for trial. This may show that trials of pirates apprehended so far away may be more of a hassle than they are worth and are better tried by countries geographically closer to where the act took place.

It's important to note that what distinguishes piracy is that it is carried out by private actors, so state-sponsored pirates would not fall under universal jurisdiction. The Somali pirates all seem to be private actors so far. Something else interesting is that terrorism that takes place on the high seas would subject the terrorists to universal jurisdiction. This means that any terrorist committing acts of terrorism on the high seas could be tried by any country that apprehends them and could be subjected to harsh piracy laws. However, attacks by state-sponsored terrorists (Hezbollah maybe?) would not qualify for universal jurisdiction.

While I was writing this post I was struck by the historical similarities between piracy and terrorism. I'm probably not the first person to draw this connection, but it's new to me so I want to lay out what I think are the similarities. For hundreds of years before the invention of the airplane and the railroad, the only alternative to land travel was sea travel. Shipping was the way that countries carried out trade with each other. Shipping was the most effective way to move goods quickly and efficiently. Given the importance of maritime commerce, piracy was a major threat to the lifeblood of almost every country. Piracy could attack the economic viability of countries and could attack their ability to administer to imperial possessions. This is why laws against piracy were so severe and the powers of countries to deal with pirates were so broad. Pirates were considered enemies of all mankind. When you look at piracy in this light it is easy to make the connection between it and terrorism. Terrorists are capable of inflicting a great deal of damage. September 11th brought down two of the tallest buildings in the world, struck at the heart of the U.S. military, brought down 4 commercial airliners, and killed thousands of innocent people. The aftermath of the attack also shut down U.S. markets for days and did a great deal of economic damage. In response to the terrorist threat the U.S. went to war, and passed many harsh and controversial laws, some of which expanded governmental powers too far. If you look at anti-terrorism laws in countries like Israel and Russia you will see that the U.S. is not the only country to employ harsh and controversial practices to its fight against terror. Like pirates, terrorists are viewed as a threat common to all countries. The extreme reaction to terrorism is similar to the extreme reaction that governments had toward piracy hundreds of years ago. Again, I believe that the reactions are similar because of the similar danger to society that they pose. An important distinction between piracy and terrorism is that piracy is motivated mostly by pecuniary interests where as terrorism is more ideologically driven; however, both practices are able to shake a country to its core.

In conclusion, I'm talking about the legal standards surrounding modern-day piracy in Somalia because it is an important current event, and I think that recent events have gotten people interested in what is happening over there. It's important to understand what is happening in the present, but I also believe it is important that we recognize the historical similarities between piracy and terrorism. I think it gives a good glimpse as to how governments react towards enemies that threaten the foundations of their society.

Jay Bybee's T-Shirt: "Torture? Fine by me."

2009-04-18T14:05:00.000-07:00

Last week, the Obama administration released a series of memos from the Department of Justice's, Office of Legal Counsel to the CIA during the Bush administration. These much anticipated memos reveal the thought processes behind Bush administration officials in authorizing the CIA to use "enhanced interrogation techniques" (i.e. torture) on high value al Qaeda detainees. Given the fact that my final round of law school exams are coming up, I haven't had time to read through the memos in their entirety, but I will give you a general idea about what is in each one:

1. August 1, 2002, Jay Bybee to John Rizzo- This memo gave the go ahead to the CIA to use enhanced interrogation techniques to elicit information from al Qaeda operative Abu Zubaydah. Approved techniques include waterboarding and putting Zubaydah in a box and then putting a caterpillar in there with him (apparently Zubaydah is afraid of bugs). Note to anyone that tortures me in the future: putting me in a box with a spider will be a much more effective technique than waterboarding.

2. May 30, 2005, Stephen Bradbury to John Rizzo- This posits the theory that the Conventions Against Torture only prohibits the CIA from torturing someone on American soil, and even if the CAT did extend beyond that geographic scope that the CIA interrogation program would not violate its provisions. In summary, this one offers legal justification for torture at CIA "black sites" operated in foreign countries. The Obama administration ordered these black sites to be shuttered a couple of weeks ago.

3. May 10, 2005, Stephen Bradbury to John Rizzo- Advising the CIA that the set of advanced interrogation techniques it intended to use would not violate Title 18 sections 2340-2340(A).

4. May 10, 2005, Stephen Bradbury to John Rizzo- This one is longer, but seems to reach the same conclusion as #3.

From my brief skimming of these memos they appear to be very interesting. Gives you a glimpse in to what the CIA interrogation program actually did. I think the fact that they had to ask so many questions about whether what they were doing was legal or not may have been a good indicator that it wasn't.

Beck to the Future - Part Deux

2009-04-16T13:55:00.000-07:00

The pilot episode of my Glenn Beck live blog was pretty successful so I've decided to extend Glenn's contract for another three episodes. What does Glenn have in store for us today? I don't know, but we are about to find out.

5:00 - There he is. Glenn is wearing a nice suit jacket and tie with a pair of what appear to be Abercrombie and Fitch jeans. Glenn's ratings among those 12-16 just tripled.

5:01 - People Glenn insulted in 60 seconds: Obama (3x), Mexico's president Felipe Calderon, Homeland Security Secretary Janet Napolitano.

5:02 - Glenn is mocking those who mocked the "Tea Parties." GET 'EM GLENN! He says that the left-wing media is equating those that attended these events as extremists (cue picture of gun wielding terrorist). Glenn is sarcastically calling himself and extremist. I am sensing that he actually doesn't think he's an extremist. Oh Glenn, you are so clever.

5:05 - Glenn is now sarcastically listing all the reasons why he's an extremist. Caveat: Glenn is not actually saying he's an extremist, he's using the comedic tool of sarcasm to ridicule those that call him an extremist. Recall that last week Glenn poured what appeared to be gas on one of his employees.

