Homeland Security Watch

News and analysis of critical issues in homeland security

October 19, 2012

KSM and national security

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on October 19, 2012

The following is a statement, translated from Arabic, made by Khalid Sheikh Mohammed directed at judge (and US Army Colonel) James Pohl during pre-trial proceedings on Wednesday.  The defendant, often known as KSM, is accused of being the principal planner and controller of the 9/11 attacks.

KSM is  charged with committing  eight offenses: conspiracy; attacking civilians; attacking civilian objects; intentionally causing serious bodily injury; murder in violation of the law of war; destruction of property in violation of the law of war; hijacking or hazarding a vessel or aircraft; and terrorism.

Transcripts of the Military Commission’s proceedings related to Khalid Sheikh Mohammed are available at:  http://www.mc.mil/CASES/MilitaryCommissions.aspx

Yes. In the name of God, most graceful, the government at the end of the argument gave you an advice. They told you any decision you’re going to issue you have to keep in mind the national security and to remember that there were 3,000 people killed on September 11. And I would like to give you a similar advice.

Any decision you will take, you have to keep in mind that the government, that the government is using the definition of national security as it chooses. And this expression has a definition in the Military Commission’s Rules.

We have heard the expression of national security again yesterday and today about tens of times. And everyone use this expression as he or she chooses. But legislators and legal people who deal in the legal field, they have to differentiate between the politicians’ use of this word and the legal people’s use of this word.

When the government feels sad for the death or killing of 3,000 people who were killed on September 11, we also should feel sorry that the American government, who is represented by General Martins and others, (has) killed thousands of people—millions.

This definition is a resilient definition, lasting. Every dictator can put on this definition as they choose, as he chooses to step on every definition in this world, every person, and every law and every constitution.

With this definitions, many can evade the rule and also can go against it. Many can kill people under the name of national security and to torture people under the name of national security and to detain children under the name of national security, underage children.

I don’t want to be long, but I can say that the president can take someone and throw him in the sea under the name of national security. And so—well, he can also legislate the killings, assassinations under the name of national security, (of) American citizens.

My only advice to you, that you do not get affected by the crocodile tears. Because your blood is not made of gold and ours is made out of water. We are all human beings. Thank you.

The trial of KSM has been complicated by waterboarding and other “enhanced interrogation” of the defendant.   There have been several reports of KSM having confessed to his role in 9/11 and other conspiracies and attacks.

 

September 27, 2012

Remembering our mission

Filed under: International HLS,Legal Issues,Strategy — by Philip J. Palin on September 27, 2012

I am in New York for a few days.  I arrived Wednesday for private sector meetings on supply chain resilience, catastrophe preparedness, and related. The city is packed for the opening of the United Nations.

When I checked in the guy in front of me asked the desk clerk, “How many Presidents do you have staying here?”  ”Too many,” she replied.

My President’s speech on Tuesday received considerable media attention, but most of  the coverage I saw, heard, or read focused on either the Iranian nuclear issue or domestic political implications.  Following are a few consecutive paragraphs that have — at least for me — important homeland security implications.

Before these remarks the President held up Ambassador Chris Stevens as an example, condemned the attacks on US diplomatic facilities,  and called the video that catalyzed — or justified or created cover for — the violence “crude and disgusting.”  Then he offered an explanation of the American right of free speech blending principle with pragmatism:

I know there are some who ask why we don’t just ban such a video.  And the answer is enshrined in our laws:  Our Constitution protects the right to practice free speech.

Here in the United States, countless publications provoke offense.  Like me, the majority of Americans are Christian, and yet we do not ban blasphemy against our most sacred beliefs.  As President of our country and Commander-in-Chief of our military, I accept that people are going to call me awful things every day and I will always defend their right to do so.

Americans have fought and died around the globe to protect the right of all people to express their views, even views that we profoundly disagree with.  We do not do so because we support hateful speech, but because our founders understood that without such protections, the capacity of each individual to express their own views and practice their own faith may be threatened.  We do so because in a diverse society, efforts to restrict speech can quickly become a tool to silence critics and oppress minorities.

We do so because given the power of faith in our lives, and the passion that religious differences can inflame, the strongest weapon against hateful speech is not repression; it is more speech — the voices of tolerance that rally against bigotry and blasphemy, and lift up the values of understanding and mutual respect.

Now, I know that not all countries in this body share this particular understanding of the protection of free speech.  We recognize that.  But in 2012, at a time when anyone with a cell phone can spread offensive views around the world with the click of a button, the notion that we can control the flow of information is obsolete.  The question, then, is how do we respond?

It’s a question that is very much alive in the United States.   When more control of information is advocated, the justification usually involves some aspect of homeland security.  As Chris Bellavita recently reminded us, “the Preamble to the Constitution is especially relevant to homeland security.  It offers – in 29 words – a majestic vision of the homeland security mission.”   There can be trade-offs between security and liberty.   But the homeland that matters most is secured by preserving liberty.

August 10, 2012

Brennan defines “bad guys” (NYPD looks for bad guys)

Wednesday, John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, spoke to the  Council on Foreign Relations.  His remarks focus on US operations in Yemen including the use of drones.  This is the latest in a series of extended statements by Mr. Brennan designed to explain and defend US policy regarding the lethal use of drone technology beyond Afghanistan.

Ritika Singh at LAWFARE has posted the first transcript I could find.

There is a Question and Answer session with Mr. Brennan that is considerably longer than his prepared remarks.  During this element of the program he engaged a range of issues, including Syria and cybersecurity… and bad guys.

While looking for the transcript, I stumbled across a very helpful consideration of the NYPD’s new “Domain Awareness System” at the Council on Foreign Relations website.  (If CFR can headline attention to NYPD technology projects,  I think HLSWatch can clearly address Yemen.)  Please see the CFR briefing by Matthew Waxman.

March 23, 2012

New NCTC guidelines for non-terrorism information

Thursday the Attorney-General signed out a 32 page document entitled: GUIDELINES FOR ACCESS, RETENTION, USE, AND DISSEMINATION BY THE NATIONAL COUNTERTERRORISM CENTER AND OTHER AGENCIES OF INFORMATION IN DATASETS CONTAINING NON-TERRORISM INFORMATION.

You can access the unclassified (thank goodness) document at the link embedded in the title.

The details deserve much more attention than I will have time to give until the weekend.  But previous limitations (see here and here) have clearly been softened.  The following paragraph from page 4 seemed to leap from the page:

These Guidelines permit NCTC to access and acquire United States person information for the purpose of determining whether the information is reasonably believed to constitute terrorism information and thus may be permanently retained, used, and disseminated. Any United States person information acquired must be reviewed for such purpose in accordance with the procedures below. Information is ’1″easonably believed to constitute terrorism information” if, based on the knowledge and experience ofcounterterrorism analysts as well as the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable, articulable suspicion that the information is terrorism information.”

For your reading pleasure.

March 12, 2012

Holder v. New York Times on Due Process

Filed under: Legal Issues,Radicalization,Terrorist Threats & Attacks — by Philip J. Palin on March 12, 2012

Last week HLSWatch reprinted Attorney General Eric Holder’s speech at Northwestern University’s School of Law.  In those remarks the Attorney General noted:

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.   This is simply not accurate.   “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.   The Constitution guarantees due process, not judicial process.

The lead editorial in yesterday’s (Sunday’s) New York Times maintains that judicial review is essential to the executive’s purposeful use of lethal force against a citizen.

Mr. Holder argued in his speech that judicial process and due process guaranteed by the Constitution “are not one and the same.” This is a straw man. The judiciary has the power to say what the Constitution means and make sure the elected branches apply it properly. The executive acting in secret as the police, prosecutor, jury, judge and executioner is the antithesis of due process.

The administration should seek a court’s approval before killing an American citizen, except in the sort of “hot pursuit” that justifies the police shooting of an ordinary suspect…

The complete editorial is available at: The Power to Kill.

March 8, 2012

AG Holder: “due process takes into account the realities of combat”

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on March 8, 2012

Monday evening Attorney-General Holder spoke at Northwestern University School of Law.  According to the Law School’s website,

He talked at length about the use of federal courts and military commissions in combating terrorism and the steps that need to taken before lethal force can be used against U.S. citizens linked to terrorism. In particular, the talked about using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces and who is actively engaged in planning to kill Americans.

“The Constitution empowers the president to protect the nation from any imminent threat of violent attack,” he said. “And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.”

The AG’s complete speech is available from the Department of Justice website.  (Early Thursday morning the site is down.)

A video of his remarks is available at the Northwestern University School of Law website.

–+–

For several days my access to the DOJ site has been spotty.  With a strong solar storm heading our way, who knows what might happen.  So, with apologies for the very long post, following is the text of  the AG’s prepared remarks with a few pleasantries edited out.

I have also highlighted a few paragraphs which I consider particularly important.  The Attorney-General deserves our close reading of his full argument in context.  But regular readers will not be surprised I remain concerned about the power of the executive to intentionally use lethal force against a citizen without judicial review.

Previous posts on this issue include: Killing a Fellow Citizen and Persons and Due Process, Terrorism and War

–+–

ERIC H. HOLDER, ATTORNEY-GENERAL OF THE UNITED STATES, SPEAKING IN CHICAGO, ILLINOIS, MONDAY, MARCH 5, 2012:

I’m grateful for the opportunity to join with you in discussing a defining issue of our time – and a most critical responsibility that we share: how we will stay true to America’s founding – and enduring – promises of security, justice and liberty.

Since this country’s earliest days, the American people have risen to this challenge – and all that it demands.   But, as we have seen – and as President John F. Kennedy may have described best – “In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger.”

Half a century has passed since those words were spoken, but our nation today confronts grave national security threats that demand our constant attention and steadfast commitment.   It is clear that, once again, we have reached an “hour of danger.”

We are a nation at war.  And, in this war, we face a nimble and determined enemy that cannot be underestimated.

Like President Obama – and my fellow members of his national security team – I begin each day with a briefing on the latest and most urgent threats made against us in the preceding 24 hours.  And, like scores of attorneys and agents at the Justice Department, I go to sleep each night thinking of how best to keep our people safe.

I know that – more than a decade after the September 11th attacks; and despite our recent national security successes, including the operation that brought to justice Osama bin Laden last year – there are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders.   Disrupting and preventing these plots – and using every available and appropriate tool to keep the American people safe – has been, and will remain, this Administration’s top priority.

But just as surely as we are a nation at war, we also are a nation of laws and values.  Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals.   Not only is this the right thing to do – history has shown that it is also the most effective approach we can take in combating those who seek to do us harm.

This is not just my view.   My judgment is shared by senior national security officials across the government.   As the President reminded us in 2009, at the National Archives where our founding documents are housed, “[w]e uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps us safe.   Time and again, our values have been our best national security asset.”   Our history proves this.   We do not have to choose between security and liberty – and we will not.

Today, I want to tell you about the collaboration across the government that defines and distinguishes this Administration’s national security efforts.   I also want to discuss some of the legal principles that guide – and strengthen – this work, as well as the special role of the Department of Justice in protecting the American people and upholding the Constitution.

