US Biometrics Agency

A U.S. Government national security agency called the Biometrics Identity Management Agency (BIMA) has been established.  It supersedes a Biometrics Task Force that was established in 2000. Though nominally a component of the Army, the biometrics agency has Defense Department-wide responsibilities.

“The Biometrics Identity Management Agency leads Department of Defense activities to prioritize, integrate, and synchronize biometrics technologies and capabilities and to manage the Department of Defense’s authoritative biometrics database to support the National Security Strategy,” according to a March 23 Order issued by Army Secretary John M. McHugh that redesignated the previous Biometrics Task Force as the BIMA.

Biometrics is generally defined as “a measurable biological (anatomical and physiological) [or] behavioral characteristic that can be used for automated recognition.”

“Biometric data [are] normally unclassified,” according to a 2008 Directive.  “However, elements of the contextual data, information associated with biometric collection, and/or associated intelligence analysis may be classified.”

“Biometrics-enabled Intelligence [refers to] intelligence information associated with and or derived from biometrics data that matches a specific person or unknown identity to a place, activity, device, component, or weapon that supports terrorist / insurgent network and related pattern analysis, facilitates high value individual targeting, reveals movement patterns, and confirms claimed identity.”

“Biometrics is an important enabler that shall be fully integrated into the conduct of DoD activities to support the full range of military operations,” the 2008 directive stated.

“Every day thousands of [biometric] records are collected and sent to the Department of Defense (DOD) Automated Biometric Identification System (ABIS) to store and compare against existing records,” a 2009 DoD report (pdf) said. “The technology is improving such that a submission from theater [e.g., in Afghanistan] can be searched in the DOD ABIS and a response sent back to theater in less than two minutes.”

“Realtime positive identification of persons of interest enables Coalition forces to target, track, and prosecute known or potential adversaries,” the DoD report said.

Obama legal team divided on wartime detentions of ‘enemy combatants’

The NY Times reports on the rift between mainly State Department and DoD lawyers over whether Presidential wartime powers are limited to those actually in al Qaeda, or include those more loosely affiliated with the organization. the rift started when John D. Bates, a federal judge overseeing several cases involving detainees in Guantánamo Bay asked a provocative question in February 2009: Did the new administration want to modify Mr. Bush’s position that the president could wield sweeping powers to imprison people without trial as wartime detainees?

The Obama administration came back with arguably a more modest version of the Bush position. (All details about that court filing here.) The NYT reports:

But behind closed doors, the debate flared again that summer, when the Obama administration confronted the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia — far from the active combat zone — and was being held without trial by the United States at Guantánamo. Mr. Bensayah was accused of facilitating the travel of people who wanted to go to Afghanistan to join Al Qaeda. A judge found that such “direct support” was enough to hold him as a wartime prisoner, and the Justice Department asked an appeals court to uphold that ruling.

The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters.

That view was amplified after Harold Koh, a former human-rights official and Yale Law School dean who had been a leading critic of the Bush administration’s detainee policies, became the State Department’s top lawyer in late June. Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case.

Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war — now or in the future.

Result?
The new acting head of the department’s Office of Legal Counsel — David Barron – didn’t (yet) decisively decide who was right. He issued a “a preliminary draft memorandum stating that while the Office of Legal Counsel had found no precedents justifying the detention of mere supporters of Al Qaeda who were picked up far away from enemy forces, it was not prepared to state any definitive conclusion..”

So with no consensus, the legal team decided on a tactical approach. For as long as possible they would try to avoid that hard question. They changed the subject by instead asking courts to agree that people like Mr. Bensayah, looked at from another angle, had performed functions that made them effectively part of the terrorist organization — and so were clearly detainable.

John Bellinger sends a semi-kiss of death along the way and is quoted in the NYT as saying:

“I think the change in tone has been important and has helped internationally,” said John B. Bellinger III, a top Bush era National Security Council and State Department lawyer. “But the change in law has been largely cosmetic. And of course there has been no change in outcome.”