5:07 - Glenn welcomes the CEO of the NRA (fellow extremist... not). This guy just told Diane Feinstein to tell him and his fellow NRA members to tell them "when and where to show up." Note to Diane Feinstein: when a top member of the NRA asks you "when and where to show up", DO NOT GO TO THAT PLACE.

5:08 - GB just told us that the only two organizations he belongs to are his church and the NRA. This establishes how in touch Glenn is with both society and his sanity.

5:11 - They are talking about a proposal by the UN to ban individual ownership of guns worldwide. They don't like it. NRA guy just said that when the glass breaks in your house not to call the UN for help. I absolutely agree with this guy. Do not call the UN. It will take them a REALLY long time for them to get there. Actually, it's unlikely that they will respond at all. Let me suggest calling the police.

5:16 - In a strange turn in the show Glenn just showed a picture of Martin Luther King and said that he changed the world without a gun and that's what we have to do. Recall that we just said goodbye to the CEO of the National Rifle Association. I don't know what to make of this.

5:19 - Glenn is in the process of comparing the Tea Party attendees to Martin Luther King. He also just said that instead of getting compared to MLK they are the victims of "teabagging" jokes. This officially makes Glenn the first person to invoke the spirit MLK and "teabagging" in the same sentence. Glenn Beck, you are a wordsmith.

5:20 - Commercial break. Forecast for the rest of the show: 90% chance of sarcasm.

5:24 - Glenn opens up with a clip of him in Texas at the Tea Party. Gretta Van Sustren just said it looks like Texas is ready to secede from the Union. Everyone in the background goes nuts cheering. Glenn nods knowingly and turns around. Glenn then says that those people love Amercia. This is the picture of sanity. Ooooo it looks like they are passing out Kool Aid in the background.

5:26 - Glenn welcomes Georgetown law professor Randy Barnett who is a states rights advocate. Finally someone that can challenge Glenn's raw intellect.

5:28 - This guy finally leaves. Thank god. What they were talking about was lame and Glenn could in no way understand what was coming out of the professor's mouth.

5:29 - Commercial break. Glenn will be talking about the Tea Parties when we come back. Or maybe he is having a tea party when he comes back. I'm not clear on which it is, but I'm hoping it's the latter.

5:33 - We're back. No actual tea party. Dammit. He's just talking about the tax-related Tea Parties again. Now he's playing clips from the "left-wing" media coverage (Read: every single respectable news station). Now showing a clip from CNN's coverage. This reporter from CNN is interviewing people at a Tea Party. Some lunatic is screaming about how his liberty is being taken away and now the crowd seems to be turning on her. The split-screen of Glenn's face shows that he is upset that the CNN reporter is repressing this lunatic's rights. Chances of that reporter getting out of that Tea Party alive - 7%.

5:40 - Some dude from a Tea Party is now on with Glenn. This guy just said that he is "jazzed up" twice in 5 seconds. This guy is getting me PSYCHED... jazzed even.

5:42 - Glenn says that we are now moving towards American Progressivism which he equates with Communism and Socialism. Tea Party guy just asked Glenn if he remembers "Life, Liberty, and the Pursuit of Happiness." Glenn does. Ooooo!!! Ooooo!!! I remember, I remember!

5:44 - Both of these guys are accusing Americans, liberals and conservatives, of hating capitalism. I question this tactic. Tea Party guy just said that fraud is a fact of life in business and that the government shouldn't regulate it. He says the market will take care of itself. There's no doubt in my mind that this guy is engaging in some securities violation as we speak.

5:46 - Glenn is plugging his "Common Sense Comedy Tour" which is a comedy tour, starring Glenn of course, for conservatives. He is SO versatile. Maybe the greatest entertainer of our time. OH SWEET MANNA FROM HEAVEN!!! Glenn is coming to Richmond June 6!!! Bar study break. Who's coming with me?

5:49 - Tea Party guy is STILL here. He's the only person I've ever seen that is more insane and "jazzed up" than Glenn. I couldn't despise him more if I tried.

5:53 - Glenn just said that we'll never be able to reach the crazy nut-jobs on either side of the political divide. Hmmmm... the irony of this statement coming from Glenn is not lost on me.

I'm ending this here because all Glenn did after the last commercial break was show this clip from Britain's version of American Idol that shows a British woman, Susan Boyle, who is in her late 40's, and is considerably more talented than Glenn. In a shameless display of self-aggrandizement, Glenn talks about how talented she is and then subtley compares himself to her. DO NOT MESS WITH SUSAN BOYLE GLENN!!! She's twice the lady you'll ever be.

Themes of the show: sarcasm, Tea Parties (not the fun ones with tea and scones, but the ones with insane people that don't think we have to pay taxes), and Susan Boyle.

The Last Time People Were This Interested In Pirates Johnny Depp Was Involved

2009-04-16T07:35:00.000-07:00

Now that we've had some time to cool down from the story of the Navy SEALs straight facing those Somali pirates and freeing the U.S. ship captain (I talked about it for 72 hours straight, even in my sleep. This subsequently led my girlfriend to threaten to break up with me. Since she's wholly uninterested in my blog, I've chosen this forum to talk about the situation further), I think it is time to reflect on what is happening on and around the Horn of Africa. I read this post by Ilan Goldenberg at Democracy Arsenal which I mostly agree with. He says that the recent hostage situation involving the American captain has created a frenzy of public attention surrounding the Somali pirate situation as if it is some kind of new phenomenon. Of course, this is not true because pirates have been a problem in that part of the world for awhile, but no one here really paid a lot of attention until an American was captured. This is a typical reaction for most people. You don't pay attention to a problem until it strikes home for you, and it struck home to Americans when the Maersk Alabama was taken over by pirates and the captain was held hostage. Now all of the sudden people are calling for the complete obliteration of these scallywags. Goldenberg points to an article in the NY Post in which the author paints an apocalyptic end to the pirates after the U.S. turns its full military might against them. Great idea buddy. Let's get involved in an all out sea, air, and land assault on a bunch of well armed fishermen in glorified row boats. Maybe I'm understating the skill of these pirates seeing as how a relatively low number of them can take over enourmous ships using pretty rudimentary means, but I'm just saying that we shouldn't want to mobilize the rest of an already strained military to go out and fight these guys. I do believe that the U.S. and other countries need to step up their presence in the region and take the fight to the pirates, but we don't need to wage war over there. I think we can control the problem with a concerted effort that focuses naval assets of several countries on stemming the problem. I only say that we can stem the problem because I don't think we can stop it without fixing the root problem in Somalia which is a big one. I don't think I would be going to far out on a limb here by saying that Somalia is the most lawless country in the world and that the word government can be used only loosely in describing who is running the country. It's that kind of lawlessness that leads to an environment in which the pirates can act with impunity in country.