Before 9/11, today’s level of interagency cooperation was not commonplace.   In many ways, government lacked the infrastructure – as well as the imperative – to share national security information quickly and effectively.   Domestic law enforcement and foreign intelligence operated in largely independent spheres.   But those who attacked us on September 11th chose both military and civilian targets.   They crossed borders and jurisdictional lines.   And it immediately became clear that no single agency could address these threats, because no single agency has all of the necessary tools.

To counter this enemy aggressively and intelligently, the government had to draw on all of its resources – and radically update its operations.   As a result, today, government agencies are better postured to work together to address a range of emerging national security threats.   Now, the lawyers, agents and analysts at the Department of Justice work closely with our colleagues across the national security community to detect and disrupt terrorist plots, to prosecute suspected terrorists, and to identify and implement the legal tools necessary to keep the American people safe.   Unfortunately, the fact and extent of this cooperation are often overlooked in the public debate – but it’s something that this Administration, and the previous one, can be proud of.

As part of this coordinated effort, the Justice Department plays a key role in conducting oversight to ensure that the intelligence community’s activities remain in compliance with the law, and, together with the Foreign Intelligence Surveillance Court, in authorizing surveillance to investigate suspected terrorists.   We must – and will continue to – use the intelligence-gathering capabilities that Congress has provided to collect information that can save and protect American lives.   At the same time, these tools must be subject to appropriate checks and balances – including oversight by Congress and the courts, as well as within the Executive Branch – to protect the privacy and civil rights of innocent individuals.   This Administration is committed to making sure that our surveillance programs appropriately reflect all of these interests.

Let me give you an example.   Under section 702 of the Foreign Intelligence Surveillance Act, the Attorney General and the Director of National Intelligence may authorize annually, with the approval of the Foreign Intelligence Surveillance Court, collection directed at identified categories of foreign intelligence targets, without the need for a court order for each individual subject.   This ensures that the government has the flexibility and agility it needs to identify and to respond to terrorist and other foreign threats to our security.   But the government may not use this authority intentionally to target a U.S. person, here or abroad, or anyone known to be in the United States.

The law requires special procedures, reviewed and approved by the Foreign Intelligence Surveillance Court, to make sure that these restrictions are followed, and to protect the privacy of any U.S. persons whose nonpublic information may be incidentally acquired through this program.    The Department of Justice and the Office of the Director of National Intelligence conduct extensive oversight reviews of section 702 activities at least once every sixty days, and we report to Congress on implementation and compliance twice a year.   This law therefore establishes a comprehensive regime of oversight by all three branches of government.  Reauthorizing this authority before it expires at the end of this year is the top legislative priority of the Intelligence Community.

But surveillance is only the first of many complex issues we must navigate.   Once a suspected terrorist is captured, a decision must be made as to how to proceed with that individual in order to identify the disposition that best serves the interests of the American people and the security of this nation.

Much has been made of the distinction between our federal civilian courts and revised military commissions.   The reality is that both incorporate fundamental due process and other protections that are essential to the effective administration of justice – and we should not deprive ourselves of any tool in our fight against al Qaeda.

Our criminal justice system is renowned not only for its fair process; it is respected for its results.   We are not the first Administration to rely on federal courts to prosecute terrorists, nor will we be the last.   Although far too many choose to ignore this fact, the previous Administration consistently relied on criminal prosecutions in federal court to bring terrorists to justice.   John Walker Lindh, attempted shoe bomber Richard Reid, and 9/11 conspirator Zacarias Moussaoui were among the hundreds of defendants convicted of terrorism-related offenses – without political controversy – during the last administration.

Over the past three years, we’ve built a remarkable record of success in terror prosecutions.  For example, in October, we secured a conviction against Umar Farouk Abdulmutallab for his role in the attempted bombing of an airplane traveling from Amsterdam to Detroit on Christmas Day 2009.   He was sentenced last month to life in prison without the possibility of parole.  While in custody, he provided significant intelligence during debriefing sessions with the FBI.  He described in detail how he became inspired to carry out an act of jihad, and how he traveled to Yemen and made contact with Anwar al-Aulaqi, a U.S. citizen and a leader of al Qaeda in the Arabian Peninsula.   Abdulmutallab also detailed the training he received, as well as Aulaqi’s specific instructions to wait until the airplane was over the United States before detonating his bomb.

In addition to Abdulmutallab, Faizal Shahzad, the attempted Times Square bomber, Ahmed Ghailani, a conspirator in the 1998 U.S. embassy bombings in Kenya and Tanzania, and three individuals who plotted an attack against John F. Kennedy Airport in 2007, have also recently begun serving life sentences.   And convictions have been obtained in the cases of several homegrown extremists, as well.   For example, last year, United States citizen and North Carolina resident Daniel Boyd pleaded guilty to conspiracy to provide material support to terrorists and conspiracy to murder, kidnap, maim, and injure persons abroad; and U.S. citizen and Illinois resident Michael Finton pleaded guilty to attempted use of a weapon of mass destruction in connection with his efforts to detonate a truck bomb outside of a federal courthouse.

I could go on.   Which is why the calls that I’ve heard to ban the use of civilian courts in prosecutions of terrorism-related activity are so baffling, and ultimately are so dangerous.  These calls ignore reality.   And if heeded, they would significantly weaken – in fact, they would cripple – our ability to incapacitate and punish those who attempt to do us harm.

Simply put, since 9/11, hundreds of individuals have been convicted of terrorism or terrorism-related offenses in Article III courts and are now serving long sentences in federal prison.   Not one has ever escaped custody.   No judicial district has suffered any kind of retaliatory attack. These are facts, not opinions.   There are not two sides to this story.   Those who claim that our federal courts are incapable of handling terrorism cases are not registering a dissenting opinion — they are simply wrong.

But federal courts are not our only option.   Military commissions are also appropriate in proper circumstances, and we can use them as well to convict terrorists and disrupt their plots.   This Administration’s approach has been to ensure that the military commissions system is as effective as possible, in part by strengthening the procedural protections on which the commissions are based.   With the President’s leadership, and the bipartisan backing of Congress, the Military Commissions Act of 2009 was enacted into law.   And, since then, meaningful improvements have been implemented.

It’s important to note that the reformed commissions draw from the same fundamental protections of a fair trial that underlie our civilian courts.   They provide a presumption of innocence and require proof of guilt beyond a reasonable doubt.   They afford the accused the right to counsel – as well as the right to present evidence and cross-examine witnesses.   They prohibit the use of statements obtained through torture or cruel, inhuman, or degrading treatment.   And they secure the right to appeal to Article III judges – all the way to the United States Supreme Court.   In addition, like our federal civilian courts, reformed commissions allow for the protection of sensitive sources and methods of intelligence gathering, and for the safety and security of participants.

A key difference is that, in military commissions, evidentiary rules reflect the realities of the battlefield and of conducting investigations in a war zone.   For example, statements may be admissible even in the absence of Miranda warnings, because we cannot expect military personnel to administer warnings to an enemy captured in battle.   But instead, a military judge must make other findings – for instance, that the statement is reliable and that it was made voluntarily.

I have faith in the framework and promise of our military commissions, which is why I’ve sent several cases to the reformed commissions for prosecution.  There is, quite simply, no inherent contradiction between using military commissions in appropriate cases while still prosecuting other terrorists in civilian courts.   Without question, there are differences between these systems that must be – and will continue to be – weighed carefully.   Such decisions about how to prosecute suspected terrorists are core Executive Branch functions.   In each case, prosecutors and counterterrorism professionals across the government conduct an intensive review of case-specific facts designed to determine which avenue of prosecution to pursue.

Several practical considerations affect the choice of forum.

First of all, the commissions only have jurisdiction to prosecute individuals who are a part of al Qaeda, have engaged in hostilities against the United States or its coalition partners, or who have purposefully and materially supported such hostilities.   This means that there may be members of certain terrorist groups who fall outside the jurisdiction of military commissions because, for example, they lack ties to al Qaeda and their conduct does not otherwise make them subject to prosecution in this forum.   Additionally, by statute, military commissions cannot be used to try U.S. citizens.

Second, our civilian courts cover a much broader set of offenses than the military commissions, which can only prosecute specified offenses, including violations of the laws of war and other offenses traditionally triable by military commission.  This means federal prosecutors have a wider range of tools that can be used to incapacitate suspected terrorists.   Those charges, and the sentences they carry upon successful conviction, can provide important incentives to reach plea agreements and convince defendants to cooperate with federal authorities.

Third, there is the issue of international cooperation.   A number of countries have indicated that they will not cooperate with the United States in certain counterterrorism efforts — for instance, in providing evidence or extraditing suspects – if we intend to use that cooperation in pursuit of a military commission prosecution.   Although the use of military commissions in the United States can be traced back to the early days of our nation, in their present form they are less familiar to the international community than our time-tested criminal justice system and Article III courts.   However, it is my hope that, with time and experience, the reformed commissions will attain similar respect in the eyes of the world.

Where cases are selected for prosecution in military commissions, Justice Department investigators and prosecutors work closely to support our Department of Defense colleagues.  Today, the alleged mastermind of the bombing of the U.S.S. Cole is being prosecuted before a military commission.   I am proud to say that trial attorneys from the Department of Justice are working with military prosecutors on that case, as well as others.

And we will continue to reject the false idea that we must choose between federal courts and military commissions, instead of using them both.   If we were to fail to use all necessary and available tools at our disposal, we would undoubtedly fail in our fundamental duty to protect the Nation and its people.   That is simply not an outcome we can accept.

This Administration has worked in other areas as well to ensure that counterterrorism professionals have the flexibility that they need to fulfill their critical responsibilities without diverging from our laws and our values.   Last week brought the most recent step, when the President issued procedures under the National Defense Authorization Act.   This legislation, which Congress passed in December, mandated that a narrow category of al Qaeda terrorist suspects be placed in temporary military custody.

Last Tuesday, the President exercised his authority under the statute to issue procedures to make sure that military custody will not disrupt ongoing law enforcement and intelligence operations — and that an individual will be transferred from civilian to military custody only after a thorough evaluation of his or her case, based on the considered judgment of the President’s senior national security team.   As authorized by the statute, the President waived the requirements for several categories of individuals where he found that the waivers were in our national security interest.   These procedures implement not only the language of the statute but also the expressed intent of the lead sponsors of this legislation.   And they address the concerns the President expressed when he signed this bill into law at the end of last year.

Now, I realize I have gone into considerable detail about tools we use to identify suspected terrorists and to bring captured terrorists to justice.   It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.

This principle has long been established under both U.S. and international law.   In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups.   Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law.   The Constitution empowers the President to protect the nation from any imminent threat of violent attack.   And international law recognizes the inherent right of national self-defense.   None of this is changed by the fact that we are not in a conventional war.

Our legal authority is not limited to the battlefields in Afghanistan.   Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.   We are at war with a stateless enemy, prone to shifting operations from country to country.   Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan.  Our government has both a responsibility and a right to protect this nation and its people from such threats.

This does not mean that we can use military force whenever or wherever we want.  International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally.   But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.   This is not a novel concept.   In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board.   As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.

Some have called such operations “assassinations.”   They are not, and the use of that loaded term is misplaced.   Assassinations are unlawful killings.   Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad.   Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.  Where national security operations are at stake, due process takes into account the realities of combat.

