Enemy Combatant Sent Home to the U.K.

Military Families United, a group that wants to keep enemy combatants locked up in Guanatanamo Bay, produced the following video after the U.S. released British resident Binyam Mohamed, the first detainee to be freed since President Obama signed an order to close down the prison:Following his visit to Gitmo this week, Attorney General Holder said that the the detention center is "a well-run, professional facility that will be difficult to close," but the administration nonetheless still intends on shutting it down. Many feel that the administration erred by announcing it would close the base before the Pentagon completed its review of the facility, a review that found the prison met Geneva Convention standards.

Update: Does Holder have a conflict of interest?

Change Bush Can Believe In

We recently read a movie review in which the writer, presumably an Obama supporter, went off on a tangent about the assault on civil liberties and shredding of the constitution perpetrated by President Bush. Well, once again, despite similar denunciations on the campaign trail, the new president has adopted yet another legal principle crafted by the Bush administration in connection with the global war on terror, in this instance the state-secrets privilege:

President Obama’s administration is moving aggressively to protect what the government insists are “state secrets” from a Bush-era wiretapping program.

Justice Department lawyers filed an emergency motion Friday with a federal appeals court in an effort to block a lower court’s order that the government must show lawyers for the Al-Haramain Islamic Foundation a copy of a document indicating that the group’s communications were being intercepted. The document has been the subject of a running legal battle since the papers were accidentally sent to attorneys for the group in 2004 and subsequently retrieved.

“Disclosure of the material at issue here would cause exceptionally grave harm to the national security and result in irreparable injury to the United States,” the Justice Department wrote. It said information about the surveillance program is considered “Top Secret — Sensitive Compartmented Information.”

Attorney General Holder evidently did a 180 in this case:

Attorney General Eric Holder promised during the confirmation process to conduct a review of the Bush administration’s frequent use of the state secrets privilege. However, the emergency appeal in the al-Haramain case signals that Holder concluded the controversial privilege was correctly asserted there. Earlier this month, civil libertarians were disappointed when the Justice Department stood by the “state secrets” tactic in opposing a suit brought by men who claim they were abducted by the Central Intelligence Agency.

Bush's Third Term?

Campaign rhetoric notwithstanding, more legal backpedaling by the Obama administration?

Detainees being held at Bagram Air Base in Afghanistan cannot use US courts to challenge their detention, the US says.

The justice department ruled that some 600 so-called enemy combatants at Bagram have no constitutional rights.

Most have been arrested in Afghanistan on suspicion of waging a terrorist war against the US.

The move has disappointed human rights lawyers who had hoped the Obama administration would take a different line to that of George W Bush.

Club Gitmo, the Sequel

A new report casts further doubt on the prevailing media mythology about the Guantanamo Bay detention center:

A Pentagon review of conditions at the Guantanamo Bay military prison has concluded that the treatment of detainees meets the requirements of the Geneva Conventions but that prisoners in the highest-security camps should be allowed more religious and social interaction, according to a government official who has read the 85-page document.

The report, which President Obama ordered, was prepared by Adm. Patrick M. Walsh, the vice chief of naval operations, and has been delivered to the White House. Obama requested the review as part of an executive order on the planned closure of the prison at the U.S. naval base at Guantanamo Bay, on the southeastern tip of Cuba.

...Guantanamo Bay has a series of facilities with differing levels of security. Prisoners deemed dangerous or not in compliance with prison rules are held in Camps 5 and 6, where recreation time is restricted and there is little or no opportunity for group activity. In Camp 4, by contrast, detainees can gather in dorms or a common area for much of the day, and there are classes, including English and art, as well as a makeshift soccer pitch.

In this clip, Lt. Col. Gordon Cucullu (ret.) of InsideGitmo.com discusses Gitmo prisoner abuse--that is, prisoners abusing their military guards:

Aye Robot?

Just in case we didn't have enough to worry about, The Times of London and the U.S. Office of Naval Research brings this to the table:

Autonomous military robots that will fight future wars must be programmed to live by a strict warrior code or the world risks untold atrocities at their steely hands.

