The Terrorist Next Door?

In John Gregory Dunne's novel Dutch Shea Jr., the title character, a lawyer on the edge, has an relationship with a judge nicknamed "Structured Setting Martha." When sentencing perpetrators, the judge would always say "I think you'd be better off in a structured setting."

Unlike garden-variety criminals, Gitmo detainees apparently aren't better off in a structured setting.

Attorney General Eric Holder said some detainees being held at Guantanamo Bay, Cuba, may end up being released in the U.S. as the Obama administration works with foreign allies to resettle some of the prisoners.

Mr. Holder, in a briefing with reporters, said administration officials are still reviewing individual cases of the approximately 250 detainees to determine which will be put on trial and which may be released to comply with plans to close the detention facility by next year.

Presumably the 9/11 plotters currently jailed at Gitmo will be locked up indefinitely. In legal papers released on March 10, the detainees were unrepentant about their involvement in the attack: "The five detainees...have filed a document with the military commission...expressing pride at their accomplishment and accepting full responsibility for the killing of nearly 3,000 people." The full document can be accessed here.

Terrorism Redefined as a "Man-Caused Disaster"

DHS Secretary Napolitano said on March 13 that that the administration would "soon" unveil a plan to address the U.S.-Mexico border violence.

In an interview with Newsweek, Napolitano similarly indicated that more law enforcement assets will be sent to the border in the coming weeks: "She said their mandate would be not just preventing drugs and cartel members from entering the United States but stemming the flow of cash and weapons from the U.S. to Mexico."

Yet oddly enough, one of the administrations priorities is to launch an investigation of Sheriff Joe Arpaio.

Separately, in an interview with the German news organization Spiegel, Napolitano suggested that in the new administration the word "terrorism" is going the way of enemy combatant.

SPIEGEL: Madame Secretary, in your first testimony to the US Congress as Homeland Security Secretary you never mentioned the word "terrorism." Does Islamist terrorism suddenly no longer pose a threat to your country?

Napolitano: Of course it does. I presume there is always a threat from terrorism. In my speech, although I did not use the word "terrorism," I referred to "man-caused" disasters. That is perhaps only a nuance, but it demonstrates that we want to move away from the politics of fear toward a policy of being prepared for all risks that can occur.

Meanwhile, the Washington Times is less than enamored with Napolitano's stewardship of the agency:

Department of Homeland Security chief Janet Napolitano seems to be floundering on immigration and national security issues.

Not only is she continuing her quixotic campaign against Real ID, the main federal law safeguarding the integrity of drivers' licenses and keeping them out of the hands of terrorists, but she has also been weak and apologetic about the efforts of Immigration and Customs Enforcement to do its job - removing illegal aliens from the United States.

And congratulations to Justice Sotomayor, who yesterday received Senate confirmation of her appointment. Click here for a review of a book written by one of her new colleagues.

Enemy Combatants No Longer Exist?

In legal papers filed on Friday the 13th, the U.S. Justice Department declared the term "enemy combatant" null and void and indicated that it will evaluate the detention of individuals at Guantanamo on a case-by-case basis:

In a filing today with the federal District Court for the District of Columbia, the Department of Justice submitted a new standard for the government’s authority to hold detainees at the Guantanamo Bay Detention Facility. The definition does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase "enemy combatant."… The government’s new standard relies on the international laws of war to inform the scope of the president’s authority under this statute, and makes clear that the government does not claim authority to hold persons based on insignificant or insubstantial support of al Qaeda or the Taliban.

The Washington Post says that this is merely symbolism with no real substantive change:

Though dropping the term "enemy combatant" was a symbolic break from the Bush administration, the practical effects of yesterday's action will not be known for months...Legal scholars and those representing detainees said that dropping the term "enemy combatant" was important but that the rest of the legal arguments may not change much about the nation's detention policy. Robert M. Chesney, an expert on national security law at Wake Forest University, said the changes would affect detainees "at the margins."

"They've changed the label, but the substance has changed only a little bit," Chesney said

Time will tell. The actual legal ramifications of this perhaps cosmetic change in terminology remain to be seen. However, as a practical matter, how does the government plan define "significant or substantial support" when it comes to these holding these actors in prison? We're getting the increasing sense that anti-terrorism and homeland security initiatives going forward will be more like a marketing campaign or perhaps even a law school hypothetical. Moreover, do we want the safety and security of the American people based on vague or theoretical notions of international law (given that international law has itself often been dubbed an oxymoron)? And this particular story about a Justice Department nominee does little to increase the confidence level in the new administration's counter-terrorism efforts.