While the piracy is a problem I think it pales in comparison to the potential that Somalia has to be the next terrorist safe haven. They already have a major radical Islamic group called al Shabab who is growing increasingly powerful. A relatively weak government and strong radical presence creates an ideal situation for Somalia becoming the next terrorist safe haven in the mold of Afghanistan. Nearby Sudan used to be al Qaeda's base of operations before it moved to Afghanistan so the region is not new to radical Islam. It's Obama's new policy to attack and destroy terrorist safe havens, but that policy seems to be confined to Pakistan and Afghanistan thus far.

If Somalia becomes a base of operations for terrorists will we start turning military attention there? Will Somalia be the next Iraq? I don't me to be sensationalist, but Somalia will need a strong government that can control terrorist activity if it is truly not going to be a safe haven. The U.S.'s main goal in Iraq and Afghanistan is to get strong central governments set up so that they can turn those countries around and stop them from becoming bases for terrorist activity. I think that we can make life very uncomfortable for terrorists in Somalia by directing more surgical military action at them (special operations, drone attacks, etc.) without a full scale invasion, but I don't know if we can completely disrupt terrorist operations there. This is all assuming that Somalia becomes a hub of terrorist activity, which may not happen, but I think it has all the symptoms of a potential safe haven which deserves some serious attention.

Lifeboat of Death

2009-04-13T07:20:00.000-07:00

I can't even begin to describe to you how hyped I am about this story. Contrary to Fox News (notably Glenn Beck), I believe we did the right thing by sending in negotiators, but I knew in my heart that it was gonna get real out there. Last night it did get real when U.S. Navy snipers killed* three pirates to free Captain Richard Phillips. The Navy decided to take action when they felt that Phillips's life was in imminent danger given the agitated state of the pirates and the fact that they had an AK-47 leveled at his back. A fourth pirate was actually aboard a U.S. Navy ship at the time and he is now being held while federal prosecutors decide whether to press charges or not. This fourth pirate is the first pirate to be held for an attack against an American citizen in modern U.S. history.

I mean this is a pretty amazing story. The pirates leveled a gun at Phillips's back and the snipers then shot all three pirates in the head while they were on a lifeboat that had to have been rocking around on the water. This is incredible. I'm already writing the screenplay. I've got calls into Seagal's people. I also see a spot for Haley Joel Osment and Angela Landsbury. Creative casting will be this movie's hallmark. The working title for the movie is also the title of this blog - "Lifeboat of Death."

* CNN is careful to point out that all three pirates were killed by head shots. If you didn't just fist pump at this news you need to check your pulse because you may be dead.

Interlocutory Appeal in Maqaleh

2009-04-11T08:58:00.000-07:00

About a week ago a D.C. District Court ruling extended habeas rights to detainees at Bagram Air Base in Afghanistan as long as the detainees were non-Afghan citizens that were not captured in Afghanistan. Naturally, the Justice Department was not down with that decision so they have filed for an interlocutory appeal (an appeal that comes before a final decision) calling on the D.C. Circuit Court to reverse the district's ruling.

The appeal makes a couple of minor arguments. Among those is the argument that Bagram is not under enough control by the U.S. to confer habeas rights. The other is a somewhat corollary argument that the prisoners at Bagram have never been held at a place that confers habeas rights and therefore the government cannot be accussed of attempting to circumvent the Constitution by transfering the prisoners from one place that has habeas protection to one that doesn't.

The motion's major argument is that allowing detainees at Bagram to have habeas rights will talk away from the military's ability to carry out operations in Afghanistan. The district court's ruling said that the "practical obstacles" in allowing habeas rights at Bagram were not as serious as alleged and therefore could not stop the extension of those rights to the detainees there. The government's motion here argues that the practical obstacles are substantial. I break the argument down into five parts: 1) it affects the military's judgment on where to detain individuals; 2) terrorists will be encouraged to conduct operations from Pakistan because they think the U.S. will be less likely to take prisoners in that country since it will have to be prepared to defend habeas petitions filed by those prisoners; 3) Bagram is in a dangerous theater of war; 4) there will be a flood of habeas petitions from prisoners already at the prison; 5) general logistical and security difficulties inherent in carrying out habeas proceedings at Bagram.