The stark warning – which includes discussion of a Terminator-style scenario in which robots turn on their human masters – is issued in a hefty report funded by and prepared for the US Navy’s high-tech and secretive Office of Naval Research.

The report, the first serious work of its kind on military robot ethics, envisages a fast-approaching era where robots are smart enough to make battlefield decisions that are at present the preserve of humans. Eventually, it notes, robots could come to display significant cognitive advantages over Homo sapiens soldiers.

Under the "Legal Challenges" heading, the 112-page report has this to say, in part:

To whom would we assign blame—and punishment—for improper conduct and unauthorized harms caused by an autonomous robot (whether by error or intentional: the designers, robot manufacturer, procurement officer, robot controller/supervisor, field commander, President of the United States...or the robot itself?...The law offers several precedents that a robotics case might follow, but given the range of specific circumstances that would influence a legal decision as well as evolving technology, more work will be needed to clarify the law for a clear framework in matters of responsibility…The situation becomes much more complex and interesting with robots that have greater degrees of autonomy, which may make it appropriate to treat them as quasi‐persons, if not full moral agents some point in the future.

Click here for the full text of the report.

Appeals Court Blocks Release of Detainees

Reversing a ruling by a lower court judge, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit has determined the the 17 ethnic Chinese Muslims known as Uighurs must stay in jail at the Gitmo Naval Base, at least for now:

A federal appeals court on Wednesday overturned a ruling that 17 Chinese Muslims who have been held for years at the U.S. military prison at Guantanamo Bay in Cuba must be freed in the United States. The appeals court ruled that a federal judge did not have the authority to order the U.S. government to bring the members of the Uighur ethic group to the United States for their release. It said only the executive branch, and not the courts, could make such immigration decisions.

Writing for the majority, Judge Raymond Randolph explained that:

For more than a century, the Supreme Court has recognized the power to exclude aliens as “‘inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers – a power to be exercised exclusively by the political branches of government’” and not “granted away or restrained on behalf of any one.” The Chinese Exclusion Case, 130 U.S. 581, 609 (1889). Ever since the decision in the Chinese Exclusion Case, the Court has, without exception, sustained the exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms.

The case is Jamal Kiyemba v. Barack Obama, No. 08-5424. The president could use his executive authority to free the men; Attorney General Holder is scheduled to visit Gitmo next week.

E-Verify Dropped from "Stimulus" Bill

Owing to lobbying efforts from an odd coalition of certain business and civil liberties groups, employers who receive federal funds under the so-called $787 billion "stimulus" legislation don't have to check if their workers are here legally:

Senate and House conferees removed a controversial provision from the economic stimulus package that would have required companies to verify the immigration status of their workers. The decision to strip the measure was hailed by pro-business and pro-immigrant groups, but left fuming those who advocate stricter enforcement of immigration laws...Conferees did not retain language in the House-passed version of the stimulus bill that would have required companies to use the so-called E-Verify system, an online tool that employers can use to check Homeland Security and Social Security databases to verify an employee is legally authorized to work in the country. The Senate's version of the stimulus bill did not include such a provision. The U.S. Chamber of Commerce led lobbying efforts to kill the provision, and was joined by the American Civil Liberties Union and other groups.

The Heritage Foundation suggests that the bill will provide $104 billion in funding for public works projects, and that "without specific mechanisms to ensure that workers are U.S. citizens or legal immigrants authorized to work, it is likely that 15 percent of these workers, or 300,000, would be illegal immigrants."

Homeland Security Programs Scrutinized

Based on what the New York Times calls her "practical experiences as a border-state governor," Homeland Security Secretary Janet Napolitano "is re-evaluating the largest federal program for testing the country’s ability to respond to terrorist attacks, one of several Bush administration initiatives she has ordered to come under review." She has also ordered a review of several other programs, such as "cybersecurity, a strategy for protecting the border with Canada, and the vulnerability of power plants and other critical infrastructure." Previously, President Obama ordered an immediate, 60-day review of the U.S. government's cyber-security plans, programs, and activities.