Here, the interests on both sides of the scale are extraordinarily weighty.   An individual’s interest in making sure that the government does not target him erroneously could not be more significant.   Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face.   The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws.   So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.

Let me be clear:   an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.   As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties.   Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.   Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear.   Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.

Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question.   It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel.   Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack.   In that case, our government has the clear authority to defend the United States with lethal force.

Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force.   The principle of necessity requires that the target have definite military value.   The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally.   Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage.   Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

These principles do not forbid the use of stealth or technologically advanced weapons.   In fact, the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimized or avoided altogether.

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.   This is simply not accurate.   “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.   The Constitution guarantees due process, not judicial process.

The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history.   Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time.   The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.

That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight.   Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.

Now, these circumstances are sufficient under the Constitution for the United States to use lethal force against a U.S. citizen abroad – but it is important to note that the legal requirements I have described may not apply in every situation – such as operations that take place on traditional battlefields.

The unfortunate reality is that our nation will likely continue to face terrorist threats that – at times – originate with our own citizens.   When such individuals take up arms against this country – and join al Qaeda in plotting attacks designed to kill their fellow Americans – there may be only one realistic and appropriate response.   We must take steps to stop them – in full accordance with the Constitution.   In this hour of danger, we simply cannot afford to wait until deadly plans are carried out – and we will not.

This is an indicator of our times – not a departure from our laws and our values.   For this Administration – and for this nation – our values are clear.   We must always look to them for answers when we face difficult questions, like the ones I have discussed today.   As the President reminded us at the National Archives, “our Constitution has endured through secession and civil rights, through World War and Cold War, because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way.”

Our most sacred principles and values – of security, justice and liberty for all citizens – must continue to unite us, to guide us forward, and to help us build a future that honors our founding documents and advances our ongoing – uniquely American – pursuit of a safer, more just, and more perfect union.   In the continuing effort to keep our people secure, this Administration will remain true to those values that inspired our nation’s founding and, over the course of two centuries, have made America an example of strength and a beacon of justice for all the world. This is our pledge.

Thank you for inviting me to discuss these important issues with you today.

February 23, 2012

Jeh Johnson on the belligerent citizen

Filed under: Legal Issues,Radicalization,Terrorist Threats & Attacks — by Philip J. Palin on February 23, 2012

The DOD General Counsel spoke at Yale on Wednesday evening.   According to CNN:

The targeted killing of those suspected of engaging in terrorist activities against the United States, including American citizens, is justified and legal, according to the Defense Department’s chief lawyer.

Pentagon general counsel Jeh Johnson is the first government lawyer to officially weigh in on the legal justification for killing a U.S. citizen since American born Yemeni cleric Anwar al-Awlaki was killed by a CIA missile fired from an unmanned aerial vehicle last September.

In comments Wednesday night during a speech at Yale University, Johnson made no mention by name of al-Awlaki or the classified CIA drone program.

“Belligerents who also happen to be U.S. citizens do not enjoy immunity where non-citizen belligerents are valid military objectives,” Johnson said.

Benjamin Wittes at the Lawfare blog provides a transcript of Mr. Johnson’s prepared remarks.

 

January 2, 2012

NDAA is law: President’s statement

Filed under: Congress and HLS,Legal Issues,Radicalization — by Philip J. Palin on January 2, 2012

In prior posts I have argued against several provisions of the the National Defense Authorization Act.  On New Year’s Eve, the President signed the legislation.  It is now law.

I am not concerned — have never been concerned — about the immediate implications of the law.  I am deeply concerned regarding how it may be applied at some future date.  I am saddened by what overwhelming, bipartisan passage of the law seems to say regarding Congressional commitment to the foundations of freedom extending at least to the Magna Carta.  That the executive has chosen to accept the gift of additional power is not surprising, this is the innate tendency of the executive.  That the legislature has enthusiastically authorized such extraordinary power is profoundly troubling.  The current executive promises to exercise restraint. In a future crisis, how may a less reluctant executive choose to exercise this power?

Following is a statement by the President on his decision.

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Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.

Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.” This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

My Administration will design the implementation procedures authorized by section 1022(c) to provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law. And I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not limited to seeking the revision or repeal of provisions should they prove to be unworkable.

Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.

Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This hinders the executive’s ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles. The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.

Section 1029 requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals. I sign this based on the understanding that apart from detainees held by the military outside of the United States under the 2001 Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section 1022 before the Justice Department files charges or seeks an indictment. Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference. Moreover, section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement section 1029 in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.

Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia. Section 1244 further specifies that this report include a detailed description of the classified information to be provided. While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President’s constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems. Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments. Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.

My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning. My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.

BARACK OBAMA
THE WHITE HOUSE,
December 31, 2011.

 

December 15, 2011

National Defense Authorization Act FY2012: An obscure and likely danger

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on December 15, 2011

On Monday a House-Senate conference reported out compromise language for the FY2012 National Defense Authorization Act.  Last night, Wednesday, the House passed the conference-approved version.  The vote was 283 to 186, with Republican libertarians and Democratic liberals sharing the minority.

As previously posted at Homeland Security Watch, the separate House and Senate versions of the legislation included provisions that had caused the President to threaten a veto.  As I write this on Wednesday night, the White House has, according to CNN, decided not to veto what emerged from the conference.

I have not yet been able to secure a copy of the conference language.  It’s certainly out there and I have just not had time to look in the right place. (It’s been a tough week.)  Following is the language adopted by the Senate that causes me the greatest concern:

(a) IN GENERAL. — Congress affirms that the authority of the President to use all necessary and appropriate  force pursuant to the Authorization for Use of Military Force (Public Law 107–40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) COVERED PERSONS.—A covered person under this section is any person as follows:(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks. (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following: (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force. (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–25 84)).428† S 1867 ES1 (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction. (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

This executive authority is evidently extended even to citizens.  Again, I have not seen the conference language.  I hope there has been a substantive change.

But if not, and news reports suggest this section was not substantively changed, a citizen whom the Executive — on its own authority — determines has “substantially supported” a group that the executive has determined — on its own authority — is “associated” with Al-Qaeda or the Taliban, can be held without trial until the end of hostilities.  No judicial review limits this power.  Nothing  but the Executive’s good faith and wisdom stands between a person and unlimited detention… until the end of hostilities.

There are other provisions of the Act worth active concern.  But I have read and re-read this language and thought and re-thought the last ten years (3000 years) and I cannot fathom why any Congress would give any President this kind of authority.

If the President does not veto — and from a purely political perspective he should not veto — I find it hard to imagine the detention of a citizen under the Act being allowed to stand by the Supreme Court.   It was, after all, Justice Scalia who wrote in Hamdi v. Rumsfeld, “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

But then a few years ago I would not have imagined such a measure ever moving beyond a quick burial by Congressional committee.

I see no clear and present danger suddenly springing from the law’s passage.  But that the House and Senate in Congress assembled adopted this legislation — overwhelmingly — and a President will apparently sign it,  ought be noted by future historians with keen interest.  I hope those future scholars will have cause to claim the body-politic soon recovered its courage and sense of constitutional integrity.

–+–

I am posting this quickly — perhaps too quickly — as a matter of keen personal interest.  I have not had the time to research this as fully as I would like and my schedule for the next several days may not allow me to participate in discussion.  It is a good time to tear me to shreds.  I will not be around to defend myself. But especially because I will not be in a position to post, I welcome your informed corrections.

–+–

UPDATE

Please see comments for link to conference language.

Please also see commentary by Glenn Greenwald providing substantive analysis of the actual legislation, another contribution from a reader.

December 12, 2011

Locking up terrorists…but not in Guantánamo

Filed under: Legal Issues — by Arnold Bogis on December 12, 2011

This past weekend the New York Times published reporter Scott Shane’s investigation into the domestic system of detention for those convicted of terrorism.  It turns out Guantanamo, and military tribunals, are far from the full story when it comes to locking up terrorists:

In recent weeks, Congress has reignited an old debate, with some arguing that only military justice is appropriate for terrorist suspects. But military tribunals have proved excruciatingly slow and imprisonment at Guantánamo hugely costly — $800,000 per inmate a year, compared with $25,000 in federal prison.

The criminal justice system, meanwhile, has absorbed the surge of terrorism cases since 2001 without calamity, and without the international criticism that Guantánamo has attracted for holding prisoners without trial.

The numbers involved are eye-opening, even considering what I consider the generally inflated reporting on every far-fetched plot broken up in the planning stages (not to say there haven’t been serious threats, but to point out that groups that ask for boots from their FBI informant are likely not an imminent threat to blow up the Sears Tower):

Big numbers. Today, 171 prisoners remain at Guantánamo. As of Oct. 1, the federal Bureau of Prisons reported that it was holding 362 people convicted in terrorism-related cases, 269 with what the bureau calls a connection to international terrorism — up from just 50 in 2000. An additional 93 inmates have a connection to domestic terrorism.

Lengthy sentences. Terrorists who plotted to massacre Americans are likely to die in prison. Faisal Shahzad, who tried to set off a car bomb in Times Square in 2010, is serving a sentence of life without parole at the Supermax, as are Zacarias Moussaoui, a Qaeda operative arrested in 2001, and Mr. Reid, the shoe bomber, among others. But many inmates whose conduct fell far short of outright terrorism are serving sentences of a decade or more, the result of a calculated prevention strategy to sideline radicals well before they could initiate deadly plots.

The conduct of those responsible for operating these detention centers is also called into question (for a summary of the issues involved, see this HSPI/CIAG joint report “Getting Ahead of Prisoner Radicalization”:

Special units. Since 2006, the Bureau of Prisons has moved many of those convicted in terrorism cases to two special units that severely restrict visits and phone calls. But in creating what are Muslim-dominated units, prison officials have inadvertently fostered a sense of solidarity and defiance, and set off a long-running legal dispute over limits on group prayer. Officials have warned in court filings about the danger of radicalization, but the Bureau of Prisons has nothing comparable to the deradicalization programs instituted in many countries.

Both the Obama administration and Republicans in Congress often cite the threat of homegrown terrorism. But the Bureau of Prisons has proven remarkably resistant to outside scrutiny of the inmates it houses, who might offer a unique window on the problem.

In 2009, a group of scholars proposed interviewing people imprisoned in terrorism cases about how they took that path. The Department of Homeland Security approved the proposal and offered financing. But the Bureau of Prisons refused to grant access, saying the project would require too much staff time.

“There’s a huge national debate about how dangerous these people are,” said Gary LaFree, director of a national terrorism study center at the University of Maryland, who was lead author of the proposal. “I just think, as a citizen, somebody ought to be studying this.”

The article addresses the basic issue of the tradeoff between security and justice, and in my mind clearly comes out on the side of justice.  The reporter gives his story several faces in his exploration of a few cases.  The convicted, as well as their family and friends, can be read as arguing that sentences were too heavy for the infractions involved.  However there does not seem to be any true miscarriages of justice.  No innocent individual convicted on terrorism-related charges that in some way were not connected with the activities of which they were accused.  I do not believe that true justice has been carried out in every domestic terrorism case, history of the wrongly convicted in other criminal areas is too overwhelming.  Considering law enforcement’s focus on terrorism, perhaps the term near-hysteria could be applied for that period following shortly after 9/11 where a sleeper cell was suspected in every town, that the scales of justice do not appear dangerously unbalanced is of some relief.

