Material Support Law Upheld

June 21st, 2010 by lgiunt

Sorry for the long break between posts.  I don’t have time to add a long one, but for those of you who haven’t read it, the Supreme Court’s opinion today in Holder v. Humanitarian Law Project is a must-read.

Although controversial, the material support laws have been among the most frequently-used weapons in the federal government’s legal arsenal against terrorists.

For a look at what some of the leading national security law scholars in the nation have to say about the decision, the N.Y. Times has a great piece with brief summaries from a number of leading professors.

With any luck, we should be able to put up a summary and analysis of this decision shortly.

President Clinton’s reflections on OKC and a few thoughts on the future of domestic terrorism.

June 7th, 2010 by amccor

President Clinton’s remarks from a few weeks ago are receiving varied treatment in the news. He spoke on the disorientation of America, the current pique of rhetoric, the vast echo chamber of our national media (and I would argue our new media), and the crackpots shouting in it. He compared the nation’s current position to the climate before the OKC bombing, to mixed reaction.

I remember the ‘95 bombing. I was 11, and Oklahoma City was awfully nearby. I don’t remember the political climate in the lead up, but today’s real threat of domestic violence against the government saddens and worries me. My parents’ generation grew up seeing the murders of JFK, MLK, and RFK – so far my generation has been luckier. But I have been struck by the threats against speaker Pelosi motivated by the healthcare bill, the murder of the democratic party chairman in Arkansas, a man I knew and liked killed in an office where I’d spent time, and the shootings at a Tennessee UU church “motivated by hatred of democrats, liberals, African Americans and homosexuals” have me listening closely to the things president Clinton has to say, and thinking hard about the future of security and domestic terrorism.

President Clinton has also said that the most traumatic thing about the 7/7 attack in Britain is that it was perpetrated by Britons – the terrorism was home grown, and the perpetrators felt the differences from their very neighbors – persons with whom they had lived for decades, worked with, gone to school with, and shared a community with – were greater than their common community. Conceptually, this kind of terrorism is much, much harder to grapple to the floor than an overseas attack, and its implications reach further.

The lesson is critical for what Columbia Law Professor Philip Bobbitt terms “market states” in his book Terror and Consent. I find myself approaching the problem using theories from Professor Bobbitt’s course on Terrorism, International Law, and Constitutional Theory. As a country we enjoy the advantages of the 21st century – we outsource, employ complicated leadership structures, and we network globally. The initial lesson is to understand that globalized terrorism will emerge, and it will reflect the global, networked, market-based structure and activities of Visa or Coca-Cola, rather than the 20th century nation state structure of national liberation terrorists, e.g. PLO, ETA, IRA, etc. Al Qaeda is one example of a market state era threat.

Read on, after the jump!

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UN Report Is Critical of UAV Killings, as Expected

June 2nd, 2010 by lgiunt

The N.Y. Times reports that the U.N. report on the use of lethal force by drones is critical, as expected.

The report is especially critical of the use of intelligence agencies in such attacks.  Although he notes that such killings are not “war crimes” even when perpetrated by the CIA, Philip Alston still takes issue with the use of the Intelligence Community (IC) for such actions.  Rather than worrying about the actors, he worries about accountability and transparency:

States may have tactical or security reasons not to disclose criteria for selecting specific targets (e.g. public release of intelligence source information could cause harm to the source). But without disclosure of the legal rationale as well as the bases for the selection of specific targets (consistent with genuine security needs), States are operating in an accountability vacuum. It is not possible for the international community to verify the legality of a killing, to confirm the authenticity or otherwise of intelligence relied upon, or to ensure that unlawful targeted killings do not result in impunity. The fact that there is no one-size-fits-all formula for such disclosure does not absolve States of the need to adopt explicit policies.

Although in previous posts I mentioned Harold Koh’s speech outlining the legal justifications for the use of UAV strikes, Alson remained adamant that “no State has disclosed the full legal basis for targeted killings, including its interpretation of the legal issues discussed above. Nor has any State disclosed the procedural and other safeguards in place to ensure that killings are lawful and justified, and the accountability mechanisms that ensure wrongful killings are investigated, prosecuted and punished.”

Read more of the report, after the jump.

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GTMO Detainee Review Complete; Political Fight Looms

May 28th, 2010 by lgiunt

No time now for any analysis, but the Washington Post has a good piece on it.  Among other key excerpts:

About 10 percent of the 240 detainees held at Guantanamo Bay, Cuba, when President Obama took office were “leaders, operatives and facilitators involved in plots against the United States,” but the majority were low-level fighters, according to a previously undisclosed government report. About 5 percent of the detainees could not be categorized at all.

The final report by the Guantanamo Review Task Force recommends that 126 of the detainees be either transferred home or to a third country; that 36 be prosecuted in either federal court or a military commission; and that 48 be held indefinitely under the laws of war. A group of 30 Yemenis was also approved for release if security conditions in their home country improved.

It remains unclear if the administration can now gain enough support on Capitol Hill to move forward with its plans to buy a state prison in Illinois to replace Guantanamo, where 181 detainees remain. Key committees in both the House and Senate this month introduced language into defense bills that would bar funding for any such facility in the United States.

