US lawmakers introduce bill requiring military interrogation of suspected terrorists

Republican Senator John McCain and Independent Senator Joe Lieberman unveiled legislation on Thursday 4 March to require the military to hold, interrogate and prosecute certain terrorism suspects and also bar them from receiving legal rights afforded most criminals in the United States.

The two senior senators offered the measure in the wake of the controversy over prosecuting the accused Christmas Day airplane bomber, Umar Farouk Abdulmutallab, in a U.S. criminal court instead of a military trial.

Under the proposed Enemy Belligerent Interrogation, Detention, and Prosecution Act all people detained by US authorities, both domestically and internationally, who are suspected of engaging in hostilities against the US or its coalition partners or of providing material support for those who do, would be placed in military custody for interrogation.

A special team, known as the High-Value Interrogation Team, would recommend which suspects would be sent to the military and the final decision would be made by the U.S. attorney general and Defense Department secretary, according to the proposed legislation.

Under the bill, before a final status determination is made, the suspect cannot be Mirandized or “otherwise … informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona.”

If the detainee were then determined to be an “unprivileged enemy belligerent,” the bill would mandate detention until the end of the hostilities against the US by the group with which the suspect was involved or supporting. In a press release, McCain explained:

[The legislation] sets forth a clear, comprehensive policy for the detention, interrogation and trial of enemy belligerents who are suspected of engaging in hostilities against the United States. This legislation seeks to ensure that the mistakes made during the apprehension of the Christmas Day bomber, such as reading him a Miranda warning, will never happen again and put Americans’ security at risk.

Senator Lieberman told reporters:

“These are not common criminals. They are war criminals and they should be treated according to the rules of the law of war”.

The American Civil Liberties Union (ACLU) criticized the legislation, describing it as “a direct attack on the Constitution.”

The Obama administration has been under fire by Republicans for handling most suspects through the traditional criminal justice system as well as advising them of their legal rights to have an attorney and remain silent during questioning.

Abdulmutallab was interrogated by FBI agents for about an hour before he stopped cooperating and he was then read his legal rights. Authorities later determined he had worked with al Qaeda militants in Yemen.

McCain questioned whether valuable intelligence was lost when Abdulmutallab stopped talking.

 “Americans are deeply disturbed by these failures. We are disturbed too,” he said.

Obama officials have defended their handling of terrorism suspects, including Abdulmutallab, noting that they obtained valuable intelligence from him even though he was given full U.S. legal rights and charged in a criminal court.

They have also expressed concerns that some proposals in Congress could delay interrogations of suspects and that prosecutorial discretion has been a function of the executive branch and Congress should not restrict it.

President Barack Obama’s fellow Democrats control both the Senate and House of Representatives, which could make it tough for the proposed legislation to move forward. However, some Democrats have backed efforts to require that the military deal with terrorism suspects.

NATO: new rules for “night raids”

In a directive that attempts to deal with one of the most contentious issues facing foreign forces in the war against insurgents, the head of US and NATO troops in the country has ordered changes to how ‘night raids‘ are conducted.

Foreign troops in Afghanistan have been ordered to carry out night-time raids on people’s homes only when absolutely necessary and only in the company of Afghan soldiers.

While they had “operational value, night raids come at a steep cost in terms of the perceptions of the Afghan people,” US General McChrystal said, though he seemed to minimise the resentment they breed as caused by “myths, distortions and propaganda” that “have little to do with the reality.”

The term “night raids” refers to raids on homes and other buildings between dusk and dawn by soldiers searching for militants and weaponry. They are criticised as a violation of Afghan culture, in which privacy and honour are paramount and women are generally kept out of sight of men who are not their relatives.

The raids, mainly on people’s homes, are now to be conducted with Afghan forces in the lead, women are to be searched by women, any property seized is to be recorded and any property damaged is to be compensated for.

In his directive, McChrystal said:

“Ultimately, how the Afghan people judge our conduct and perceive our intentions will be decisive factors in their decision to support their nation’s struggle against the insurgency.”

“We must remember that their protection, their respect and their support are the critical objectives for everything we do. And that reality must govern how we operate”.

“But if we do not conduct ourselves appropriately during night raids, we cede credibility to insurgents who can exploit our insensitivities in a persuasion campaign.

“It would be a tragic irony if operations we conduct to protect the population by ridding villages of insurgents are distorted to convince Afghans that we are unfeeling intruders”.

14 charged under Indonesia’s anti-terror laws

Indonesian police reported Thursday 4 March 14 suspects had been charged under anti-terrorism laws after they were arrested while allegedly undergoing military training in northern Aceh province.

The suspects were arrested over the past week after more than 100 armed police raided a site in Aceh Besar, in a remote region of northern Sumatra island, where around 50 militants were conducting training.