Update: Here's a different take on Napolitano's practical experience.

The Jury Has Spoken...

but are they talking gibberish? While exonerating a rancher of alleged civil rights violations, an Arizona federal jury awarded money damages on other counts to six illegal aliens trespassing on the defendant's land:

A federal jury found Tuesday that a southern Arizona rancher didn't violate the civil rights of a group of illegal immigrants who said he detained them at gunpoint in 2004. The eight-member civil jury also found Roger Barnett wasn't liable on claims of battery and false imprisonment.

But the jury did find him liable on four claims of assault and four claims of infliction of emotional distress and ordered Barnett to pay $77,804 in damages — $60,000 of which were punitive. Barnett declined to comment afterward, but one of his attorneys, David Hardy, said the plaintiffs lost on the bulk of their claims and that Barnett has a good basis for appeal on the two counts on which he lost.

Appeals courts often reduce excessive damage awards, but the defendant will have to run up more legal fees to get there.

In a somewhat related development in connection with border security, the Washington Times reports the following:

Heavily armed outlaws are threatening national parks and other public lands along the Mexican border, where terrain and environmental concerns limit the range of U.S. Border Patrol agents and are complicating efforts to build a barrier ordered by Congress.

The Department of Homeland Security has allocated about $50 million to counter the ecological impact on land managed by the Interior Department and other government agencies...

Numerous Border Patrol agents interviewed by The Washington Times said drug smugglers and human traffickers are using ecologically diverse sanctuaries to evade law enforcement officials, whose access is limited in some areas to foot patrols and horseback.

Mirandizing Terrorists?

"You have the right to remain silent..." That's a familiar catchphrase from cops-and-robbers pot-boilers on TV or in the movies. It is, of course, the opening line to the Miranda warning that police use to advise criminal suspects of their 5th Amendment rights. The U.S. Supreme Court mandated this advisory in the landmark 1966 Miranda vs. Arizona decision. As an aside, there is even a quasi-Miranda warning for debt collection: Under the Fair Debt Collection Practices Act, collection agencies and collection attorneys must advise debtors they are attempting to collect a debt in any communication with them.

But when we go down the road of giving enemy combatants and detainees the same constitutional rights as domestic criminals, unintended consequences emerge:

Accused in a 2002 grenade blast that wounded two U.S. soldiers near an Afghan market, Mohammed Jawad was sent as a youth to Guantanamo Bay. Now, under orders by President Obama, he could one day be among detainees whose fate is finally decided by a U.S. court.

But in a potential problem, Pentagon officials note that most of the evidence against Jawad comes from his own admissions. And neither he nor any other detainee at the U.S. prison at Guantanamo Bay, Cuba, was ever told about their rights against self-incrimination under U.S. law.

The Miranda warning, a fixture of American jurisprudence and staple of television cop shows, may also be one of a series of constructional hurdles standing between Obama's order to close the island prison and court trials on the mainland.

A procession of similar challenges -- secret evidence, information from foreign spy services and coerced statements -- also could spell trouble for prosecutors.

All of these problems illustrate the larger difficulty that lies ahead as the nation moves from the "law of war" orientation used by the Bush administration in dealing with detainees to the civilian legal approach preferred by Obama.

Cartel Crime Wave in Phoenix

A chilling story from ABC News: Mexican drug cartels have made Phoenix the kidnapping capital of America. And Phoenix is now second only to Mexico City in the number of kidnappings worldwide. As we pointed out previously, the new Homeland Secretary is former Arizona governor Janet Napolitano. It also should be noted that Sen. John McCain is a Phoenix resident. Is it past time for federal intervention? Does the the so-called stimulus bill contain any funding for improvements to the border security infrastructure?According to this related AP report, "U.S. authorities are reporting a spike in killings, kidnappings and home invasions connected to Mexico's murderous cartels."

