Hey North Korea! Chill Out Bro.

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

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?

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,

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?

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

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

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.