The report said those recommended for indefinite detention had significant roles in al-Qaeda or the Taliban and advanced training or expertise. It also noted that “some detainees designated for detention have, while at Guantanamo, expressly stated or otherwise exhibited an intent to reengage in extremist activity upon release.”

Enjoy your weekends!

UN To Apply Pressure to Stop Drone Killings

May 28th, 2010 by lgiunt

The N.Y. Times reports, in an interesting article, that the United Nations is going to call on the United States to stop using unmanned aerial vehicles (UAVs) against suspected members of al Qaeda.  Such pressure would not be legally binding, and is probably unlikely to put a stop to the military tactic.  However, it could certainly deal a blow to President Obama’s national security strategy, which relies heavily on efforts to adhere to international norms.

Harold Koh, the Legal Adviser to the State Department and the former Dean of Yale Law School, gave a great speech at ASIL’s annual meeting; during that speech, he laid out the foundation for a legal argument concerning the legality of UAV strikes both within and external to active combat zones.   Such strikes are almost certainly legal if the targets are in fact engaged in an armed conflict against the U.S.  As Koh noted, “a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.”

Some potentially serious problems with the UAV program are discussed in greater detail, after the jump.

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House Votes To Repeal Don’t Ask Don’t Tell

May 27th, 2010 by lgiunt

CNN reports that Representative Murphy (D-PA) pushed for a vote on the revised language, and it passed the House tonight, 234-194.

Don’t Ask Don’t Tell On Verge Of (Sort Of) Repeal

May 27th, 2010 by lgiunt

This post is a submission from John Power Hely VI, a recent graduate of Columbia Law School and a former United States Marine.

The New York Times reports that “The Senate Armed Services Committee on Thursday voted to let the Defense Department repeal the ban on gay and bisexual people from serving openly in the military.”

Servicemembers United, the Servicemembers Legal Defense Network, Rep. Murphy (D-PA), Sen. Lieberman (D-CT), and others met at the White House early this week to discuss the fact that repeal seemed to be going forward despite Secretary Gates’ desire to wait until the Pentagon Working Group report issues in December.  In order to secure passage through the Committee, the drafters crafted “compromise language,” which some applaud but others believe renders the bill toothless.

The compromise language repeals Don’t Ask Don’t Tell (10 U.S.C. 654) itself, but without drafting any nondiscrimination language to replace it.  This returns absolute authority to the Pentagon, essentially winding back the clock to 1992. The compromise language requires that the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff all confirm that any repeal plan would not adversely affect military readiness prior to enacting such a plan.  In order to get the vote of Sen. Byrd (D-WV), a possible blocking vote on the Senate Armed Services Committee, an amendment to the compromise language was created, giving Congress 60 days to review the repeal plan before it went into effect.

Find out what the compromise does NOT do, after the jump…

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The New National Security Strategy

May 27th, 2010 by asimon

Over at The Atlantic, Marc Ambinder has his take on Obama’s new National Security Strategy. Worth reading.

Maqaleh Analysis – No Habeas at Bagram

May 25th, 2010 by Jacqueline Kelly

The Obama administration won an important victory on Friday when a 3-judge D.C. Circuit panel unanimously held that habeas rights would not be extended to enemy combatants held at the Bagram detention facility in Afghanistan.  The ruling overturned a district court’s decision finding that Boumediene’s holding allowing habeas challenges by prisoners at Guantanamo Bay extended to Bagram.  The decision is likely to be appealed to the Supreme Court but it is very possible that it will not be reviewed.

The Circuit distinguished the hypothetical extension of habeas rights to Bagram facility, which unlike Guantanamo Bay, is located in a theater of war.  The detainees bringing the case were two Yemenis (Fadi Al-Maqaleh and Amim Al-Bakri) and one Tunisian (Redha Al-Najar); each of them alleged that they were captured outside Afghanistan’s borders.  The case posed the important questions of how far the constitutional right to challenge executive detention extends beyond U.S. shores in light of the Boumediene and Eisentrager Supreme Court decisions, and how such an extension would affect military operations and U.S. bases around the world.

The Circuit Court’s analysis looked closely at the nature of the Bagram facility. Bagram Airfield Military Base is the largest military facility in Afghanistan that is occupied by U.S. and coalition forces.  U.S. presence at Bagram is made possible by a leasehold between the U.S. and the Afghan government.  Other nations in the coalition have compounds at the base but the U.S. provides overall security. The Circuit Court rejected the extreme positions of both the government and the detainees’ lawyers to adopt a kind of middle ground position regarding the interpretation of Boumediene in the context of Bagram.  The panel rejected arguments by the Government that the lack of total sovereignty at Bagram defeated the extension of habeas in and of itself, but also rejected the detainees’ argument that de facto control over the base ensured habeas protection.

More detailed analysis of the Maqaleh decision, after the jump.

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Al Maqaleh Decision

May 21st, 2010 by lgiunt

A decision has been reached in the Al Maqaleh case.  Al Maqaleh had been trying to extend habeas rights to Bagram.  Judge Bates of the District of D.C. had granted his petition, but was just reversed by the D.C. Circuit.

The full opinion is available here.

We should be able to post some analysis soon, but wanted to get this up ASAP.