Obama Adopts Bush's State-Secrets Policy

The president tends to blame every mishap on "the last eight years," but he apparently seems to have a new-found regard for certain Bush-era legal policies:

In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

The full article can be found here.

Border Jumpers Sue Rancher

This is what you might call creative lawyering--except it's far more serious than a spilled coffee cup at a fast-food drive in.

An Arizona man who has waged a 10-year campaign to stop a flood of illegal immigrants from crossing his property is being sued by 16 Mexican nationals who accuse him of conspiring to violate their civil rights when he stopped them at gunpoint on his ranch on the U.S.-Mexico border.

Roger Barnett, 64, began rounding up illegal immigrants in 1998 and turning them over to the U.S. Border Patrol, he said, after they destroyed his property, killed his calves and broke into his home.

According to the news account, the defendant has been responsible for turning over over 12,000 illegal immigrants to the Border Patrol since 1998. The plaintiffs seek $32 million in civil damages. The trial is expected to run through Friday in Arizona federal court.

British Terrorists Threaten U.S. Homeland?

Breaking news from the London Telegraph about the terrorist threat here in America:

American spy chiefs have told the President that the CIA has launched a vast spying operation in the UK to prevent a repeat of the 9/11 attacks being launched from Britain.

They believe that a British-born Pakistani extremist entering the US under the visa waiver programme is the most likely source of another terrorist spectacular on American soil.

Intelligence briefings for Mr Obama have detailed a dramatic escalation in American espionage in Britain, where the CIA has recruited record numbers of informants in the Pakistani community to monitor the 2,000 terrorist suspects identified by MI5, the British security service.

A British intelligence source revealed that a staggering four out of 10 CIA operations designed to thwart direct attacks on the US are now conducted against targets in Britain.

In another recent news item, the Telegraph reports on a development that won't necessarily please the Manchester Chamber of Commerce:

Maj Gen Andy Salmon told The Daily Telegraph that following months of steady improvements in the security situation in Iraq's second city, the rate of violent crime and murder in Basra has fallen below some major British cities."On a per capita basis, if you look at the violence statistics, it is less dangerous than Manchester," he said, hailing a "radical transformation" in Iraq's prospects.

Charges Against USS Cole Bomber Dropped

The president had a meet-and-greet with the families of the USS Cole victims on the same day that the government dropped charges against one of the ringleaders:

President Barack Obama was spending time with families of 9/11 victims and the 17 sailors killed in the bombing of the USS Cole after a senior Pentagon judge dropped charges against an al-Qaida suspect in the Cole attack being held at Guantanamo Bay.

The legal move Thursday by Susan J. Crawford, the top legal authority for military trials at Guantanamo, upholds Obama's Jan. 22 executive order to halt terrorist court proceedings at the U.S. Navy base in Cuba. The charges against suspected al-Qaida bomber Abd al-Rahim al-Nashiri marked the last active Guantanamo war crimes case.

Groups representing victims' families were angered by Obama's order, charging they had waited too long already to see the alleged attackers brought to court.

On October 12, 2000, 17 U.S. sailors were murdered when Al Qaeda mounted a bomb attack against the Cole, which was docked in a Yemen port. Again, if this action is based on sound legal principles, fine. But if it is merely political grandstanding to get favorable publicity on the international stage, not good.

Pentagon spokesman Geoff Morrell said Crawford withdrew the charges against al-Nashiri. However, new charges could be brought again later, and al-Nashiri will remain in prison for the time being.

"It was her decision, but it reflects the fact that the president has issued an executive order which mandates that the military commissions be halted pending the outcome of several reviews of our operations down at Guantanamo," Morrell said.

Crawford's ruling also gives the White House time to review the legal cases of all 245 terror suspects held there and decide whether they should be prosecuted in the U.S. or released to other nations.

A mother of one of the victims, however, refused to meet with Obama on Friday and expressed regret for voting for him:
Investor Business Daily among others editorialized its skepticism about the administration's decision.