Four suspects were arrested during the raid. The remaining men were arrested in follow-up operations in which one was shot dead while trying to escape.

During the Aceh Besar raid police found rifles, Malaysian military uniforms and propaganda material including videos of the 2002 bombings on the Indonesian resort island of Bali which killed more than 200 people.

Provincial police chief Aditya Warman said last week those arrested were “strongly suspected” of being part of regional terror group Jemaah Islamiyah, which has been blamed for multiple attacks across Indonesia.

REPRIEVE seeks info from UK on Guantanamo detainee’s rendition

The legal aid charity Reprieve challenged Britain’s government to hand over documents relating to a former Guantánamo Bay detainee who alleges his extraordinary rendition flight refueled on British territory en route to another country where he was tortured.

Reprieve demanded that High Court justices order the government to provide information about the case of Mohammed Saad Iqbal Madni, a Pakistani who was returned home in August after seven years in custody.

According to the human rights group, Madni was detained in Indonesia on 9 January 2002, and sent to Egypt, where he allegedly endured three months of torture.

Reprieve has argued that there was “considerable circumstantial evidence” that the plane carrying Madni from Indonesia to Egypt touched down on the Indian Ocean island of Diego Garcia. It demanded that the British government hand over all the information it might have about the flight, including the names of the U.S. personnel Reprieve claims were aboard.

The organization wants the information so that it can sue the U.S. officials it says are responsible for Madni’s unlawful detention and torture.

Germany Federal Constitutional Court overturns data retention law

Germany’s Federal Constitutional Court on Tuesday 2 March overturned a 2008 law requiring telecommunications providers to store information on telephone calls, e-mails, and Internet use for six months for use in possible terrorism investigations, saying it posed a “grave intrusion” to personal privacy rights and must be revised, although it did not call into question the original EU law, which provides for member states storing telephone and internet data for up to 24 months.

The court found that Section 113 of the Telecommunications Act violates the privacy of German citizens and that the law lacks the controls to ensure the data is secure and properly utilized. The court also ruled that all stored data must be immediately deleted. The law had ordered that all data — except content — from phone calls and e-mail exchanges be retained for six months for possible use by criminal authorities, who could probe who contacted whom, from where and for how long.

“The disputed instructions neither provided a sufficient level of data security, nor sufficiently limited the possible uses of the data,” the court said, adding that “such retention represents an especially grave intrusion.”

The court said because citizens did not notice the data was being retained that caused “a vague and threatening sense of being watched.”

The law was passed in response to a 2006 European Union (EU) directive requiring the retention of telephone and e-mail records for use in terrorism investigations. The court, however, stated that the German law exceeded the requirements put forth by the EU.

The law has been widely criticized in Germany, with nearly 35,000 Germans filing complaints regarding the law with the court. Notably, Justice minister Sabine Leutheusser-Schnarrenberger joined the plaintiffs as a private citizen. Civil rights activists who had fiercely opposed the law welcomed the ruling.

“The government must not only refrain from collecting data, it must also protect citizens from the excessive gathering of information and building of profiles by the private sector,” Germany’s federal data protection watchdog, Peter Schaar, said in a statement.

Ignacio Czeguhn, a professor with Berlin’s Free University noted that while Tuesday’s ruling was limited to the government it could have an impact on the private sector as well.

“This (ruling) raises the question, of course, what happens if a company does this?” he asked.

Germany‘s top security official, Interior Minister Thomas de Maiziere, expressed disappointment at the ruling and said the government would propose narrower legislation quickly.

Germany had earlier already threatened to veto the European Union’s Telecommunications Directive 2006/24/EC (which came into force last year), a move which prompted the Council of Minister to take the unethical and devious step of redefining the Directive as belonging to the ‘commercial’ field (which requires only majority vote) as opposed to being a matter of ’security’ (in which there has to be unanimity).

Other EU member states implementing the EU-wide directive have ordered even longer storage.

Britain requires Internet service providers to store records of Web and e-mail traffic — though not their content — for a year, but a government proposal there to set up a vast central database of phone and Internet traffic met with strong opposition and was dropped.

The Netherlands also set 12 months for most data storage in a contentious decision, prompting the Dutch digital rights group Bits of Freedom to applaud the German ruling.

“This is a groundbreaking ruling with big consequences for the Netherlands, where the same mistakes have been made as in Germany only to a larger degree,” said spokesman Axel Arnbak. “This ruling goes to show: protest pays.”

In Sweden, where the EU directive has yet to be implemented, Justice Minister Beatrice Ask was quoted as saying the German ruling showed “that we have been right in that that it concerns sensitive issues that demand very difficult judgments.”