The other important that emerges from this story is that our existing justice system appears up to the task of dealing with the issue of terrorism.  Compared against the costs and success of military tribunals and incarceration at Guantanamo, it should be a no-brainer to depend on domestic prisons and existing civilian judicial instruments.  Unfortunately, that is not happening.

December 2, 2011

525,600 minutes – how do you measure, measure a year? In daylights, in sunsets, in midnights, in cups of coffee. In inches, in miles, in laughter, in strife.

Filed under: Legal Issues,Preparedness and Response,Strategy — by Philip J. Palin on December 2, 2011

Can homeland security be measured? Consider a couple of possibilities:

One current project is concerned with supply chain resilience.  What is a resilient supply chain?  How does it behave?  How does it deal with threats and vulnerabilities?  According to interviews with senior supply chain owners, operators, and various experts no one has visibility over any single supply chain, much less the entire Supply Chain (like God, capitalized).  A supply chain seems to work best when it is widely distributed among several sometimes-competing, sometimes-collaborating players  who may or may not share what they know.  The Supply Chain is a complex adaptive system beyond measuring or managing in anything like a traditional understanding of these terms.

A second project is concerned with deterrence.  Is deterrence a short-term or long-term outcome? How is it achieved?  It seems to be the outcome of how positive and negative sanctions are applied to a well-defined audience for a specific purpose, often at a particular time-and-place.   Is there any way to accurately predict what mix of positive-and-negative, time-and-place will be most effective?  How do you measure absence? Isn’t this what deterrence means, the absence of something unwanted?  Almost everyone agrees that deterrence is an affective outcome, it is most effective when it influences motivations and unconscious tendencies.  How do you measure progress toward such a goal?  What does success look like?

It is reasonably clear and widely accepted that supply chain resilience and deterrence are each sub-elements of homeland security. Yet I am not at all sure how any of the three,  including homeland security, are to be defined — to be made finite — and thereby measurable (as traditionally understood).

I believe homeland security (as a practice, perhaps even a weird sort of verb), if effective, produces a public good called homeland security (a noun).  How do we assess such effectiveness?

Elinor Ostrom, the 2009 Nobel Laureate in Economics writes,

The task of measuring performance in the production of public goods will not yield to simple calculations.  Performance measurement depends instead on estimates in which indicators or proxy measure are used as estimates of performance.  By utilizing multiple indicators, weak measures of performance can be developed even though direct measures of output are not feasible. Private goods are easier to measure, account for, and relate to cost-accounting procedures and management controls.

Private goods are easier to measure because we can exclude potential users from consumption.  The private good of shelter is measured by, in part, the number of homeless… those excluded from shelter.  How would we exclude consumption of effective deterrence? How would we exclude free-riding on effective supply chain resilience?  How would we exclude effective homeland security? Why would we exclude?

Despite the complications, Congress wants better performance measures. GAO is a principled and persistent advocate of performance measures.   Any senior official with the temerity to quote Dr. Ostrom would, I expect, be received rather skeptically in most Hill hearing rooms. Most “masters of disaster” would, in any case, welcome meaningful measures.  So we keep looking.

Recently a senior FEMA official pointed to a possible relationship between mid-term sales-tax revenues, long-term recovery, and resilience.   This made some intuitive sense. We were encouraged.

After a disaster sales-tax revenue almost always shows an immediate spike. For example,  according to the Tuscaloosa News in the month following the April 27 tornado, local sales tax revenue of $2.5 million was about $160,000 higher than the same period in 2010 and about $300,000 more than in 2009.

What about one year or more later?  Sales tax revenue is a leading indicator, the FEMA official argued, for a whole host of other indicators: population, recovery of the retail sector, sustainable government services, overall economic activity, and more.  If following the immediate spike there is a long-term slide in sales-tax receipts this is almost always evidence of non-resilience. The reverse is also true he suggested: stable or higher sales tax revenues signals a range of resilience.

According to the Greater New Orleans Community Data Center, “City of New Orleans sales tax collections for the first six months of 2011 are at $78.5 million — higher than any other six–month period post–Katrina, and only 2 percent lower than the same months in 2005.”  Taken alone this could seem a sign of extraordinary resilience, especially for a city with a considerably reduced population and in the midst of a deep national recession.

Other indicators are mixed:  New Orleans school enrollment is 63 percent pre-Katrina numbers and the rate of violent crime is 80 percent higher than the national average.  New Orleans has not seen the collapse in employment of other places in the nation, but the biggest employment sectors — energy, tourism, and shipping — are all in decline.

Is New Orleans struggling or strong?  Resilient or just hanging on until the next big one?

Greensburg, Kansas is widely celebrated as a premier example of resilience in its creative, courageous response to the May 2007 tornado that devastated the community.  Between 2009 and 2010 Kiowa County — Greensburg is the county seat — saw sales tax revenue grow about 3 percent.   Does this quantity fairly capture the resilience of Greensburg?

How do we measure homeland security?  As input or output, might be the next question.

There is a Hebrew word — transliterated as ‘esher — that is usually translated as happy or blessed. This is the noun form of a verb — transliterated as ‘asher — that means to advance, go straight, make progress.

Do we achieve the noun by experiencing the verb or is experiencing the noun what motivates the action?

“How blessed (‘esher) is the man who finds wisdom and the man who gains understanding. For her profit is better than the profit of silver and her gain better than fine gold. “(Proverbs 3:13-14)

Gold and silver can be precisely measured, valued, and excluded.  Wisdom is worth even more,  but resists unambiguous measurement.  I don’t think wisdom can be excluded (in the economic sense of the term), but it can certainly be elusive.

October 28, 2011

Persons and due process, terrorism and war

Filed under: Congress and HLS,Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on October 28, 2011

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment to the Constitution of the United States

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Because most readers of Homeland Security Watch are also  news-nerds you may have noticed we killed another US citizen recently. Abdulrahman al-Awlaki the sixteen year old son of Anwar al-Awlaki was killed during a drone attack in Yemen.   The young American was traveling with Ibrahim al-Banna, media chief of Al Qaeda in the Arabian Peninsula, the presumed target of the attack.

Abdulrahman al-Awlaki

Abdul had the bad luck of being in the wrong place at the wrong time, in the care of bad guys, and being the son of a very bad guy. As far as we know though, he was not directly involved in planning or implementing terrorist actions against the United States.  No legal action had been taken in his regard, certainly no Grand Jury indictment.

There are some rumors (but only rumors) that al-Banna was taking Abdul and a 17 year-old cousin (also killed) to visit the remains of his father.

The US government does not officially comment on our drone operations in Yemen (or Pakistan).  While we have acknowledged the death of both father and son, we did not discuss the means or our involvement in the means.

–+–

I was surprised when reminded of the Bill of Rights use of “person” rather than “citizen.”   It has been an instructive surprise.

The differences between person and citizen have proliferated since the first amendments were adopted in 1791.   The French Revolution, the 14th Amendment, and increasing international mobility have all served to give enhanced attention to the  rights of citizenship.

But the Constitution still refers to persons.

The classical Latin persona was a  mask as used in Greek plays: A temporary and even misleading representation.  The early Christian church transformed our understanding of the word when Tertullian used it to explain the distinct “persons” of the Trinity.  Each person of the Trinity is a particular expression of an essential unity and substantive reality beyond the individual manifestation.

Through a complicated process of ecumenical councils, Medieval scholasticism, popular misunderstanding, and much more, Western culture came to view each individual as an expression of the divine.  This is the foundation of natural rights and the personhood of English Common Law.

The rise of nationalism has challenged the universalist claims of personhood.   Increasingly it is citizenship —  national identity — that matters, not some tendentious claim to being a child-of-God.

Congress is currently considering a new measure which would further diminish the personhood of non-citizens.    As adopted by the House of Representatives,  Section 1046 of the Defense Authorization Act reads,

After the date of the enactment of this Act, any foreign national, who–

(1) engages or has engaged in conduct constituting an offense relating to a terrorist attack against persons or property in the United States or against any United States Government property or personnel outside the United States; and

(2) is subject to trial for that offense by a military commission under chapter 47A of title 10, United States Code;

shall be tried for that offense only by a military commission under that chapter.

This section is causing consternation among some Senators and administration officials. The General Counsel for the Department of Defense has critiqued this legislation as follows:

Section 1046 of the House bill imposes an across-the-board requirement that, if military commissions jurisdiction exists to prosecute an individual, we must use commissions, not the federal courts, for the prosecution of a broad range of terrorist acts. Decisions about the most appropriate forum inwhich to prosecute a terrorist should be left, case-by-case, to prosecutors and national security professionals. The considerations that go into those decisions include the offenses available in both systems for prosecuting a particular course of conduct, the weight and nature of the evidence, and the likely prison sentence that would result if there is a conviction. A flat legislative ban on the use of one system – whether it is commissions or the civilian courts — in favor of the other is not the answer.

A weak procedural critique, it seems to me.

Since the Constitution was adopted “due process of law” has changed in a variety of ways.  Military commissions meet a minimum test of due process.  But it is very difficult to imagine James Madison smiling at the prospect of military officers being preferred as the agents of the judicial power set out in Article III.

–+–

We are increasingly inclined to treat non-citizens as non-persons.  Our rights are less and less a matter of the dignity due any child of God.   For many, a non-citizen obviously does not deserve the rights of a citizen.  The non-citizen is inherently other and the other is innately a possible threat.  This is an entirely reasonable judgment based on a purely nationalist perspective.

Abdulrahman al-Awlaki, born in Colorado, fan of The Simpsons and Harry Potter, was a citizen.  Some would claim he was also a suspect other and potential threat.   His personhood?  His citizenship?  Nice abstractions for a courtroom perhaps, but distractions in the midst of deadly conflict… others would argue.

I am concerned that as the source of our rights shift from existential personhood to instrumental citizenship our sense of shared identity and common dignity is diminished and the very concept of fundamental rights is weakened.

The Constitution still refers to persons.

September 18, 2011

Brennan: Counterterrorism and the Law

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on September 18, 2011

Friday evening John Brennan, Assistant to the President for Homeland Security and Counterterrorism, spoke to the Program on Law and Security at Harvard Law School.  Below is the full  transcript, with a few pleasantries taken off the top.

–+–

Now, I am not a lawyer, despite Dan’s best efforts.  I am the President’s senior advisor on counterterrorism and homeland security.  And in this capacity—and during more than thirty years working in intelligence and on behalf of our nation’s security—I’ve developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe.  It’s an appreciation of course, understood by President Obama, who, as you may know, once spent a little time here.  That’s what I want to talk about this evening—how we have strengthened, and continue to strengthen, our national security by adhering to our values and our laws.

Obviously, the death of Usama Bin Laden marked a strategic milestone in our effort to defeat al-Qa’ida.  Unfortunately, Bin Laden’s death, and the death and capture of many other al-Qa’ida leaders and operatives, does not mark the end of that terrorist organization or its efforts to attack the United States and other countries.  Indeed, al-Qa’ida, its affiliates and its adherents remain the preeminent security threat to our nation.