I'm not sure what to make of this situation. Let's face it, Bagram is different than Gitmo. I do believe that Bagram is essentially under as much U.S. control as Gitmo, which was a major factor in the Boumediene ruling so we can go ahead and check that off as a factor favoring habeas at Bagram. I'm not sure what kind of logistical hurdles exist in bringing lawyers in and all the other things that are necessary to carry out habeas at Bagram. Although I don't know what they are I do believe that logistical hurdles can be overcome. The biggest question I have and in my opinion the biggest potential danger is what affect would it have on military operations. A good number of future prisoners at Bagram will probably come from operations carried out in Pakistan. I don't want special forces operators to have to take into account the complexities of habeas litigation when they are carrying out their missions. I think that the legal obligations those guys should be concerned with are the laws of war, and not evidentiary questions that could arise at a habeas hearing at Bagram. Sure sometimes there will be sufficient documentation and other evidence available from military missions to support a hearing, but just as many times there may not be. What if an important apprehension is made during a spur of the moment mission where the only people that really have the evidence to show that the person should be detained are military personnel operating out in the field? Are we going to ask them to come back from the front lines to testify? Are we going to make them sit down and write out some kind of report? I don't want to pile extra burdens on the men out on the front lines. They have enough to deal with already. Again I don't know how habeas proceedings would go at Bagram and what methods we would have to use to effectively carry them out. I believe that constitutional protections such as habeas corpus need to be respected in the relatively new fight against terrorism, but I worry sometimes that our attempt to apply the best and most fair procedures as possible will, in some instances, hamstring us in the actual fight.

Black Out

2009-04-10T13:47:00.000-07:00

A happy Good Friday to all. In celebration of the upcoming holiday new Director of the CIA Leon Pannetta dressed up as a pink bunny* and delivered an early Easter present to civil rights activists. Reuters reports today that the CIA is closing its controversial "black sites." Black sites are foreign facilities used by the CIA to hold and interrogate suspected terrorists. Interrogation methods used at these sites were alleged to be extremely severe. Pannetta said that the sites were being closed down in an attempt to make it clear that the CIA is falling in line with the Obama administration's new policies regarding detention and interrogation. The preferred method of staffing these black sites seems to have been to hire private contractors, but Pannetta aslo says that the CIA will no longer contract out interrogation operations.

I'm gonna be honest. I'm a little skeptical about this. These are black sites. "Black" means that the location of the sites is classified at the highest level. No one really knows where these sites are so how will we know that the CIA has closed them? And even if they do close the existing ones how will we know if they don't open others? I don't mean to sound like a conspiracy theorist, but those are the questions that immediately popped into my head when I saw this story. However, in the Easter spirit, I will choose to believe the new DCI on this one and take him at his word. As far as no longer farming out interrogations to contractors I think we can definitely keep an eye on that and see whether it is happening or not. I absolutely believe that we need to keep interrogations, as well as a lot of other things, in house so this is a big step. Kudos to Leon and the Obama administration for trying to clean things up a little.

*This is pure speculation. I have no actual evidence that Leon Pannetta dressed up in a pink bunny suit.

Beck to the Future - The Pilot Installment

2009-04-09T13:12:00.000-07:00

I've been told that live blogging is the heat. People need their information real time so that is how I'm going to give it to them. Today will be the first installment of "Beck to the Future", a series of live blogs following the Glenn Beck show on Fox News. Why the Glenn Beck show? I'll tell you why. Because I saw this clip from the Colbert Report the other day and I felt like my eyes had been opened for the very first time. Sure I'd heard of Glenn Beck before, but I didn't actually follow any of his shows. After I saw that clip depicting Glenn Beck weeping on national TV because he loves America so much I knew I could go no longer without Glenn Beck in my life. This will be my first time watching the show so join me, won't you? Let's delve into the dark heart of conservative television together. I will need you guys now more than ever. Let's begin:

4:58- I have Fox News on mute right now because I believe the most my brain can take of this station is 60 minutes.

5:00 - GLENN IS ON! He says his special guest is the governor of Texas. He just called the people working in Washington "clowns", and then talked in a British accent.

5:01 - He is unhappy that we are sending FBI hostage negotiators to try to free the captain captured by Somali pirates. Glenn seems to think that the resolution to the situation is obvious, but will not share it with us.

5:02 - Glenn is pouring gas on one of his show's workers because he disagrees with Obama's policies. It is unclear why he is doing this.

5:05 - SWEET JESUS HE JUST LIT A MATCH! Whew... it was just water in the gas can. That was close. Glenn is now calling for sanity in this country. When I say "calling for" I mean he is screaming at the camera.

5:06 - Rick Perry, governor of Texas, is now on. Glenn is asking him if he's regretting being on the show. Rick's words say no, but his eyes say yes.

5:07 - The banner on the bottom of the screen says "Economic Apocalypse". Rick also feels we need sanity in Washington.

5:08 - In a show of metaphorical genius, Glenn just compared border security to a bathtub. Rick Perry says that border security is an abject failure. I'll agree with him on this.

5:10 - Glenn is talking about an article in Time magazine that called him crazy. Time magazine... YOU BASTARDS!!! How dare you spew so much nonsensical vitriol about a true patriot like Glenn?!

5:11 - Glenn is complaining about the laws that require him to say that what he poured on his staffer was in fact water. These legal constraints are choking the life out of him. By the way, this guy is still sitting in the studio with Glenn and he is soaking wet. Glenn doesn't want him to leave because it is extremely cold in the studio and the guy is soaked in water. hahahahah... oh Glenn, you are such a card.

5:14 - He's now talking to a professor from Columbia about the recession. Good god, they just showed a map of the U.S. that put Hawaii approximately 1 inch southeast of Florida. This could be a subliminal message that the recession is going to force us to sell Hawaii to the Bahamas. Greedy Bahamas. Haven't we given you enough already?

5:17 - Glenn and this professor are getting along great together. They just shared a good belly laugh about how Cubans drive cars made in the 1950's and how silly "Progressives" (the best I can tell this is code for liberals) are.

5:23 - We are back from commercial break. Glenn wants to talk to the professor about municipal bonds. Glenn's eyes have glassed over because he doesn't understand anything about this. He is now preparing his next attack on liberal America.

5:25 - Glenn just said he called his stock broker 6 months ago to get all him money out of the stock market. I can only assume that this money is now filling Glenn's mattress at home.

5:27 - The professor is done. This is good for the professor I think. It was only a matter of time before Glenn poured gas on him. Commercial break. Oh goody. Special Easter thoughts from Glenn Beck next. You are going to want to stick around for this.

