Kagan’s position on the executive power’s authority in terrorism cases

Michael Isikoff reports in Newsweek about Obama’s ‘hidden benefit’: boosting the chances of the administration in prevailing in major terrorism cases including on granting Bagram detainees habeas rights, the state secrecy privilege or getting accountability for rendition abuses.

The reason: Kagan will inevitably have to recuse herself from an array of cases where she has already signed off on positions staked out by the Obama administration relating to the detention of terror suspects and the reach of executive power. As a result, the seat occupied by Justice John Paul Stevens—the most forceful advocate on the court for curbing presidential power—will be replaced by a justice who, on some major cases over the next few years, won’t be voting at all.
But the practical implications of Kagan’s selection for the Obama team are still very real: although there has  been a vigorous dispute over precisely how many cases Kagan would have  to recuse herself from, she would certainly have to do so in those—such  as those involving prisoners at Bagram—where she has already signed a  brief submitted by the government.

She would also most likely have to recuse herself from many  others—including those involving state-secret claims and the legal  rights of Guantánamo detainees—where she has “personally participated”  in decisions by her office to file briefs even if her name does not  appear on them, said Tom Goldstein, a Washington appellate lawyer who writes the Scotus Blog.

In effect, the “liberal” side just lost a  vote and arguably a crucial one on a court that on major issues of  executive power has been narrowly divided.

Andrew Klein comments upon the Kagan nomination at the Huffington Post as well. Quote:

Kagan’s selection appears to me as emblematic of the Obama administration as either passing the buck on or embracing the Bush approach to executive power.(…)

Kagan may very well prove to be something of an albatross around the  Obama administration, both in real time and in the textbooks, as she  represents the Executive Branch far outpacing the courts, Congress and  public opinion when it comes to dealing with terrorism, domestic and  abroad. As Obama works to make sense of America’s trajectory as the  once-great-now-hampered world power by keeping Congress in the loop and  talking directly to the American people, he’s nominating Supreme Court justices who will give his and subsequent administrations the legal elbow room for torture and warrantless wiretapping. (…)

The Obama administration may not be trafficking with those policies, butI certainly am not comfortable seeing this legal gray area passed on to a future president with less nuance and sense of purpose than Obama.

EU-US restart talks on new SWIFT agreement

On Tuesday 11 May, the Council of the EU adopted its negotiation mandate for obtaining the conclusion of a long‐term agreement between the EU and the US on the transfer of banking data in the fight against terrorism (“Swift”). Consequently, on the 12 May the Commission and the US Treasury restarted talks to reach a deal on the contested financial data sharing issue in an effort to clinch an agreement before the end of June 2010, Commission sources said.

A Commission source told Euractiv.Com that “in the coming months little will be known about the substance of the  actual negotiations”

The agreement will be concluded only after the adoption by the member states of the EU at qualified majority voting and the approval of the European Parliament. The Parliament introduced two weeks ago theconditions on the content of a future agreement, including for bulk transfers of personal data to the USA to be avoided, if necessary by processing them within the EU, and for Europe’s citizens to be guaranteed the right of appeal to the US authorities.

Mauritania starts trials of al Qaeda suspects

Reuters reports that a Mauritanian court on Sunday began the trials of 19 suspected members of Al Qaeda’s north African wing, including three men suspected of the killing of four French tourists in 2007.

The trials come amid growing efforts by the governments of Algeria, Mauritania, Mali and Niger to counter a wave of recent desert kidnappings of foreigners claimed by al Qaeda in the Islamic Maghreb, or AQIM.

The three men — Sidi Ould Sidna, Mohamed Ould Chabarnou, and Maarouf Ould Haiba — are accused of having shot five French tourists in the town of Aleg in December 2007, leaving four dead and one seriously injured.

Nine other suspects are being tried in the Aleg case for their complicity. Six other trials for other incidents are scheduled for the remaining AQIM suspects.

Lawyers for Chabarnou and Haiba said their clients would plead not guilty, and Haiba’s lawyer said his client’s confession was obtained illegally.

“I will first tackle the flaws of the record, as, among other things, the confessions contained in the minutes were obtained through torture,” lawyer Maitre Zaim told Reuters before the trial.

Isselmou Ould Mustafa, editor of the local newspaper Tahalil Journal, said security sources in Mauritania believed the three men were associated with AQIM leader Mokhtar Belmokhtar, and had been trying to boost their credibility within the group with a high profile attack.

Sidna and Chabarnou were arrested in Guinea Bissau in January 2008, while Haiba was arrested shortly afterwards in Nouakchott.

AQIM grew out of the militant Salafist movement in Algeria, and has shifted south into the Sahel region in recent years where it is taking advantage of the vast and lawless desert to pursue its operations.

Security analysts believe the group is becoming less ideological and more opportunistic, raising funds by ransoming hostages and getting involved in drug trafficking.

Maldives offers to accept two Guantanamo detainees

[JURIST] Maldivian President Mohamed Nasheed has offered to accept two detainees held at the US military prison at Guantanamo Bay, discussing his decision during his weekly radio address on Friday 14 May. The offer is being described as a humanitarian gesture, but opposition parties have objected the move of the detainees. The Dhivehi Qaumee Party has threatened to file a case against the government for violating national security, and the Dhivehi Rayyithunge Party has submitted a case to the parliamentary National Security Committee. Nasheed encouraged those opposing the decision to submit their complaints and explained the offer, saying:

    In my view, it is not in line at all with our Constitution, Islam, or ‘Maldivianness’ that we refuse to help especially Muslims, especially those wrongly imprisoned.

The prisoners have not been identified, but one is known to be from Palestine. The only Maldivian held at Guantanamo, Ibrahim Fauzee, was flown home in May 2005 after being arrested in 2002 while studying Islam in Pakistan.