The core of al-Qa’ida—its leadership based in Pakistan—though severely crippled, still retains the intent and capability to attack the United States and our allies. Al-Qa’ida’s affiliates—in places like Pakistan, Yemen, and countries throughout Africa—carry out its murderous agenda. And al-Qa’ida adherents – individuals, sometimes with little or no contact with the group itself – have succumbed to its hateful ideology and work to facilitate or conduct attacks here in the United States, as we saw in the tragedy at Fort Hood.

Guiding principles

In the face of this ongoing and evolving threat, the Obama Administration has worked to establish a counterterrorism framework that has been effective in enhancing the security of our nation.  This framework is guided by several core principles.

First, our highest priority is – and always will be – the safety and security of the American people.  As President Obama has said, we have no greater responsibility as a government.

Second, we will use every lawful tool and authority at our disposal.  No single agency or department has sole responsibility for this fight because no single department or agency possesses all the capabilities needed for this fight.

Third, we are pragmatic, not rigid or ideological – making decisions not based on preconceived notions about which action seems “stronger,” but based on what will actually enhance the security of this country and the safety of the American people.  We address each threat and each circumstance in a way that best serves our national security interests, which includes building partnerships with countries around the world.

Fourth—and the principle that guides all our actions, foreign and domestic—we will uphold the core values that define us as Americans, and that includes adhering to the rule of law.  And when I say “all our actions,” that includes covert actions, which we undertake under the authorities provided to us by Congress.  President Obama has directed that all our actions—even when conducted out of public view—remain consistent with our laws and values.

For when we uphold the rule of law, governments around the globe are more likely to provide us with intelligence we need to disrupt ongoing plots, they’re more likely to join us in taking swift and decisive action against terrorists, and they’re more likely to turn over suspected terrorists who are plotting to attack us, along with the evidence needed to prosecute them.

When we uphold the rule of law, our counterterrorism tools are more likely to withstand the scrutiny of our courts, our allies, and the American people.  And when we uphold the rule of law it provides a powerful alternative to the twisted worldview offered by al-Qa’ida.  Where terrorists offer injustice, disorder and destruction, the United States and its allies stand for freedom, fairness, equality, hope, and opportunity.

In short, we must not cut corners by setting aside our values and flouting our laws, treating them like luxuries we cannot afford.  Indeed, President Obama has made it clear—we must reject the false choice between our values and our security. We are constantly working to optimize both.  Over the past two and a half years, we have put in place an approach—both here at home and abroad—that will enable this Administration and its successors, in cooperation with key partners overseas, to deal with the threat from al-Qa’ida, its affiliates, and its adherents in a forceful, effective and lasting way.

In keeping with our guiding principles, the President’s approach has been pragmatic—neither a wholesale overhaul nor a wholesale retention of past practices.  Where the methods and tactics of the previous administration have proven effective and enhanced our security, we have maintained them.  Where they did not, we have taken concrete steps to get us back on course.

Unfortunately, much of the debate around our counterterrorism policies has tended to obscure the extraordinary progress of the past few years.  So with the time I have left, I want to touch on a few specific topics that illustrate how our adherence to the rule of law advances our national security.

Nature and geographic scope of the conflict

First, our definition of the conflict.  As the President has said many times, we are at war with al-Qa’ida. In an indisputable act of aggression, al-Qa’ida attacked our nation and killed nearly 3,000 innocent people.  And as we were reminded just last weekend, al-Qa’ida seeks to attack us again.  Our ongoing armed conflict with al-Qa’ida stems from our right—recognized under international law—to self defense.

An area in which there is some disagreement is the geographic scope of the conflict.  The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to “hot” battlefields like Afghanistan.  Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time.  And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.

That does not mean we can use military force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.

Others in the international community—including some of our closest allies and partners—take a different view of the geographic scope of the conflict, limiting it only to the “hot” battlefields.  As such, they argue that, outside of these two active theatres, the United States can only act in self-defense against al-Qa’ida when they are planning, engaging in, or threatening an armed attack against U.S. interests if it amounts to an “imminent” threat.

In practice, the U.S. approach to targeting in the conflict with al-Qa’ida is far more aligned with our allies’ approach than many assume.  This Administration’s counterterrorism efforts outside of Afghanistan and Iraq are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces.  Practically speaking, then, the question turns principally on how you define “imminence.”

We are finding increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts.  After all, al-Qa’ida does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks.  Nonetheless, it possesses the demonstrated capability to strike with little notice and cause significant civilian or military casualties.  Over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an “imminent” attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.

The convergence of our legal views with those of our international partners matters.  The effectiveness of our counterterrorism activities depends on the assistance and cooperation of our allies—who, in ways public and private, take great risks to aid us in this fight.  But their participation must be consistent with their laws, including their interpretation of international law.  Again, we will never abdicate the security of the United States to a foreign country or refrain from taking action when appropriate.  But we cannot ignore the reality that cooperative counterterrorism activities are a key to our national defense.  The more our views and our allies’ views on these questions converge, without constraining our flexibility, the safer we will be as a country.

Privacy and transparency at home

We’ve also worked to uphold our values and the rule of law in a second area—our policies and practices here at home. As I said, we will use all lawful tools at our disposal, and that includes authorities under the renewed PATRIOT Act.  We firmly believe that our intelligence gathering tools must enable us to collect the information we need to protect the American people.  At the same time, these tools must be subject to appropriate oversight and rigorous checks and balances that protect the privacy of innocent individuals.

As such, we have ensured that investigative techniques in the United States are conducted in a manner that is consistent with our laws and subject to the supervision of our courts.  We have also taken administrative steps to institute additional checks and balances, above and beyond what is required by law, in order to better safeguard the privacy rights of innocent Americans.

Our democratic values also include—and our national security demands—open and transparent government.  Some information obviously needs to be protected.  And since his first days in office, President Obama has worked to strike the proper balance between the security the American people deserve and the openness our democratic society expects.

In one of his first acts, the President issued a new Executive Order on classified information that, among other things, reestablished the principle that all classified information will ultimately be declassified.  The President also issued a Freedom of Information Act Directive mandating that agencies adopt a presumption of disclosure when processing requests for information.

The President signed into law the first intelligence authorization act in over five years to ensure better oversight of intelligence activities.  Among other things, the legislation revised the process for reporting sensitive intelligence activities to Congress and created an Inspector General for the Intelligence Community.

For the first time, President Obama released the combined budget of the intelligence community, and reconstituted the Intelligence Oversight Board, an important check on the government’s intelligence activities.  The President declassified and released legal memos that authorized the use, in early times, of enhanced interrogation techniques.  Understanding that the reasons to keep those memos secret had evaporated, the President felt it was important for the American people to understand how those methods came to be authorized and used.

The President, through the Attorney General, instituted a new process to consider invocation of the so-called “state secrets privilege,” where the government can protect information in civil lawsuits.  This process ensures that this privilege is never used simply to hide embarrassing or unlawful government activities.  But, it also recognizes that its use is absolutely necessary in certain cases for the protection of national security.  I know there has been some criticism of the Administration on this.  But by applying a stricter internal review process, including a requirement of personal approval by the Attorney General, we are working to ensure that this extraordinary power is asserted only when there is a strong justification to do so.

Detention and interrogation

We’ve worked to uphold our values and the rule of law in a third area—the question of how to deal with terrorist suspects, including the significant challenge of how to handle suspected terrorists who were already in our custody when this Administration took office.  There are few places where the intersection of our counterterrorism efforts, our laws, and our values come together as starkly as it does at the prison at Guantánamo.  By the time President Obama took office, Guantánamo was viewed internationally as a symbol of a counterterrorism approach that flouted our laws and strayed from our values, undercutting the perceived legitimacy—and therefore the effectiveness—of our efforts.

Aside from the false promises of enhanced security, the purported legality of depriving detainees of their rights was soundly and repeatedly rejected by our courts.  It came as no surprise, then, that before 2009 few counterterrorism proposals generated as much bipartisan support as those to close Guantánamo.  It was widely recognized that the costs associated with Guantánamo ran high, and the promised benefits never materialized.

That was why—as Dan knows so well—on one of his first days in office, President Obama issued the executive order to close the prison at Guantánamo. Yet, almost immediately, political support for closure waned.  Over the last two years Congress has placed unprecedented restrictions on the discretion of our experienced counterterrorism professionals to prosecute and transfer individuals held at the prison.  These restrictions prevent these professionals—who have carefully studied all of the available information in a particular situation—from exercising their best judgment as to what the most appropriate disposition is for each individual held there.

The Obama Administration has made its views on this clear. The prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.  For all of the reasons mentioned above, we will not send more individuals to the prison at Guantánamo.  And we continue to urge Congress to repeal these restrictions and allow our experienced counterterrorism professionals to have the flexibility they need to make individualized, informed decisions about where to bring terrorists to justice and when and where to transfer those whom it is no longer in our interest to detain.

This Administration also undertook an unprecedented review of our detention and interrogation practices and their evolution since 2001, and we have confronted squarely the question of how we will deal with those we arrest or capture in the future, including those we take custody of overseas.  Nevertheless, some have suggested that we do not have a detention policy; that we prefer to kill suspected terrorists, rather than capture them.  This is absurd, and I want to take this opportunity to set the record straight.

As a former career intelligence professional, I have a profound appreciation for the value of intelligence.  Intelligence disrupts terrorist plots and thwarts attacks.  Intelligence saves lives.  And one of our greatest sources of intelligence about al-Qa’ida, its plans, and its intentions has been the members of its network who have been taken into custody by the United States and our partners overseas.

So I want to be very clear—whenever it is possible to capture a suspected terrorist, it is the unqualified preference of the Administration to take custody of that individual so we can obtain information that is vital to the safety and security of the American people.  This is how our soldiers and counterterrorism professionals have been trained.  It is reflected in our rules of engagement.  And it is the clear and unambiguous policy of this Administration.

Now, there has been a great deal of debate about the best way to interrogate individuals in our custody.  It’s been suggested that getting terrorists to talk can be accomplished simply by withholding Miranda warnings or subjecting prisoners to so-called “enhanced interrogation techniques.”  It’s also been suggested that prosecuting terrorists in our federal courts somehow impedes the collection of intelligence.  A long record of experience, however, proves otherwise.

Consistent with our laws and our values, the President unequivocally banned torture and other abusive interrogation techniques, rejecting the claim that these are effective means of interrogation.  Instead, we have focused on what works.  The President approved the creation of a High-Value Detainee Interrogation Group, or HIG, to bring together resources from across the government – experienced interrogators, subject matter experts, intelligence analysts, and linguists – to conduct or assist in the interrogation of those terrorists with the greatest intelligence value – both at home and overseas.  Through the HIG, we have brought together the capabilities that are essential to effective interrogation, and ensured they can be mobilized quickly and in a coordinated fashion.

Claims that Miranda warnings undermine intelligence collection ignore decades of experience to the contrary.  Yes, some terrorism suspects have refused to provide information in the criminal justice system, but so have many individuals held in military custody, from Afghanistan to Guantánamo, where Miranda warnings were not given.  What is undeniable is that many individuals in the criminal justice system have provided a great deal of information and intelligence—even after being given their Miranda warnings.  The real danger is failing to give a Miranda warning in those circumstances where it’s appropriate, which could well determine whether a terrorist is convicted and spends the rest of his life behind bars, or is set free.