Call for terrorism related papers for the World Congress of the International Association of Constitutional Law

The International Association of Constitutional Law is inviting papers for its World Congress which will take place in Mexico city, from 6 to 10 December 2010.

There are two principal formats for the scholarly program of the world congress: plenary sessions and workshops. Plenary sessions are addressed by invited speakers (programme here) while workshops are open to participation by all scholars of constitutional law.

Workshop 6 deals with “the rule of law in an age of terrorism” and the IACL secretariat is looking for papers on the following subjects:

* Terrorism and principles of ethics – an oxymoron? The fight against terrorism poses severe legal questions many of which can also be addressed as ethical dilemmas: the practice of torture, targeted killing, the bombing of civilians in war, the distinction between consequences that are intended and those that are foreseen but unintended, to name but a few. This aspect call for papers dealing with the morality of military action against terror

* Terrorism and proportionality – The principle of proportionality forms part of almost every national legal system.  In our workshop, we may discuss its function in human rights law, and also in the law of armed conflict. How do these quite different constructions affect the constitutional debate on proportionality in counter-terrorism?  Some of the specific questions that arise relate to use of force that causes civilian casualties, to the use of normally prohibited methods of interrogation, or to the risk that the proportionality principle undermines effective action against terrorism.

* Preventing terrorism – this aspect focuses on the tools and means available in modern democracies in order to neutralize the basis of terrorism, and may deal with counter-terrorism measures, technology, international efforts and recommendations for governments.

* The financing of terrorism –the instruments and rules enacted to fight the financing of terrorism: are they effective? Terrorist financing from a transnational perspective: Is an international clear guideline – or a “joint terrorist financial” database possible at all? What are the new developments and regulations on the efforts to linkage money laundering and financing of terrorism. The coordination needed between law enforcement and intelligence agencies in order to combat terrorist finance- how it influences human rights protection?

* Recent developments in couner-terrorism legislation – Constitutional rights and the constitutionality of counter-terrorism measures. Tension between freedom and security and comparative case-law; counter-terrorist laws which allows the banning of political parties who support terrorist acts and the use of violence.

* International humanitarian law and the fight against terrorism- the concept of “terrorism” under international law: Is Terrorism an international crime? May the application of international humanitarian law constitute an obstacle to the fight against terrorism?  Or should it govern the fight against terrorism, pushing aside human rights law and constitutional rights?

Expressions of interest in submitting a paper to a particular workshop should be sent to the organising committee, either at the time of registration or afterwards. These should take the form of a title and an abstract and should indicate the name, institutional affiliation and contact details of the author. Expressions of interest may be sent by email to mexico2010.iacl@gmail.com.
Please state clearly in the subject line of the email the name and number of the workshop for which the paper is being proposed. The deadline for expressions of interest is 1 May 2010.

More info on how to submit a paper you can find here.

Romaniuk: Multilateral Counter-Terrorism: The Global Politics of Cooperation and Contestation

Peter Romaniuk (City Univ. of New York – Political Science) has published Multilateral Counter-Terrorism: The global politics of cooperation and contestation (Routledge 2010). Here’s the abstract:

Contemporary terrorism is a global phenomenon requiring a globalized response. In this book Peter Romaniuk aims to assess to what extent states seek multilateral responses to the threats they face from terrorists. Providing a concise history and a clear discussion of current patterns of counter-terrorist co-operation, this book: analyses a wide spectrum of institutions from the United Nations and its various bodies to military, intelligence and law enforcement agencies; explains the full range of cooperative counter-terrorist activities and the patterns across them, from the use of intelligence and military force to criminal law measures, financial controls and diplomacy; examines under what conditions states cooperate to suppress terrorism; and evaluates how existing international institutions been affected by the US-led “global war on terror,” launched after the 9/11 terrorist attacks.

The book contests that the whilst there are several notable examples of successful counterterrorism cooperation, past and present, this work suggests that the broader trend can only be understood if we accept that across the domains of counter-terrorism policy, cooperation often resembles a competition for influence over outcomes.