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.

Sixth Amendment Decision in Ghailani

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.

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

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.