5:31 - BECK IS BACK BABY!!!

5:32 - He's talking about Jesus. Glenn wants us to stop arguing about religion.

5:33 - Glenn said that those ancient people surrounded by frogs and locusts had it worse than a country with 8.5% unemployment. On this point Glenn and I are in complete agreement.

5:34 - Clip from the movie "The Ten Commandments." I mean this is a long clip. I think Glenn may be taking the next 26 minutes off.

5:35 - Oooo he's back. Nope. Wait. Now a clip from "Passion of the Christ." Glenn believes that the crises in this country are preparing us for powerful miracles. They are just around the corner apparently. LEAD ME THERE GLENN!

5:38 - Commercial break. Rick Perry will be back along with Dr. Laura. The combination of these three people may represent one of the 4 horsemen of the apocalypse. Or maybe, just like Glenn said, it is just something else that we are going to have to struggle through. I can't decide which it is.

5:40 - We're back. They just played a 911 call from Marcus Luttrell to emergency services saying that he was chasing the guys that just killed his dog. For those of you who don't know who Marcus Luttrell is a Navy SEAL who wrote a book called "Lone Survivor" which is a great and moving book. Luttrell is a hero and a badass, and whoever killed his dog has got to be completely insane. I would list Glenn as a person of interest in this crime.

5:42 - Glenn let Governor Perry go and told him to hold it down in Texas.

5:44 - Glenn and Dr. Laura are talking about stay at home moms.

5:45 - Glenn is saying how he and his wife will be homeschooling their children. Shocker. This will ensure that Glenn's kids will be as socially well adjuested as he is. Glenn believes there is too much propoganda in schools. Word UP, Glenn. I saw a flyer for a Hitler Youth ralley at school just today.

5:46 - Commercial break. This is immediately followed by an ad saying that the Glenn Beck program is brought to you by the Evangelical Church of America. A more likely alliance there has never been.

5:49 - Glenn welcomes author Harlan Coben. Harlan's tie is the most heinous thing I've ever seen.

5:50 - Harlan and Glenn are talking about torture. Harlan says he is skeptical of anyone who won't let him punch a terrorist in the face if he can save innocent lives. You and me both Harlan.

5:51 - Harlan says that his mother doesn't remember his birth. Ummmm, I don't want this to be awkward Harlan, buuuuuuttt... you were adopted. I'm sorry Harlan. I didn't want you to have to find out like this. Sweet tie though.

5:52 - Glenn says goodbye to Harlan. He doesn't want any motherless freaks on his show.

5:54 - Glenn is talking about global warming. He is skeptical about global warming to say the least.

5:57 - Glenn tells us the earth has warmed 0.7 degrees Celsius in the past 100 years (the tone of his voice tells me he isn't alarmed by this). He sarcastically wipes his brow from the sweat caused by this seemingly small temperature increase. HAHAHAHA! GLENN! HAHAH! STOP! HA! I! HAHA! CAN'T! HAHAHA! BREATHE!

5:58 - One of Glenn's other staff members is getting married apparently. Good for her I say. I hope it works out. Glen just gave her a door mat that says "The Spin Stops Here." Glenn you are one cheap m****f****er. I think those kids are gonna make it though.

6:00 - SHOW'S OVER!!! We made it folks. Congratulations all around. I'm not sure we could have asked Glenn for a better show.

Recap: four guests (one governnor, one professor, one doctor, and one motherless bastard), one 911 phone call, two religiously based movie clips, one of the ugliest ties ever worn on TV, 0.7 degree Celsius, and one doormat that will soon grace my front porch.

Takin' It to the LIMMT

2009-04-08T11:16:00.000-07:00

Those wily Iranians are at it again. The seemingly immortal New York District Attorney Robert Morgenthau announced yesterday that the NY DA's has filed an indictment against a Chinese company, LIMMT, that has been illegally selling banned materials to Iran in violation of United Nations bans as well as U.S. law. The 59 page, 118 count indictment can be found here and a New York Times article about the indictment can be found here. It is accused of selling metals that can be used in the production of nuclear weapons to an arm of the Iranian military called the Defense Industries Organization. In the sale of these materials LIMMT used U.S. banks in New York City to transfer money, and that is how the NYC DA got the case.

The question that jumped out at me when I saw this story was, why in the world Iran, or companies trying to do this kind of business with Iran, would use U.S. banks to facilitate these transactions? Seems kind of stupid to me since it is one of the U.S.'s goals in life to stop Iran from developing the bomb or advancing its military in any way. The indictment actually answers that question, and the answer is that due to the shear amount of global commerce that is carried out in U.S. dollars LIMMT had no choice but to go through U.S. banks. This posed a big problem for them because in 2006 the Treasury Department banned LIMMT from using the U.S. financial system in any way. In order to get around the Treasury sanctions, LIMMT simply used false names on its money transfers (a crime called "falsifying business records", and the only crime charged in the indictment) which worked to bypass the countermeasures the banks had in place to stop LIMMT from doing business.

I had an earlier post about financial crimes that were facilitating Iran's quest to acquire advanced military equipment. This one is more disturbing because the transactions involve material that is essential in enriching uranium and building an actual bomb. Further proof that Iran is actively pursuing a military nuclear agenda that needs to be halted because the introduction of more nuclear weapons to the Middle East (it's a not so well kept secret that Israel has nuclear weapons) will add a great deal of fuel to an already raging fire.

Something I found a little funny is the number of aliases the indictment credits to LIMMT's owner Li Fang Wei. He has seven aliases one of which is "Patric" (no "k"; way to disguise the name "Patrick" there Li), and another of which is "Sunny Bai." Listen, if you have seven aliases you are a criminal. I think that creates an unrebuttable presumption that you are up to no good. On top of that one of his nicknames is "Sunny" which is only slightly less criminal sounding than "Snake" or "Knuckles." Li, come up with some respectable nicknames for the next indictment.