Moreover, the Supreme Court has recognized a limited exception to Miranda, allowing statements to be admitted if the unwarned interrogation was “reasonably prompted by a concern for public safety.”  Applying this public safety exception to the more complex and diverse threat of international terrorism can be complicated, so our law enforcement officers require clarity.

Therefore, at the end of 2010, the FBI clarified its guidance to agents on use of the public safety exception toMiranda, explaining how it should apply to terrorism cases.  The FBI has acknowledged that this exception was utilized last year, including during the questioning of Faisal Shahzad, accused of attempting to detonate a car bomb in Times Square.  Just this week in a major terrorism case, a federal judge ruled that statements obtained under the public safety exception before the defendant was read his Miranda rights are, in fact, admissible at trial.

Some have argued that the United States should simply hold suspected terrorists in law of war detention indefinitely.  It is worth remembering, however, that, for a variety of reasons, reliance upon military detention for individuals apprehended outside of Afghanistan and Iraq actually began to decline precipitously years before the Obama Administration came into office.

In the years following the 9/11 attacks, our knowledge of the al-Qa’ida network increased and our tools with which to bring them to justice in federal courts or reformed military commissions were strengthened, thus reducing the need for long-term law of war detention.  In fact, from 2006 to the end of 2008, when the previous administration apprehended terrorists overseas and outside of Iraq and Afghanistan, it brought more of those individuals to the United States to be prosecuted  in our federal courts than it placed in long-term military detention at Guantánamo.

Article III courts & reformed military commissions

When we succeed in capturing suspected terrorists who pose a threat to the American people, our other critical national security objective is to maintain a viable authority to keep those individuals behind bars. The strong preference of this Administration is to accomplish that through prosecution, either in an Article III court or a reformed military commission.  Our decisions on which system to use in a given case must be guided by the factual and legal complexities of each case, and relative strengths and weaknesses of each system.  Otherwise, terrorists could be set free, intelligence lost, and lives put at risk.

That said, it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts.  As they should be.  Our military does not patrol our streets or enforce our laws—nor should it.

This is not a radical idea, nor is the idea of prosecuting terrorists captured overseas in our Article III courts.  Indeed, terrorists captured beyond our borders have been successfully prosecuted in our federal courts on many occasions. Our federal courts are time-tested, have unquestioned legitimacy, and, at least for the foreseeable future, are capable of producing a more predictable and sustainable result than military commissions. The previous administration, successfully prosecuted hundreds of suspected terrorists in our federal courts, gathering valuable intelligence from several of them that helped our counterterrorism professionals protect the American people.  In fact, every single suspected terrorist taken into custody on American soil—before and after the September 11th attacks—has first been taken into custody by law enforcement.

In the past two years alone, we have successfully interrogated several terrorism suspects who were taken into law enforcement custody and prosecuted, including Faisal Shahzad, Najibullah Zazi, David Headley, and many others.  In fact, faced with the firm but fair hand of the American justice system, some of the most hardened terrorists have agreed to cooperate with the FBI, providing valuable information about al-Qa’ida’s network, safe houses, recruitment methods, and even their plots and plans.  That is the outcome that all Americans should not only want, but demand from their government.

Similarly, when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.  There is bipartisan agreement that U.S. citizens should not be tried by military commission.  Since 2001, two U.S. citizens were held in military custody, and after years of controversy and extensive litigation, one was released; the other was prosecuted in federal court.  Even as the number of U.S. citizens arrested for terrorist-related activity has increased, our civilian courts have proven they are more than up to the job.

In short, our Article III courts are not only our single most effective tool for prosecuting, convicting, and sentencing suspected terrorists—they are a proven tool for gathering intelligence and preventing attacks.  For these reasons, credible experts from across the political spectrum continue to demand that our Article III courts remain an unrestrained tool in our counterterrorism toolbox.  And where our counterterrorism professionals believe prosecution in our federal courts would best protect the full range of U.S. security interests and the safety of the American people, we will not hesitate to use them.  The alternative—a wholesale refusal to utilize our federal courts—would undermine our values and our security.

At the same time, reformed military commissions also have their place in our counterterrorism arsenal.  Because of bipartisan efforts to ensure that military commissions provide all of the core protections that are necessary to ensure a fair trial, we have restored the credibility of that system and brought it into line with our principles and our values.  Where our counterterrorism professionals believe trying a suspected terrorist in our reformed military commissions would best protect the full range of U.S. security interests and the safety of the American people, we will not hesitate to utilize them to try such individuals.  In other words, rather than a rigid reliance on just one or the other, we will use both our federal courts and reformed military commissions as options for incapacitating terrorists.

As a result of recent reforms, there are indeed many similarities between the two systems, and at times, these reformed military commissions offer certain advantages.  But important differences remain—differences that can determine whether a prosecution is more likely to succeed or fail.

For example, after Ahmed Warsame—a member of al-Shabaab with close ties to al-Qa’ida in the Arabian Peninsula—was captured this year by U.S. military personnel, the President’s national security team unanimously agreed that the best option for prosecuting him was our federal courts, where, among other advantages, we could avoid significant risks associated with, and pursue additional charges not available in, a military commission.  And, if convicted of certain charges, he faces a mandatory life sentence.

In choosing between our federal courts and military commissions in any given case, this Administration will remain focused on one thing—the most effective way to keep that terrorist behind bars. The only way to do that is to let our experienced counterterrorism professionals determine, based on the facts and circumstances of each case, which system will best serve our national security interests.

In the end, the Obama Administration’s approach to detention, interrogation and trial is simple.  We have established a practical, flexible, results-driven approach that maximizes our intelligence collection and preserves our ability to prosecute dangerous individuals.  Anything less—particularly a rigid, inflexible approach—would be disastrous.  It would tie the hands of our counterterrorism professionals by eliminating tools and authorities that have been absolutely essential to their success.

Capacity building abroad

This brings me a final area where upholding the rule of law strengthens our security—our work with other nations.  As we have seen from Afghanistan in the 1990s to Yemen, Somalia and the tribal areas of Pakistan today, al-Qa’ida and its affiliates often thrive where there is disorder or where central governments lack the ability to effectively govern their own territory.

In contrast, helping such countries build a robust legal framework, coupled with effective institutions to enforce them and the transparency and fairness to sustain them, can serve as one of our most effective weapons against groups like al-Qa’ida by eliminating the very chaos that organization needs to survive.  That is why a key element of this Administration’s counterterrorism strategy is to help governments build their capacity, including a robust and balanced legal framework, to provide for their own security.

Though tailored to the unique circumstances of each country, we are working with countries in key locations to help them enact robust counterterrorism laws and establish the institutions and mechanisms to effectively enforce them.  The establishment of a functioning criminal justice system and institutions has played a key role in the security gains that have been achieved in Iraq.  We are working to achieve similar results in places like Afghanistan, Iraq, Yemen, Pakistan, and elsewhere.

These efforts are not a blank check.  As a condition of our funding, training, and cooperation, we require that our partners comply with certain legal and humanitarian standards.  At times, we have curtailed or suspended security assistance when these standards are not met.  We encourage these countries to build a more just, more transparent system that can gain the respect and support of their own people.

As we are seeing across the Middle East and North Africa today, courageous people will continue to demand one of the most basic universal rights—the right to live in a society that respects the rule of law.  Any security gains will be short-lived if these countries fail to provide just that. So where we see countries falling short of these basic standards, we will continue to support efforts of people to build institutions that both protect the rights of their own people and enhance our collective security.

Flexibility—critical to our success

In conclusion, I want to say again that the paramount responsibility of President Obama, and of those of us who serve with him, is to protect the American people.  To save lives.  Each of the tools I have discussed today, and the flexibility to apply them to the unique and complicated circumstances we face, are critical to our success.

This President’s counterterrorism framework provides a sustainable foundation upon which this Administration and its successors, in close cooperation with our allies and partners overseas, can effectively deal with the threat posed by al-Qa’ida and its affiliates and adherents.  It is, as I have said, a practical, flexible, result-driven approach to counterterrorism that is consistent with our laws, and in line with the very values upon which this nation was founded.  And the results we have been able to achieve under this approach are undeniable.  We divert from this path at own peril.

Yet, despite the successes that this approach has brought, some—including some legislative proposals in Congress—are demanding that we pursue a radically different strategy.  Under that approach, we would never be able to turn the page on Guantánamo.  Our counterterrorism professionals would be compelled to hold all captured terrorists in military custody, casting aside our most effective and time-tested tool for bringing suspected terrorists to justice—our federal courts.  Miranda warnings would be prohibited, even though they are at times essential to our ability to convict a terrorist and ensure that individual remains behind bars.  In sum, this approach would impose unprecedented restrictions on the ability of experienced professionals to combat terrorism, injecting legal and operational uncertainty into what is already enormously complicated work.

I am deeply concerned that the alternative approach to counterterrorism being advocated in some quarters would represent a drastic departure from our values and the body of laws and principles that have always made this country a force for positive change in the world.  Such a departure would not only risk rejection by our courts and the American public, it would undermine the international cooperation that has been critical to the national security gains we have made.

Doing so would not make us safer, and would do far more harm than good.  Simply put, it is not an approach we should pursue.  Not when we have al-Qa’ida on the ropes.  Our counterterrorism professionals—regardless of the administration in power—need the flexibility to make well-informed decisions about where to prosecute terrorist suspects.

To achieve and maintain the appropriate balance, Congress and the Executive Branch must continue to work together.  There have been and will continue to be many opportunities to do so in a way that strengthens our ability to defeat al-Qa’ida and its adherents.  As we do so, we must not tie the hands of our counterterrorism professionals by eliminating tools that are critical to their ability to keep our country safe.

As a people, as a nation, we cannot—and we must not—succumb to the temptation to set aside our laws and our values when we face threats to our security, including and especially from groups as depraved as al-Qa’ida.  We’re better than that.  We’re better than them.  We’re Americans.

Thank you all very much.

July 12, 2011

Slavery in America: “I slept with 103 men,” she says. “That is the worst day in my life.”

Filed under: Immigration,Legal Issues — by Christopher Bellavita on July 12, 2011

Slavery still defiles the United States.

By some estimates (including figures from the CIA) as many as 50,000 people “are trafficked into or transited through the U.S.A. annually as sex slaves, domestics, garment, and agricultural slaves.”

The State Department has a lower figure. A few years ago, they reported “that 14,500 to 17,500 people, primarily women and children, are trafficked to the U.S. annually.”

Other people think the problem may be less significant than the 50,000 figure makes it appear.

“The discrepancy between the alleged number of victims per year and the number of cases [authorities] been able to make is so huge that it’s got to raise major questions,” said one criminologist. “It suggests that this problem is being blown way out of proportion.”

Or maybe something else:

“The biggest problem that we have combating these [sex trafficking] cases,” [a DHS official said], “is that once they hear the words ‘Immigration and Customs Enforcement,’ they immediately run. They do not trust us. They immediately think we are going to deport them.”

————–

I read a story Monday about something called T Visas.  The Trafficking Victims Protection Act… allows undocumented human trafficking victims to receive nonimmigrant status under some conditions, including agreeing to cooperate with law enforcement.