Separately, the administration has removed responsibility for the constitutionally mandated 2010 Census from the Commerce Department and centralized it in the White House. Does that mean that ACORN will be put in charge of the headcount? More here.

Update: On February 12, Sen. Judd Gregg (R-NH) withdrew his nomination as Commerce Secretary over the politicization of the Census.

Cheney: WMD Attack Likely

Speaking from an apparent disclosed location, former Vice President Cheney said on February 3rd that the risk of terrorists attempting a large-scale WMD attack on American soil in the coming years is high, and that Obama administration legal policies may increase the likelihood that the attempt may be successful.

...Cheney unyieldingly defended the Bush administration’s support for the Guantanamo Bay prison and coercive interrogation of terrorism suspects. And he asserted that President Obama will either backtrack on his stated intentions to end those policies or put the country at risk in ways more severe than most Americans — and, he charged, many members of Obama’s own team — understand.

“When we get people who are more concerned about reading the rights to an Al Qaeda terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry,” Cheney said...

Citing intelligence reports, Cheney said at least 61 of the inmates who were released from Guantanamo during the Bush administration — “that’s about 11 or 12 percent” — have “gone back into the business of being terrorists.”

The 200 or so inmates still there, he claimed, are “the hard core” whose “recidivism rate would be much higher.” (Lawyers for Guantanamo detainees have strongly disputed the recidivism figures, asserting that the Pentagon data have inconsistencies and omissions.) Cheney called Guantanamo a “first-class program,” and “a necessary facility” that is operated legally and with better food and treatment than the jails in inmates' native countries.

But he said he worried that “instead of sitting down and carefully evaluating the policies,” Obama officials are unwisely following “campaign rhetoric” and preparing to release terrorism suspects or afford them legal protections granted to more conventional defendants in crime cases.

Update: According to the Long War Journal, Saudi Arabia's new list of 85 most-wanted terrorists includes 11 former Gitmo detainees who went through Saudi Arabia's rehabilitation program.

Border Kidnapping

The stepfather of a Texas woman who went to Mexico for a concert in 2004 and never came back gives this interview to an emotional Glenn Beck, formerly of CNN and now of FNC:

Iraq: Female Sucide Bombers

A horrific story from Iraq.

Holder In; Two Others Out

Despite being the point man for the Clinton administration's controversial pardons (including the 16 FALN terrorists), the Senate confirmed Eric Holder as Attorney General by a vote of 75 to 21. However, two other high-level nominees, Nancy Killefer and Tom Daschle, withdrew their nominations over failure to pay income taxes. It's still hard to fathom how the Senate could confirm tax scofflaw Tim Geithner as of all things Treasury Secretary and head of the IRS.

Controversial Rendition Program Still in Place?

The LA Times provides an interesting follow-up to the hoopla surrounding Obama's recent flurry of executive orders.

The CIA's secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.

But even while dismantling these programs, President Obama left intact an equally controversial counter-terrorism tool.

Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism -- aside from Predator missile strikes -- for taking suspected terrorists off the street.

Military Trial Going Forward

A U.S. Army judge, in effect, has told the administration, "Yes, We Can!"

A military judge threw a wrench [Thursday] into the Obama administration's plan to suspend legal proceedings at Guantanamo Bay, denying the government's request to delay the case of a detainee accused of planning the 2000 attack on the USS Cole.

To halt proceedings for 120 days -- as Obama wants in order to conduct a review -- the Pentagon may be forced to temporarily withdraw charges against Abd al-Rahim al-Nashiri and possibly 20 other detainees facing trial in military commissions, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks.

The administration, which expected military judges to agree to its motions seeking suspension, was taken aback by yesterday's decision. Judges in other cases, including one involving five Sept. 11 defendants, had quickly agreed to the government's request.

Col. James Pohl, the chief judge in Gitmo, said the administration's arguments to delay the scheduled arraignment of Nashiri were "unpersuasive," and would deny the public's interest in a speedy trial. Click here and here for the full story.