Kiyemba Kraziness

2009-04-07T14:25:00.000-07:00

Three major decisions/filings based on the D.C. Circuit's recent decision in Kiyemba v. Obama have come in the past two days. Remember Kiyemba deals with 17 Chinese Uighurs who have been held at Gitmo for more than 6 years. The D.C. Circuit's latest ruling said that the U.S. cannot be forced to release them into the U.S. even though their confinement has been deemed to be unlawful The first was the filing of a cert petition by the detainees' attorneys to overturn the D.C. Circuit's ruling.

Cert Petition

Petitioners are arguing that the Constitution requires a habeas court to grant a remedy (i.e. release from confinement) to a prisoner that has been successful in their habeas petition. Anything less, petitioners argue, would make a habeas court irrelevant. The petition goes on to argue that the D.C. Circuit improperly put the burden on the detainees to show why they should be released when the burden is actually on the government to show why it should still be able to hold them. It cites authority from Boumediene saying that the court must be able to grant conditional release as a remedy for habeas cases.

The petition also makes some interesting arguments against the D.C. Circuit's use of immigration law to back up its decision. It says that if immigration law is allowed to trump the Supreme Court's decision in Boumediene then it eviscerates the decision as well as the Constitution's Suspension Clause. I think this argument is summed up nicely by the line "The Suspension Clause may not be eluded by thumbing to a differe nt act of Congress." The argument goes on to cite Supreme Court precedent that has trumped immigration law in the past. The most fascinating, and slightly confusing, part of the immigration section actually comes before the argument I just summarized. Just before Petitioners talk about not allowing immigration law to invalidate Boumediene and the Constitution they argue that no immigration laws have been triggered in the case because they haven't applied for immigration. It goes on to say that immigration remedies are not foreclosed to the Executive branch once they are released and specifically mentions the option of deportation. This seems to be a non-starter because we can't deport the Uighurs. We've essentially tried to do that for years since their release has been granted but no country will take them (over 100 countries have already refused). They are originally from China but we can't send them there because of the high likelihood that they will be tortured or executed. This means that deportation is out because we can't send them to China or anywhere else in the world because no other country wants them.

The petition has other arguments of course, but I won't detail them here for the sake of brevity. Important things to think about with this litigation is the impact it will have on all Gitmo detainees. Do I want the Uighurs released? Yes I do. Do I think we should release them here? That is something I'm trepidatious about, but maybe not as much as other Gitmo prisoners. The Uighurs have received terrorist training, but by all accounts have no historical beef with the U.S. However, the U.S. has kept them in wrongful captivity for years so they may have developed some resentment. However, the big concern with this case is that a decision to allow the Uighurs to be released into this country will open the door for other Gitmo detainees to be released here if we can't find another country for them. That is a much more disturbing possiblity to me.

Motions in Opposition to Renewed Motions for Contempt

Two motions here and here were filed yesterday in the D.C. Circuit asking for a denial of Petitioners' motions to holder Secretary of Defense Gates in contempt for not effectuating their release from Gitmo. Again, those filing these motions are Uighurs. In an earlier post I talked about the contempt motions and said that they were fairly unrealistic. While I see their plight and want to get them relief, I also don't think that Gates is in a position where he can release them right now. These opposition motions argue that the Kiyemba decision settles the matter once and for all because it says that a federal court cannot force a Gitmo prisoner to be released into the U.S. therefore Gates can't be held in contempt for not releasing them. The original motions filed by the petitioners also argued that Gates did not need a judicial order to release them and that he could do it on his own. I will repeat what I said in my last post concerning this matter. There is no way that is going to happen.

Another D.C. Circuit Kiyemba Decision

In this decision the D.C. Circuit says that if the political branches find a country that will accept the Uighurs then the Uighurs cannot ask for a judicial review of the likelihood that they will be tortured in that country. The same goes for the potential for the Uighurs being prosecuted and detained in the country they are sent to. The court decided that it could not issue a protective habeas writ that protected a detainee from foreign prosecution because such a writ would violate international comity of laws.

I don't have a lot to say about this case in particular. I feel like it was rightly decided because allowing for judicial review of the other Executive's determination that there is a low likelihood for torture would venture too far into the province of the Executive. I'm in even more agreement about protection from foreign prosecution. The U.S. cannot infringe on another country's right to prosecute who it wants to. We just need to trust that the Executive will do its best not to send detainees to countries where they will be tortured or likely prosecuted and imprisoned again.

Habeas Extends to Some at Bagram

2009-04-02T11:43:00.000-07:00

Judge Bates of the D.C. District Court handed down his opinion in the Maqaleh v. Gates case today. This case was filed by detainees held at a military detention facility, similar to the one at Gitmo, at Bagram Air Base in Afghanistan. The question at issue in the case was whether the Boumediene opinion extended habeas corpus rights to some held at Bagram as long as they were not Afghan citizens or prisoners captured in Afghanistan. The opinion concludes that those held at the only distinguising characteristic between those held at Bagram and those held at Gitmo is their geographic location. I will highlight some parts of the opinion I believe are important.

The first thing that jumped out at me was very early on in the opinion when Judge Bates stated that the "objective degree of control" the U.S. has over Bagram was closely analogous to the kind of control the U.S. has over Gitmo. The amount of control the U.S. had over a facility located in another country was an important part of the Boumediene opinion. The opinion goes on to say that Bagram does present habeas obstacles that Gitmo didn't because Bagram is located in a war zone, but that those obstacles were not "insurmountable."