According to people familiar with the program, very few people are familiar with the program — victims or officials.

“Since T Visas became available in 2002, the U.S. Bureau of Citizenship and Immigration Services has been authorized to issue up to 5,000 a year — or enough for 10 percent of the 50,000 men, women and children trafficked into the U.S. for prostitution and forced labor each year, according to the U.S. Department of Justice.”

In the last decade, about 2300 T Visas were issued; in 2010, 447 victims received visas.

(You can find out more about this Department of Homeland Security, U.S. Citizen and Immigration Service program at this link.)

————–

Azriel James Relph, an NBC News reporter, described how one person found out about the DHS, USCIS program.  Here is an extended excerpt:

On a recent sweltering afternoon, two women sat at a restaurant table in a small American town, sharing conversation and a cookie and keeping cool. The normally busy eatery was quiet, but even if it had been packed they would have been the oddest couple in the room – a woman who came to this country illegally and a U.S. Immigration and Customs Enforcement agent.

….

“How’s your back? Is it treating you OK?” asked the agent.

“Very, very good,” replied the woman across the table in a heavy South American accent.

We can’t tell you their actual names. Special Agent Jones, her gold badge clipped to her belt and and ICE logo on her black government-issue polo shirt, often works undercover. Naming her could blow that. And her companion, whom we’ll call Laura, is a crime victim. Using her real name or showing her face could give her tormentors all they need to retaliate.

They are both women in their 30s, but the gray streaks running through Laura’s dark hair are suggestions of the pain she has endured.

Laura is a victim of human trafficking who risked her safety by testifying against the man who brought her to this country and forced her to work as a sex slave for at least seven years. Special Agent Jones was a part of the team that saved her.

….

Laura can’t remember some details of her ordeal, including how long ago she was smuggled into the U.S. — somewhere between 10 and 12 years ago, she reckons. But others — like how she got here — are seared into her memory.

She met a man in her home country when she was in her 20s. He swept her off of her feet, and told her he loved her. She took him to meet her family. When he asked her to go to the U.S. for six months, they cautioned against it, but she was in love and couldn’t say no. They boarded a flight north and only then, on the airplane, did he lay out what he really had in mind for her.

“You’re going to the United States,” she remembers him telling her, “to work like a prostitute.” Laura said she wanted to scream for help, but he told her to remember that he knew where her family was. “I have a lot of friends and I know where everybody lives,” he threatened.

It was a cold winter night when she landed in Washington, D.C. The man passed her off to a couple who took her directly to an old house. She laid awake all night in shock, listening to rats scrape around. All she could think about was how she wanted to phone her family — if only someone in this unfamiliar and unfriendly place could help her make a call.

But Laura had no allies in this frightening new land. She was now an unwilling sex worker in brothels catering to immigrant Latinos in Washington, D.C., Maryland, Atlanta and New York. She remained the “property” of her trafficker, who arranged her movements, as well as those of other women and girls he lured to the U.S. with similar false promises.

She remembers one especially horrific night in Maryland. “I slept with 103 men,” she says. “That is the worst day in my life.”

And she was not alone. “I remember, he say, ‘You no make money, because the other women [had sex with] 130.’ A lot of people don’t believe it, and say ‘No, it’s impossible.’”

Not only is it possible, it happens all the time, all across America, according to Bradley Myles, executive director of Polaris Project, a nonprofit that operates the National Human Trafficking Resource Center.

“Basically there’s this whole sex trafficking network that exists in the United States, and it predominantly targets and victimizes women and children from Latin American countries,” Myles said.

Fear of incarceration due to her undocumented status and concern for the safety of her family kept Laura from attempting escape or contacting authorities. But one day, that fear turned into hope, when Special Agent Jones came through the brothel door.

Three years ago, after approximately eight months of surveillance and undercover investigation — including late-night stakeouts, digging through trash, getting evidence any way they could — Jones and fellow ICE agents approached a house on a quiet street in an average American suburb and knocked on the door. They knew that the front door was not shielding a family sitting around a dining room table discussing their day, but a brothel where women and girls as young as 14 were being forced to have sex with “Johns” who paid $25 for 15-minute sessions. The women and girls worked all day and night, and almost never saw a penny.

On the day of the raid, Laura sat on a couch in the living room, where men awaited their 15-minute sessions, watching television. After seven years in the brothels she was no longer in high demand. New women and girls were constantly being brought in. The younger and fresher the faces, the more popular they were with Johns. The man she had fallen for all those years before in her home country still found a use for her though; she worked as the maid for this brothel.

She heard a knock on the door, peered out the window and saw the police. She didn’t say anything — she just started to cry as she opened the door for them.

Laura said she hadn’t cried about her situation in years. “You know, at one point you can’t cry,” she said. “You cry no more.” But as she realized what was about to happen, the tears came rushing back. “Crying because I am too happy — not afraid — because I knew that this is over.”

What happened next is a blur, but she remembers that the first person she saw come through the door was Jones. The officers told her they had arrested her trafficker. She asked if she was going to jail. They told her no.

The years of slavery had taken a physical and emotional toll on Laura.

“When we rescued her she appeared substantially older than her age,” said Jones. “She had a lot of baggage. A lot of mental and emotional distraughtness.”

Jones hoped to secure her cooperation as the prosecution built its case against her trafficker and the network he was part of. But her captors had told Laura over and over not to trust law enforcement, and she had no idea if she could really believe anything that an ICE agent was telling her.

“When I first met Laura, she didn’t trust us,” said Jones. “She actually made the case harder by saying that the other women that we rescued were all doing it voluntarily, that her trafficker was innocent. But that is usually the way these victims have been brainwashed to believe. It’s classic Stockholm Syndrome.”

Jones was patient. As one of the oldest victims, Laura’s testimony was crucial to the case. She decided to show her what her trafficker had deprived her of, and give her a taste of freedom.

“So we put her in a position where she could continue to thrive and see where she’s going to go,” she said. She arranged for Laura to get temporary status to stay in the country legally. She put her in touch with a relief agency that helped her find work, housing and mental health care. As Laura started to heal, Jones stayed in touch and kept asking for her cooperation, promising that her newfound freedom could be permanent. But Laura continued to resist.

After three years, Laura finally walked into the courtroom where her trafficker sat — the man she once thought she loved — and testified about her ordeal.

“I remember the day, but I no remember what I say,” she said, “because I so nervous.”

Her trafficker was found guilty of human trafficking. He is in federal prison now, and after five years, he will be deported to his home country. He is also required to pay restitution to Laura and the other nine women and girls he was convicted of enslaving

Working human trafficking cases, Jones has found an even stronger connection to her work. “These girls can be anybody’s daughter, anybody’s sister,” she said. “When I look at these girls — that could have been me.”

————–

My first thought after I read this story was sometimes DHS gets it right.

I talked about this case with a friend who works for the federal government and who knows a lot about trafficking.  I asked him what he thought about the story.  Here’s what he said.

————–

Trafficking is one area the United States is getting more right than most places and one where we have demonstrated world-wide leadership.

DHS getting it right? Being that they have the lead, I suppose, but do we need a DHS to get this one right? Not so sure.

As a nation, the US really has driven the modern anti-trafficking movement. Fall of the Wall, Globalization, Explosion of Internet really brought it to light. It has been a bipartisan effort beginning with President Clinton, continued by President Bush under whom the Trafficking Victims Protection Act (TVPA) was signed into law, and since continued by President Obama.

Though it has been a bipartisan effort, the political left seems to focus more on forced labor and the political right on sex-trafficking.  The disparity can be so severe that our State Department under different party affiliations disagrees as to which is the greater cause of trafficking, by a wide amount.

But the US is not alone on the dispute as to what is trafficking. Much like discussions about what are inalienable human rights, there are still disagreements and a variety of different definitions for human trafficking world-wide.

On this point the US adopted the force, fraud, coercion, under 18 rubric for the TVPA.  There is no movement (across borders, state or national) required for human trafficking.

At first the TVPA required the State Department to rank all countries on their anti-trafficking efforts, and then tie US aid and funding to those efforts.

As you can imagine, this can become extremely political, very quickly; particularly in strategic parts of the world.

Initially, the US did not rate itself, but now it does. This is a good thing and has led to positive steps in the US.

There are Americans who believe we need strong international laws and that the US needs to buy into the laws. From that perspective, the US prescriptively set the bar and put people on notice regarding anti-trafficking efforts.

However, when we did that, very few states had human-trafficking laws on the books. In ten years, more than forty states put anti-trafficking laws on the books.  These laws complement the federal laws regarding trafficking. Penalties supporting these laws are much more severe.  This increases the cost criminals face doing business and is a legitimate part of doing business.

But it might lead one to say (much like the immigration laws) how can the feds and the states both have human trafficking laws? There are a lot of legal issues around that question, but it does create a gap.

It is true there is an apparent discrepancy between estimated trafficking numbers and actual criminal prosecutions brought.

I believe this is a result of the force, fraud, coercion requirement. Those are really hard things to prove save for the really egregious cases.

Look at the parties involved in the sex cases. Are the Johns going to appear as a fact witness? Of course not, we don’t even arrest them.

The women … I can’t even begin to put my mind around the psychological components to this: PTSD rates that are as high as combat veterans. They just want it to end.  They don’t care if someone is prosecuted or not. Think battered spouse.  Think rape victims.

My colleague just had a successful prosecution of a violent rape where the women failed to report it for over two years. She had been tasered and then raped, and she thought somehow she was to blame for being so foolish to get into that situation.

Many people make the argument that the women choose to get into the pay for sex game and then end up in a bad situation they choose not to get out of.  So they make two bad choices: getting into the game in the first place and then not walking away when they could. Thus, no force, fraud, or coercion, and no human trafficking, just bad choices.

I don’t know. On the labor side, one might similarly argue that a migrant worker knows they are coming to the US to work (the job may not be what they were promised or believed, but they know that is a reality).  They know it is illegal to do so.  They know they are going to be paid less than a US citizen.  They probably know it will be less than what they have been promised.  And they know their living conditions might be substandard.  No matter what they have been promised, they realize this.  Nevertheless, they still choose to come here and work because it beats the alternative.

Choices all around, right? Or force, fraud, and coercion?

DHS getting it right?

They are the current instrument.  The United States is getting it right.

 

 

 

February 24, 2011

Dirty Bombs, Al Jazeera, A Legal Manual for the Apocalypse, Oh My…

Filed under: General Homeland Security,International HLS,Legal Issues,Radiological & Nuclear Threats — by Arnold Bogis on February 24, 2011

A mixed bag of relatively recent homeland security items that may have escaped attention.

Dirty Bombs

The Newshour on PBS recently aired a short segment on “How Tough is it to Build a Dirty Bomb.”  If you are interested in a dirty bomb primer, you could do a whole lot worse.  The video and transcript can be found here:

http://www.pbs.org/newshour/bb/science/jan-june11/dirtybombs_02-08.html

The piece is a good, basic bit of reporting with an interesting interview with the man once referred to as the “Radioactive Boyscout.”  However, it would have been helpful if the reporter had pushed NYPD representatives to justify continued spending on the Securing the Cities effort instead of considering alternative means of dealing with the threat of dirty bombs.