Austrian Infrastructure Minister Doris Bures — whose office has drafted its own version of the law — lauded the court decision. “Maximum data protection and maximum protection of basic rights have to be the guidelines,” for complying with EU directive, she said.

In Spain, telecom companies also have to retain data for whole year, but police are required to have a court order to access the data.

That condition seems to have been enough to prevent any significant protests in a country with a long history of fighting violent Basque separatism and more recently, Islamic terror groups, said Ruben Sanchez, spokesman for the consumer rights federation called FACUA.

The decision in Germany, Sanchez said, “might serve as a wake up call for governments not to overdo things.”

The ruling comes amid a European-wide attempt to set limits on the digital sphere in the name of protecting privacy, that includes disputes with Google Inc. over photographing citizens for its Street View maps and a vote against letting U.S. authorities see European bank transfers to track down terror cells.

US Supreme Court urged to clarify ‘material support to terrorism’ in Holder vs. Humanitarian Law Project

On 23 February the US Supreme Court heard oral arguments in the case Holder v. Humanitarian Law Project on whether a federal law [18 USC § 2339B(a)(1)] that prohibits providing ‘material support’ to any foreign group designated by the US government as terrorist violates the First Amendment. The material-support ban, which carries stiff criminal penalties for violators, has ignited sharply differing views across a wide range of groups, scholars and former government officials. But they nearly all agree it is now the “charge of choice” in federal prosecutors’ fight against terrorism since the Sept. 11 attacks.

The issue arose in a challenge by aid groups and individuals to parts of a key anti-terror law that bans “material support” to foreign terrorist organizations, even when that support consists of training and advice about entirely peaceful and legal activities.

The challenge was filed by the Humanitarian Law Project (HLP) on behalf on several groups that wanted to support the Turkish Kurdistan Workers’ Party (PKK) and the Sri Lankan Liberation Tigers of Tamil Eelam (LTTE), both of which have been designated as terrorist organizations by the US government.To the McCarthy-era amici and other amici groups such as the Carter Center, Christian Peacemakers and the Constitution Project, the material-support statute imposes guilt by association and punishes nonviolent advocacy.

The brief charges that the vague language of the law could prohibit the speech and advocacy of groups whose only purpose is to promote peace and deter terrorist activity.

Under the challenged law, individuals face up to 15 years in prison for providing “material support” to FTOs, even if their work is intended to promote peaceful, lawful objectives. “Material support” is defined to include any “service,” “training,” “expert advice or assistance” or “personnel.”

The vague language potentially criminalizes the humanitarian organizations’ efforts to persuade violent actors to renounce violence or cease their human rights abuses, and jeopardizes the provision of aid and disaster relief in conflict zones controlled by designated groups.

“If we were talking about McCarthyism, I would be happily filing a brief on their side,” said Peter Margulies of the Roger Williams University School of Law, who assisted in an amicus brief supporting the government on behalf of a group of scholars and former public officials with terrorism-related experience. “We’re not talking about speech here, but conduct. When the petitioners say they want to help the Tamil Tigers get tsunami assistance, that’s not different from giving them cash.”

Counsel for HLP argued that the law violates the First Amendment right to free speech. According to Georgetown Law Professor and lawyer for the project David D. Cole, the Court should interpret the material support law to be limited to the kind of aid that is provided with the specific aim of supporting violent or terrorist acts by blacklisted groups.   He told the Court that there was no “reasonable likelihood” that the kinds of speech activities that the Project supporters wanted to undertake would further the terrorist aims of groups on the blacklist.

“The core of what our clients wanted to do was pure speech promoting lawful, nonviolent activities,” Cole said. “Our First Amendment complaint is that the material support provisions penalize speech and association.The government spent the last 10 years arguing our client cannot advocate for peace,” said David Cole.

On the other hand, US Solicitor General Elena Kagan argued that the law is a “vital weapon” for combating terrorism. Even while making some such concessions, Kagan insisted that, because the targeted groups were foreign, Congress had wide authority to pass laws to limit how Americans might interact with those groups.  And she made sure that any concession she made was only to put beyond the law actions of “independent advocacy” by Americans not directly tied to the listed organization itself.  She said that the kinds of activities the law might reach that would implicate the Constitution were a mere “thimbleful” compared to the “ocean” of support activities that the law would legitimately forbid.The government also argues that the law regulates conduct, “only incidentally affecting speech.” Because it regulates conduct, it is subject to intermediate, not strict, constitutional scrutiny, under U.S. v. O’Brien.

“The statute easily survives such scrutiny because it is narrowly tailored to advance important governmental interests unrelated to the suppression of petitioners’ expression,” Kagan argues. “Finally, the statute does not infringe associational rights, because it does not prevent petitioners from joining or otherwise associating with foreign terrorist organizations.”

