CIA on the Ground in Libya

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?

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

Jurisdiction for the case comes via the Military Extraterritorial Jurisdiction Act (MEJA), which has been a little utilized statute that basically allows for crimes committed by contractors overseas to be heard in U.S. federal courts. Blackwater got some fairly good news a couple weeks ago when a D.C. District Court judge dismissed an indictment against former Blackwater contractors for an incident in Baghdad in 2007 that left 17 Iraqi civilians dead. That case was thrown out on grounds that statements were unconstitutionally obtained from the defendants immediately after the incident. That case also had another major hurdle to clear because the MEJA only allows for jurisdiction over those that "support" the mission of the Department of Defense and since the Blackwater contractors in that case were working for the Department of State it is unclear whether the MEJA would have conferred jurisdiction on a federal court. This new case, however, does not have that same problem because the contractors charged in this indictment were operating under a DoD contract.

U.S. Military Action in Yemen and Somalia?

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

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

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

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

• International law does not affect the President's powers under the Authorization for Use of Military Force (AUMF)- Most of Al Bihani's arguments in this case were premised on the idea that international law constrained the President's powers as granted to him by the AUMF (which was originally put in place during the Bush administration). The court found that international law has no effect on AUMF powers for two reasons. First, Congress has never implemented the international laws of war here in the U.S. therefore they serve a purely advisory role in a legal sense. International law has no binding effect on any specific country unless that country has incorporated those principles into its own laws. Secondly, even if Congress did implement international laws of war, the AUMF does not incorporate them and therefore the AUMF, as a subsequent statute, would supersede the constraints of any implemented international laws of war.
• "Purposefully and materially supported"- The court found that Al Bihani "purposefully and materially supported" a group affiliated with Al Qaeda. That standard is set out in the Military Commissions Acts of 2006 and 2009, and it is the standard to detain a person in this fight against terrorism. What is interesting here is that while Al Bihani only claims that he was a cook, and did not fire a gun or engage in other belligerent activities, the court found that this was enough to meet the standard. That is because the court concluded that "traditional food operations" are an essential element to a fighting force.
• Al Bihani's argument that he should be released because fighting in Afghanistan has ceased- Al Bihani argues that the laws of war necessitate his release as the conflict in Afghanistan has officially ended. The court disagreed with this argument saying that it is unclear whether Al Bihani was a member of the Taliban or Al Qaeda and that while Al Bihani claims that the fight against the Taliban is over he does not claim that the fight against Al Qaeda is. Furthermore, the opinion states that ordering the release of a former Taliban soldier at this point would endanger the nation building process occurring in Afghanistan. Finally, the court says that determining whether hostilities have ceased or not is a decision to be made by the Executive or by legislative decree.
• The procedure used during Al Bihani's habeas challenge was sufficient- Al Bihani challenged that the procedures used by the D.C. District Court in his habeas challenge were insufficient and unconstitutional. I'm not going to list all his specific challenges or detail the court's analysis but I will say a couple of things. The court's opinion says that habeas procedures in other settings are not controlling, or even necessarily instructive, in the context of these terrorism detention habeas challenges. The opinion calls these new habeas challenges a "new branch of the [habeas] tree", and that the procedures and parameters are to be figured out by the courts trying them. Somewhat more lax procedural standards are necessary here because requiring a stringent standard would put too much burden on military forces to adhere to legal constraints.

This is interesting because it attempts to color the lines in a little bit more as to what the U.S.'s detention authority actually is, who can be detained, and what is required of during habeas challenges.

Abdulmutallab Indictment

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

Stepped Up Security Measures For Airplane Passengers From Certain Countries

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

If you couldn't tell by this blog I generally lean to the left. I think that even though there are arguments that racial profiling can be an effective tool it is not how we should approach things. Singling people out because of skin color alone is not a principle that the policies of this country should reflect. That being said, I don't think that what is happening in this case is pure racial profiling, nor do I think that this response by the U.S. is an overreaction that is going to needlessly infringe on the rights of some and not others. Security screening needs to be more stringent everywhere. In a perfect world I believe that all passengers on every flight should be subjected to an equally elevated amount of security procedures; however, the capacity to do so simply does not exist right now. This means that we have to do the best with what we have. Citizens of these countries that fly to the U.S. are not the only ones being singled out. The NYT article says that passengers that are on flights that originate or pass through those countries are also subject to more screening. Taking that into account I would say a good deal of the blame for this rests with the governments of those countries being singled out. Just look at the list: 1) Yemen, Saudi Arabia, Afghanistan, Lebanon, Iraq, Pakistan, Iran, Syria, Somalia - these are countries that are essentially breeding grounds for terrorists. I don't think I need to say anything else about these countries to make my point; 2) Nigeria, Cuba, Algeria, Lybia, and Sudan - Algeria and Cuba aren't exactly what I would consider hot beds of terrorism, but the other three I would. Nigeria has no room to complain since the guy who tried to blow up flight 253 on Christmas Day is from there. Lybia is an historical sponsor of terrorism (Lockerbie bombing), and Sudan used to al Qaeda's base of operations and still has strong ties to terrorism. Until the governments of these countries start cracking down on the terrorists there, and in some cases actively supporting the terrorists there, then the U.S. has a legitimate interest closely scrutinizing people with connections to those countries whether the connection is through citizenship or travel.

Again, pure racial profiling is not a policy this country should adopt but when you combine a person's connection with a country to intelligence about active national security threats it is no longer about profiling, but about taking a pragmatic approach to protecting people. Unfortunately for the innocent people in most of the listed countries there are a significant amount of people there that want to do harm to Americans. It's up to the American government to protect its people and airlines from terrorist attack, and this seems like a practical way to do it. Until the systems are in place that can subject every passenger at an airport to a high level of scrutiny without causing complete gridlock we have to do the best we can with what we have. I think that means using intelligence we gather to focus screening procedures, which may mean some are singled out over others.

In the end, if you are flying to the U.S., you may just have to accept the fact that you may be subjected to more security than normal. Even if you are an American and you travel to one of these countries it seems that you will be treated in this way, and you should be. It's your choice to travel overseas, but it is not your choice to avoid security procedures that are in place when you travel, whether you think they are fair or not. If you don't want to risk being singled out in a security line and possibly feeling a little embarrassed then don't go to an airport.

Contractors in Afghanistan and Thomson Correctional Facility

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.