In examining the court's jurisdiction to hear the case, the opinion finds that Boumediene was an "as applied" rejection of section 7 of the Military Commissions Act. This meant that section 7 could still be constitutional when used in relation to habeas petitions from other prisons such as Bagram. In determining whether habeas applies to those at Bagram, Judge Bates broke the Supreme Court's 3 part test Boumediene test into 6 parts: 1) what is the detainee's citizenship; 2) what is his status (i.e. is he an enemy combatant?); 3) was the process that determined his status adequate; 4) where was he apprehended; 5) what kind of facility is he held in; and 6) what are the "practical obstacles" in extending habeas to him. The court decided to apply this test in an individualized manner to each detainee rather than a general application to all detainees at the same time. Three of the factors were the same for all detainees in this case in that they 1) were all enemy combatants 2) captured outside the U.S. and 3) none of them are U.S. citizens. It found that the fact that none of them are U.S. citizens is a mark against extending habeas to them, but that it is only one factor and all factors must be weighed. The court was also rather dismissive of the factor pertaining to the process that labeled the detainees "enemy combatants." It found that the process was broad and indiscriminate, and thus weighed in favor of the more structured habeas process.

An important part of the opinion comes when Judge Bates talks about the site of apprehension. The court noted that all four of the detainees in this case were captured outside of Afghanistan and then "rendered" to Bagram. Rendition, as you may know, has become a somewhat favored tool in the fight against terrorism and involves capturing a suspected terrorist in one country and then moving them to another for purposes of confinement or interrogation. This section is important because it lays out a limit to application of habeas rights. Bates finds that there is "a meaningful distinction between Bagram prisoners captured outside Afghanistan... and Bagram detainees who were captured on the battlefield in Afghanistan." The distinction is that those captured in Afghanistan were captured in a theater of war and therefore are subject to different rules, while those rendered into the country should be treated differently. The court says they should be treated differently because it is important to control the power of the Executive to render people to other countries so that the Constitution will not apply to them.

The court felt that the 3 factors in its test that are most important are: 1) site of detention; 2) process used to determine status; and 3) practical obstacles of entitlement to habeas. Site of detention hinges on degree of control which, as I said earlier, was a big factor in Boumediene. It found that the jurisdiction the U.S. has over Gitmo is significantly greater than that it has over Bagram; however, the court said that the most important aspect to examine was the "objective degree of control." This distinction between jurisdiction and degree of control allows the court to say that while jurisdiction over Bagram may not be complete, the objective degree of control over the facility is. A contrast is drawn between Bagram and Landsburg prison which was an allied prison facility set up after WWII. Landsburg was at the center of a major Supreme Court decsion in the case of Johnson v. Eisentrager, where the Court found, among other things, that the U.S. didn't have control over the prison. I won't go into detail about Eisentrager in this post, but Judge Bates sets up a spectrum to illustrate degree of control in this opinion with Gitmo at one end and Landsburg at the other, and says that Bagram is more on the Gitmo side of the spectrum. Taking away a little from finding objective control is the U.S.'s intent to stay for an extended period of time at Bagram. The court felt that there wasn't a clear showing of an inent to stay for an extended period of time so it weighed that against finding objective control. What this all boils down to is that Maqaleh finds that Bagram is objectively under the control of the U.S., but that the control is less than that at Gitmo and therefore this factor weighs slightly in favor of the detainees in this case, but not as much as it did in Boumediene.

As far as the process factor goes, the court found that Bagram uses Unlawful Enemy Combatant Review Board (UECRB) to determine if a detainee is an enemy combatant. The opinion quickly denounces the UECRBs as less procedurally effecitve than the CSRTs at Gitmo which were found to be procedurally lacking in Boumediene. In the UECRBs detainees are not allowed counsel and may only submit a written statement to the board, no oral argument. The UECRB process also has no type of appellate-like review, which even the CSRTs had. The court makes short order of this factor and finds that it weighs more strongly in favor of Bagram detainees than Gitmo detainees.

The court acknowledges that providing habeas to Bagram could have practical difficulties because it is in an active war zone. However, the opinion turns back to Eisentrager and finds that status review in that case had lots of procedural protections even though the status reviews took place in post-WWII China. It notes that with technological advances the U.S. should be more easily able to overcome difficulties in Afghanistan. The opinion also goes on to say that problems with gathering evidence and witnesses are overstate by the government's argument, and that any effect on the timeliness of carrying out the military's mission is overcome by providing a buffer of "reasonable time" before the habeas process begins.

It is at this point that the opinion draws another important boundary for habeas rights. It says that a practical problem does exist as to detainees that are Afghan citizens. These problems arise out of tension with the Afghan government in having the U.S. exert its laws over Afghan citizens. Another problem would be having habeas review order the release of a potentially dangerous Afghan citizen back into Afghanistan where he could commit further crimes. The court found this problem to be very serious and thus found that habeas does not extend to Afghan citizens held at Bagram. While the earlier limit of habeas only extending to those not apprehended in Afghanistan did not apply to any of the detainees in this case, the limit of habeas not extending to Afghan citizens does apply in this case. One of the detainees, Haji Wazir, is an Afghan citizen and thus this factor weighs against him receiving habeas rights, but might instead need to be transfered to Afghan custody. The last part of the opinion goes into another ground urged by the detainees upon which Wazir may receive habeas rights, but it said that the court would require additional briefing.

The bare bones conclusion of the opinion is this: habeas rights extend to detainees at Bagram as long as they are not Afghan citizens or as long as they were not captured in Afghanistan. The court found that section 7 of the Military Commissions Act is unconstitutional as applied to Bagram just as it is unconstitutional as applied to Gitmo (remember that courts have not found section 7 to be facially unconstitutional and therefore it may be constitutional in some instances). I want to note that the most important factor of the six laid out in Judge Bates's opinion is the one relating to site of detention and "objective degree of control" of that site. I think it is the most important not only because it is the one most analyzed, but because I think that it affects both the adequacy of process factor and the "practical obstacles" factor. It affects the adequacy of process factor a little bit less, but I think it affects that factor because it seems that an environment that is totally under U.S. control is much more conducive to a thorough process than one that is not under control. Control is very important to the "practical obstacles" factor, especially given Bates's analysis in this case, because objective control over the facility will allow the U.S. to have great ability to allow for detainee access to counsel as well as counsel/detainee access to evidence and witnesses.