In his book, Judge Posner suggests the following:

Civil libertarians are not always careful about history, perhaps because most of the rights they defend have no solid historical anchor, or perhaps because the lawyer's attitude toward history is a manipulative one (a tendency as pronounced on the legal Right with its "originalist" fantasies, as on the Left)…Civil Libertarians neglect genuine lesson of history: than the greatest danger to American civil liberties would be another terrorist attack on the United, even if it was on a smaller scale than the 9/11 attacks…

More important than the one-sidedness of the civil libertarians' historical narrative is the assumption that the past is a good guide to the future…The past does not include attacks on the United States by terrorists wielding nuclear bombs, dirty bombs, biological weapons capable of killing millions of people, or other weapons of mass destruction…We must not emulate the Bourbon kings, who learned nothing and forget nothing. Or, as another saying goes, if we want things to say the same, things will have to be different. Those who believe that since we survived decades of confrontation with the Soviet Union unscathed we have nothing to fear from a handful of terrorists are looking backward rather than forward.

Just as an aside, the inclusion by Judge Posner of that fascinating old saying about things must change to stay the same serves as a key line in the classic Luchino Visconti epic The Leopard starring Burt Lancaster as an Italian prince in a time of great social and political upheaval in that country known as the "Risorgimento." That important line of dialogue in the film was in turn taken from original novel authored by Giuseppe Tomasi Di Lampedusa.

NFL, Others, Immune from Terror-Related Lawsuits

Remember the 1977 thriller Black Sunday, about a terrorist plot at the Super Bowl? If not, the film is out on DVD, and it does show up on TV occasionally--although it's certainly not in heavy rotation. Fortunately, homeland security officers do a great job in locking down the real Super Bowl venue each year, but in the highly unlikely event that such a horrible thing occurs during a pro football game, the lawyers would have a field day suing everyone from the hotdog vendor on up. Well, not exactly:

The National Football League and dozens of other companies and organizations have won exemption from lawsuits under a post-9/11 law that prohibits them from being sued if terrorists attack a site they are protecting.

The law, called the SAFETY Act (Support Anti-terrorism by Fostering Effective Technologies), aims to help security providers by guaranteeing they will not pay any claims that terror victims might file after an attack.

Qualifying for the legal protection against liability lawsuits (i.e., legal "immunity") requires Department of Homeland Security approval of the effectiveness of the organization's anti-terrorism measures.

Gitmo Alumni in Afghanistan

Another former detainee re-emerges according to the AP:

The Taliban's new top operations officer in southern Afghanistan had been a prisoner at the Guantanamo Bay detention center, the latest example of a freed detainee who took a militant leadership role and a potential complication for the Obama administration's efforts to close the prison. U.S. authorities handed over the detainee to the Afghan government, which in turn released him, according to Pentagon and CIA officials.

Border Chaos Could Destabilize U.S. and Mexico

News of the escalating violence at our southern border is starting to filter into the mainstream media as evidenced by this report from the Star-Telegram of Fort Worth, Texas:

The state and federal governments have prepared contingency plans to deal with "spillover violence" from across the border as Mexican troops clash with ruthless drug cartels terrorizing the United States’s southern neighbor.

"Anything you can think of that’s happened in Mexico, we have to think could happen here," said Steve McCraw, Gov. Rick Perry’s director of homeland security. "We know what they’re capable of."

A crackdown by Mexican President Felipe Calderon has turned the City of Juarez, just across the border from El Paso, into a war zone as federal troops battle feuding cartels.

The Armed Forces Journal warns that situation is even more dire:

Largely invisible to most Americans, just to the south, the security situation is worsening as a result of an intense conflict between the Mexican government and domestic drug cartels — and even among the narco-gangs themselves. Some observers have characterized the fighting in Mexico as a low-grade civil war. Worse yet, by many estimates, the violence is escalating — and getting increasingly grisly...Drug trafficking organizations already control stretches of the Mexican side of the border, which according to some experts could bring the Mexican government to its knees in the coming years. Worse yet, it also has the potential of spilling north across the border — in an ever bigger way.

The AFJ indicates that the Mexican court system is a major problem because of "bribery, reluctant judges, lack of investigative resources and overloaded courts."

Yesterday CNN aired this report on the situation along with an update on the status of the border fence.

Update: Administration officials tell Congress on March 12 that sending troops to the border is an unlikely last resort.