Cole countered that, during oral argument before the 9th Circuit, the government said his clients would violate the statute if they filed an amicus brief for the Tamil Tigers, advocated on the group’s behalf before the United Nations, asked Congress to grant them an exemption from the statute or provided advice on how to mediate disputes.

“The government argues, even if the aid cannot be transformed into illegal ends, anything you do that buttresses the legitimacy of the terrorist organization is problematic because, in the long term, it allows the organization to gain support and further its terrorist ends — that’s the broadest argument,” Cole said. “The response is it’s not a permissible goal under the First Amendment to cut off speech because you don’t like the message.”

He argues that O’Brien does not apply because speech, not conduct, is being regulated. On the association issue, Cole said, “The very same advocacy we seek to do is permissible if done in conjunction with the Palestinian Liberation Organization but not the Kurdistan Workers Party. That violates the right of association as does the personnel prohibition.”

In their amicus brief, the Carter Center and peace groups contend that effective advocacy for peace often requires direct persuasion and lobbying of groups or individuals who engage in violence to choose nonviolent means to achieve their ends.

Like Cole’s clients, said their counsel, Melissa Goodman of the American Civil Liberties Union, they are “left hopelessly guessing — at the risk of grave penalty” whether their work “crosses the line from constitutionally protected to criminally proscribed.”

Several justices appeared to express concern that the law was overly restrictive. (More info here.)

Of the nine Supreme Court members, Justice Antonin Scalia appeared most supportive of the law, saying it criminalizes help and assistance. “That’s quite different from a law directed explicitly at speech.”

The NYT said that the justices’ lively questioning complicated rather than clarified matters. They discussed travel to Cuba, the Communist and Nazi Parties, Tokyo Rose, treason and whether it is a crime to teach a terrorist how to play the harmonica.

Interview with the director of HLP here and here

DOJ clears Bush administration lawyers of professional misconduct allegations

(Jurist) The US Department of Justice (DOJ) has overruled the findings of a report released Friday 19 February concluding that two Bush administration lawyers committed professional misconduct when they wrote memos  authorizing the use of certain interrogation techniques that critics have called torture. Instead, the DOJ said that John Yoo and Jay Bybee were only guilty of “poor judgment” in writing the memos.

An internal ethics investigation by the Office of Professional Responsibility (OPR) concluded that Yoo had committed “intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.” The report also found that Bybee had committed professional misconduct when he acted in “reckless disregard” of his duty to exercise independent legal advice.

However, David Margolis, an associate deputy attorney general, released a separate memo overruling the OPR’s report, finding its analysis was flawed because it did not have a clear definition of what constitutes professional misconduct. Margolis said:

This decision should not be viewed as an endorsement of the legal work that underlies those memoranda. However, OPR’s own analytical framework defines “professional misconduct” such that a finding of misconduct depends on application of an known or unambiguous obligation or standard to the attorney’s conduct. I am unpersuaded that OPR has identified such a standard.

Analysts divided bitterly on the decision. At issue are the sometimes vague standards for professional competence that lawyers must meet. Watchdogs generally focus on basic concepts, such as meeting deadlines and protecting clients’ money, four experts said.

Rarely, the experts said, are lawyers scrutinized for judgment calls, such as how broadly the constitution and legal precedent inhibit presidential authority, a question that was at the heart of the Yoo and Bybee memos.

The most controversial issue at stake of course is the definition of torture adopted in the Memos.

Stuart Taylor makes a sustained effort to defend Jay Bybee and John Yoo. He expresses his support for the “analytical approach” that Yoo pioneered in the memos, starting with the idea that while techniques like waterboarding may well be “torture” as the term is commonly used, it is not “torture” within the specific definition that Congress put forward.

David Luban replied to Taylor in a recent post:

The core definition of torture in both the U.S. torture statute and the Convention Against Torture is intentional infliction of “severe physical or mental pain or suffering.” That’s not a narrow or technical definition (although Congress went on to give a narrow definition to the mental pain or suffering part). In other words: the colloquial meaning of ‘torture’ is virtually the same as the legal definition. The OED definition, by the way, is so similar to the CAT definition that it seems likely that whoever drafted article 1 of CAT may have drawn on the OED.

The torture memo’s were an issue in a recent decision of the U.S military’s highest court on 16 February to review the conviction of an Army reservist who prosecutors said was the ringleader of detainee abuse at Abu Ghraib prison in Iraq.

The United States Court of Appeals for the Armed Forces said it would consider whether the trial judge erred by refusing to let jurors see memorandums approving “enhanced interrogation tactics” for detainees.