Alberto Gonzales Crosses Out Spain as a Possible Summer Vacation Spot

2009-03-29T13:21:00.000-07:00

A Spanish magistrate judge has authorized an investigation into six former Bush administration officials for their role in creating a system that allowed torture at Gitmo. The list of officials includes: Alberto Gonzales, John Yoo, Doug Feith, William J. Hayes II, Jay Bybee, and David Addington. Baltasar Garzon, the investigating magistrate responsible for authorizing the investigation, gave Spanish prosecutors the go ahead to start investigating those accused for violations of international law. Apparently Garzon is famous for starting investigations on high profile figures as he has authorized them in the past against Chilean dictator Augusto Pinochet, as well as Basques, islamic terrorists, and drug traffickers.

I'm not sure what spurred this action by Garzon, nor am I sure where he gets the power to conduct an investigation on U.S. officials. I'm unaware of any Spanish citizens that were held at Gitmo, but I could be wrong about that. Any result of this investigation would be purely symbolic as I'm sure that the U.S. would never turn those accused over to Spanish authorities if they found that they were guilty. While I don't agree with most of the things Gonzales and gang did during the Bush administration I think that it is a little ridiculous for the Spanish government to be wasting its time conducting an investigation on U.S. officials whom they have no jurisdiction over. That is a role more properly left for the International Criminal Court.

Battle Against Mexican Drug Cartels Parallels the Fight Against Terrorism

2009-03-28T12:49:00.000-07:00

A few days ago Professor Robert Chesney made a statement that really struck home with me when he said that the new fight against Mexican drug dealers is similar in many ways to the "War on Terror." He pointed to a DoJ press release put out last week that detailed the Mexican Cartel Strategy which is a collaborative effort by many federal agencies and the Department of Justice. The MCS involves renewed efforts by DEA, ATF, FBI, and the U.S. Marshals Service that are targeted at dealing with the specific challenges that the Mexican cartels pose. DEA now has 29% of its special agents in the Southwestern U.S., and will be stepping up its efforts to control methamphetamine trafficking. ATF will focus its efforts on combatting gun running while the FBI will focus on investigating public corruption, extortion, and kidnapping, and the Marshals will keep their traditional focus of fugitive apprehension.

The focuses of these agencies aren't really a departure from their traditional roles, but the parallel between the the cartel strategy and the fight against terrorism is the cooperation between the agencies. After 9/11 alot of emphasis was put on cooperation between agencies rather than competition which had been the general atmosphere pre-9/11. Here with the cartel strategy you have a concerted effort between law enforcement agencies to combat an explosive situation. Another obvious parallel between the cartels and terrorism is the violence associated. In both situations you are dealing with people who have absolutely no regard for human life. The main difference is that the motivation for the cartels is financial while the motivation for terrorists is ideological. You can also look at the fact that the cartels use kidnapping as a tool for advancing their position just like terrorists in Iraq and Afghanistan have used.

While the fight against the drug cartels and terrorism isn't exactly the same they are both serious national security concerns since both threaten American lives. It will be interesting to see how the new effort against the cartels will work to stem the violence that is spreading into the U.S.

U.S. Looking to Back a New Leader in Pakistan?

2009-03-25T11:21:00.000-07:00

An article in the NY Times today highlights the fact the U.S. is seeking to work with former/semi-present Pakistani leader Nawaz Sharif. Sharif has just recently returned to Pakistan after accepting an exile from the country in order to settle corruption charges in 1999. Upon his return he attempted to run for office until the Pakistani Supreme Court ruled that he could not do so. After that court decision Sharif led a successful movement to reinstate a Supreme Court justice that will likely overturn the court's previous decision and allow him to run for office.

The NYT article quotes a former Pakistani senator that says that Sharif holds a lot of popular support and is likely to be the "next guy Washington should talk to." While it may be true that Sharif holds popular support in Pakistan he seems to be a wild card as far as trying to figure out what kind of ally he will be for the U.S. In the past he has supported the installation of Islamic, aka Sharia, law in Pakistan. This is the kind of law that radical Islamic groups support, and interpretations of it justify the oppression of women amongst other harsh practices that Western countries often find abhorrent. Sharif also has direct ties to conservative Islam and some organizations that he has worked with in the past are linked to terrorism. Some say another strike against him is that he ordered Pakistan's first nuclear weapons test and thus intesified the regional conflict between Pakistan and India. I personally think that the ties to radical Islam are more disconcerting because our major concern with Pakistan right now is rooting out Al Qaeda and Taliban leadership, and a leader in Pakistan that is unwilling to assist in that task will be a major hindrance. The development of nuclear weapons in Pakistan was something that country felt it had to do to protect itself from an historical enemy in India, and I don't believe the U.S. of all countries can hold that against them.

Those that encourage U.S. support of Sharif say that his 8 years in exile have made him more wise and moderate than he was when he left Pakistan and thus more likely to work with the U.S. Supporters also say that he is essential in reaching out to jihadis because he has good relationships with them and will be able to facilitate cooperation between the West and Muslims that currently disagree with Western policies.

Based on this article Sharif seems to be an unknown quantity and I'd like to know some more about him before I decide one way or the other. My big reservation is that even if he is more moderate now and could work with the West wouldn't his cooperation with the West make him fall out of favor with the more conservative elements of Islam that he is supposed to help reach out to? I think the bottom line is that the West in general, but mostly the U.S., needs someone who will facilitate our mission to find Al Qaeda and Taliban leadership. I don't think there will ever be any reconciliation between those elements of radical Islam and the West so we need to continue our current aggressive policies. If we get a leader in Sharif who will help us in that fight then I think that his pull with conservative elements of Islam will erode and he will lose his ability to act as a facilitator to them.