Federal Judge Posner on the War on Terror and Constitutional Law

We recently had an opportunity to read Judge Richard A. Posner's 2006 book Not a Suicide Pact: The Constitution in a Time of National Emergency. The title refers to Supreme Court Justice Robert Jackson's famous 1949 statement in his dissenting opinion in Terminiello v. City of Chicago, the gist of which is that the unless the high court applied common sense to legal doctrine, the Constitution might pave the way for the undoing of the United States.

Judge Posner writes that his book is about "the marginal adjustments in such rights that practical-minded judges make when the values that underlie the rights--values such as personal liberty and privacy--come into conflict with values of equal importance, such as public safety, suddenly magnified by the onset of a national emergency."

In his book, Judge Posner first reviews general constitutional principles, and then takes a provocative look at the constitutional issues that have emerged in the post-9/11 world. The general thesis is that the U.S. is faced with an ongoing national emergency owing to terrorism and possible WMD attacks, and that our democracy must accordingly arrive at a pragmatic balance between personal liberty and community safety. This concise 158-page book, skillfully written in plain, approachable language, predates some of the more recent legal and legislative enactments concerning the war on terror, but it is nonetheless a highly valuable, informative resource.

A prolific writer and highly respected legal scholar who serves on the Chicago-based U.S. Court of Appeals for the Seventh Circuit, Judge Posner achieved prominence in part as a proponent of the law and economics movement, a philosophy that evaluates incremental legal and public policy changes on the basis of costs vs. benefits. This analytical framework is even more controversial to some as applied to national security issues. In the book, the judge argues that "A minor present curtailment of civil liberties, to the extent that it reduces the probability of a terrorist attack, reduces the likelihood of a major future curtailment of those liberties."

Although the judge comes down on the side of giving the government more authority for national security and public safety, he can't necessarily be pidgeon-holed as a "national security hawk" (his term). For example, he supports habeas corpus rights for enemy combatants. Nor does Judge Posner appear to ascribe to the strict constructionist or original intent philosophy of constitutional analysis.

Much of the debate over how much force the government can employ against terrorists, how much snooping it can do, and so forth, without violating the Constitution, has revolved around the question of whether the United States is at war with terrorists or whether they are simply a particularly noxious form of political criminal. I argue that the terrorist threat is sui generis--that it fits the legal category neither of "war" nor of "crime." It requires a tailored regime, one that gives terrorist suspects fewer constitutional rights than people suspected of ordinary crimes, though not no rights.

[the Latin term sui generis generally means a class of its own or unique in its characteristics]

Civil disobedience is a term usually associated with protesters in the street. Judge Posner supports coercive interrogation, and suggests that U.S. security officials engage in "civil disobedience" of their own to obtain critical information from terror suspects in extreme situations such as a ticking time bomb scenario:

Many consciences will not be shocked at the use of torture when it will ward off a great evil and no other method would work quickly enough to be effective. The question arises whether we should relax the prohibition against torture in such a case or trust public officers to perceive and act on a moral duty that is higher than their legal duty. I favor the latter course.

Posner notes that President Lincoln engaged in this form of civil disobedience when he suspended habeas corpus during the Civil War.

To allay privacy concerns about electronic surveillance, the judge also advocates a new rule designed to forbid the intelligence services and the Justice Department from using intercepted communications for prosecuting most non-national security crimes:

It is more important that the public tolerate extensive national security surveillance of communications than that an occasional run-of-the-mill crime go unpunished because intelligence offers were not permitted to share evidence of such a crime with law enforcement authorities…If such a rule (with its exceptions) were in place, I believe the government could, in the present emergency, intercept all electronic communications inside or outside the United States, of citizens as well as of foreigners, without being deemed to violate the Fourth Amendment, provided that computes were used to winnow the gathered data, blocking human inspection of intercepted communications that contained no clue to terrorist activity.

In chapter one, Judge Posner suggests that constitutional rights are mainly created by the way the U.S. Supreme Court interprets the constitutional text rather than via the rights stated in the text of the Constitution itself. In his conclusion, he writes that "...the Constitution is not the sum total of civil liberties. Statutes and treats provide additional protections. Constitutional law is a looser garment, continually rewoven by Supreme Court justices mindful (one hopes) of the need to balance security and liberty concerns as the weights of these concerns shift.”

There is a lot more to this thought-provoking book, and we highly recommend it for your consideration. Agree or disagree, you will gain a greater understanding of the issues involved, and as such, this work is a unique addition to the public security vs. personal privacy debate.