Al Jazeera

During this tumultuous period in the Middle East, U.S. print and cable news services have scrambled to provide coverage in countries where they previously had little infrastructure.  In stark contrast, Al-Jazeera focuses its reporting on events in the region and was well positioned to respond to the string of fast breaking events.  However, very few U.S. cable companies carry the station and this led to a huge spike in traffic to Al Jazeera’s English website.

Some argue that the station is simply a platform for anti-U.S. and anti-Semitic views while others insist it is a serious news organization that allows distasteful commentators air time.  In a recent Boston Globe op-ed, former DHS Assistant Secretary Juliette Kayyem argues that the public should be allowed access to the vital reporting from that region Al Jazeera provides.  She acknowledges the less savory aspects of the station, but feels it should be left to the public to decide what and when to tune into any particular media.

This battle over cable access must be understood as a proxy for a broader lack of understanding between the United States and the region. Cable companies have no obligation to run programming, but their silence to the question “why no access’’ is a judgment, understood by the Arab world as a value-laden decision about America’s lack of desire to hear from the Arab world about the Arab world. In fact, the events in Tunisia and Egypt have been masterfully covered by the station, a news heavyweight in most of the world.

While US news corporations scrambled to get people and equipment to the region, AJE was already there, at the forefront of documenting the Egyptian government’s atrocities and demise, so much so that AJE’s offices in Egypt were raided and its journalists detained.

Could the existence of AJE on channel 203 or, if lucky, 114, upset American viewers? Yes. No doubt, if I watched long enough, I would find viewpoints expressed by commentators on Israel or the role of women that I find objectionable. But that basically describes my relationship with most cable news hosts, yet there they are, night after night.

James Zogby, in his book “Arab Voices,’’ highlights how American companies such as Cisco, Starbucks, and ExxonMobil have made important contributions to public diplomacy by shaping and promoting engagement in the Arab world. US cable companies ought to do the same by bringing a major player in the Arab world to American audiences.

Read the entire piece here: http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2011/02/14/let_us_see_al_jazeera/

Al Qaeda and Mideast Revolution

A question arising from Mideast turmoil for homeland security officials is the potential impact on Al Qaeda–both short and long term.  Paul Cruickshank addresses both the optimistic and pessimistic in a CNN.com opinion piece.

The short term:

Furthermore, the weakening of security services throughout the Arab world may allow jihadist groups like al Qaeda in the medium-term to rebuild capabilities, warns Noman Benotman, a former Libyan jihadist once personally acquainted with al Qaeda leaders, including Osama bin Laden and Ayman al Zawahiri.

“This is a make or break moment for al Qaeda,” said Benotman, now a senior analyst at the Quilliam Foundation, a UK counter-extremist think tank.

In the short term, Benotman says, al Qaeda will need to navigate strong countervailing winds. The clamor by protesters from North Africa to the Gulf for more democracy is hardly change al Qaeda can believe in.

“What we see playing out now is completely against what al Qaeda is preaching,” Benotman said.

The long term:

Benotman says that with the weakening of security services in some Arab countries, the greatest future opportunities may lie for jihadist groups with a narrow regional agenda rather than those like al Qaeda focused on attacking the United States and its Western allies.

According to Benotman, one of the groups that may try to rebuild its activities in Egypt is Zawahiri’s very own group: Egyptian Islamic Jihad.

In the long term, a successful democratic transition in the Arab world would arguably make the United States significantly safer from al Qaeda terrorism. The threat of attack would remain because, as September 11 illustrated, even a small group of dedicated individuals can create terrible carnage, and al Qaeda today continues to enjoy safe havens in Pakistan and Yemen from where it can organize new attacks. But if al Qaeda’s recruiting efforts are significantly hampered, so will its campaign of global terrorism.

Again, the whole thoughtful piece is worth reading: http://www.cnn.com/2011/WORLD/meast/02/21/arab.unrest.alqaeda.analysis/index.html

Noted jihadist expert Thomas Hegghammer likes the article as well, but personally comes out on the pessimistic side of things at his blog “Jihadica:”

Basically there are two schools of thought on the matter: the ”fewer grievances” school and the “more opportunities” school – represented in Cruickshank’s piece by Osama Rushdi and Noman Benothman respectively. The former argues that democratization will stem new recruitment to al-Qaida by removing a key grievance and undermining the message that only violence can bring change. The latter argues that the unrest provides jihadis with new operational opportunities and encourages spoiler activism.

Personally I lean toward the “more opportunities” school. I agree that the recent events are bad for al-Qaida in the long run, but I see the short and medium term effects as much less predictable. For a start, the removal of a grievance does not affect the motivation of the already mobilised (this, I admit, is the same argument used by those who say Palestine does not matter for al-Qaida). Second, the relationship between grievances and violence is not linear. Terrorism is a small-scale phenomenon and usually involves people who are outliers on the spectrum of political opinion. Osama Rushdi’s claim, in the CNN piece, that “the end of the Mubarak regime will prevent men like Zawahiri from again emerging in Egypt” strikes me as hopelessly naive. Finally, discontent with Arab regimes is not the only grievance motivating new al-Qaida recruits. Hostility to Western policies and solidarity with Muslims at war with non-Muslims are also prominent motivations, and these are largely unaffected by the events in Tunisia and Egypt. Among perpetrators of Islamist terrorist attacks in the West in recent years, you will not find many who say they acted out of hatred for the Egyptian or Saudi regimes.

Lawyers are an important part of the homeland security team

Not that you might have doubted that notion, but a recent New York Times article reinforces the idea.  New York State lawyers have produced a compilation of relevant laws that can serve as a guide for legal professionals during and following a terrorist attack, disease outbreak, or natural disaster.

Quarantines. The closing of businesses. Mass evacuations. Warrantless searches of homes. The slaughter of infected animals and the seizing of property. When laws can be suspended and whether infectious people can be isolated against their will or subjected to mandatory treatment. It is all there, in dry legalese, in the manual, published by the state court system and the state bar association.

The most startling legal realities are handled with lawyerly understatement. It notes that the government has broad power to declare a state of emergency. “Once having done so,” it continues, “local authorities may establish curfews, quarantine wide areas, close businesses, restrict public assemblies and, under certain circumstances, suspend local ordinances.”

Ronald P. Younkins, the chief of operations for the state court system, said the book’s preparation was similar to other steps the New York courts had taken to plan for emergencies, including stockpiling respirators and latex gloves. Like such manuals in other states, Mr. Younkins said, it is intended to give judges and lawyers a place to turn in an emergency because the maze of state and federal laws — some decades or centuries old — can be difficult to decipher. For judges, the manual may well be their only refresher on the case of Mary Mallon, “Typhoid Mary,” who was isolated on an East River island from 1915 until her death in 1938.

“It is a very grim read,” Mr. Younkins said. “This is for potentially very grim situations in which difficult decisions have to be made.”

Published with the disarmingly bland title “New York State Public Health Legal Manual,” the doomsday book does not proclaim new law but, rather, describes existing law and gives lawyers and judges ways of analyzing any number of frightening situations.

For those interested, the full document can be found at: http://www.nycourts.gov/whatsnew/pdf/PublicHealthLegalManual.pdf

December 17, 2010

Germans target advocacy of sharia as unconstitutional

Filed under: International HLS,Legal Issues,Radicalization,Terrorist Threats & Attacks — by Philip J. Palin on December 17, 2010

According to Deutsche Welle:

German security officials conducted raids on two alleged Islamist groups in three states on Tuesday, suspecting the groups were involved in anti-constitutional activities. Authorities searched property belonging to the groups Invitation to Paradise (EZP in German), with offices in Moenchengladbach and Braunschweig, and the Islamic Cultural Center of Bremen (IKZB in German), in the city-state on the North Sea coast, as well as the private residences of some members.

A spokesman for the German Interior Ministry, explained:

EZP and IKZB are suspected of acting against the constitutional order by planning to create an Islamic theocracy in Germany. Salafists understand the Islamic religion to be an ideology of order and a system of law that is incompatible with parliamentary democracy. According to Salafist ideology, the laws can only be from God (divine sovereignty) and can not be made by the people… Salafi Islamist networks such as these organizations are opposed to liberal democracy and as such the laws-of-association can apply. For an embattled democracy, it is necessary — without waiting for the jihad to emerge in the form of armed struggle — to take action against anti-constitutional organizations. (Original German press release is available from the Ministry of InteriorWarning: I translated this myself and my German is even more amateur than my Greek.)

The Interior Ministry emphasized there is no evidence or accusation that the suspects were planning terrorist activity.  Rather, the charge being investigated is the purposeful undermining of German constitutional principles.

I cannot find a bill of particulars and my inquiries to the German Embassy in Washington have not yet been answered.  But it seems likely action is being taken under section 90b or section 92 of the German Criminal Code relating to Crimes against Peace, High Treason and Endangering the Democratic Rule of Law.  If correct, this is a significant twist in the German anti-terrorism strategy.  This may be the first time these provisions have been applied to Islamic organizations.  The decision of the Ministry to target and reference “Salafist” groups is  worth particular note. (In 2008 Khalil Al-Anani, then with the Brookings Institution, provided a brief backgrounder on Salafism.)

The chapter entitled Crimes against Peace, High Treason and Endangering the Democratic Rule of Law is the so-called “Special Part” or “anti-Nazi section” of the criminal code.  Section 92 reads:

(1) Within the meaning of this law, a person undermines the continued existence of the Federal Republic of Germany if he causes the abolition of its freedom from foreign domination, the destruction of its national unity, or the separation of one of its constituent territories.

(2) Constitutional principles, within the meaning of this law, shall be:

1. the right of the people to exercise state power in elections and ballots and through particular organs of legislative, executive and judicial power and to elect parliament in general, direct, free, equal and secret elections;

2. the subjection of legislation to the constitutional order and the subjection of the executive and judicial power to law and justice;

3. the right to form and exercise a parliamentary opposition;

4. the replaceability of the government and its responsibility to parliament;

5. the independence of the courts; and

6. the exclusion of any rule by force and decree.

(3) Within the meaning of this law:

1. efforts against the continued existence of the Federal Republic of Germany shall be such efforts, the supporters of which work toward undermining the continued existence of the Federal Republic of Germany (subsection (1));

2. efforts against the security of the Federal Republic of Germany shall be such efforts, the supporters of which work toward undermining the external or internal security of the Federal Republic of Germany;

3. efforts against constitutional principles shall be such efforts, the supporters of which work toward destroying, invalidating or undermining a constitutional principle (subsection (2)).  (The German Criminal Code is available in an official translation.)

Number 3 immediately above strikes me as the most likely legal basis for conducting the raids and collecting evidence.

In October Chancellor Angela Merkel gave a speech which seems to have presaged this new legal strategy.  According to a Reuters report (I do my own translations only as a last resort):

“Now we obviously also have Muslims in Germany. But it’s important in regard to Islam that the values represented by Islam must correspond with our constitution,” said Merkel.

“What applies here is the constitution, not sharia.”

Merkel said Germany needed imams “educated in Germany and who have their social roots here” and concluded: “Our culture is based on Christian and Jewish values and has been for hundreds of years, not to say thousands.”

The Chancellor’s words are now being put into action.

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