US ‘secret war’ expands with Special Operation forces

The Washington Post has an article today describing the way Obama has expanded the scope of the use of Special Operation forces.

Beneath its commitment to soft-spoken diplomacy and beyond the combat zones of Afghanistan and Iraq, the Obama administration has significantly expanded a largely secret U.S. war against al-Qaeda and other radical groups, according to senior military and administration officials.
Special Operations forces have grown both in number and budget, and are deployed in 75 countries, compared with about 60 at the beginning of last year. In addition to units that have spent years in the Philippines and Colombia, teams are operating in Yemen and elsewhere in the Middle East, Africa and Central Asia. (…)

The surge in Special Operations deployments, along with intensified CIA drone attacks in western Pakistan, is the other side of the national security doctrine of global engagement and domestic values President Obama released last week.
One advantage of using “secret” forces for such missions is that they rarely discuss their operations in public. For a Democratic president such as Obama, who is criticized from either side of the political spectrum for too much or too little aggression, the unacknowledged CIA drone attacks in Pakistan, along with unilateral U.S. raids in Somalia and joint operations in Yemen, provide politically useful tools.

Read a comment by Emptywheel on this issue.

Event: Law enforcement as a counterterrorism tool

A Conversation with Assistant Attorney General for National Security David Kris
Law Enforcement as a Counterterrorism Tool

Event Summary

With prosecutions under way involving the alleged Times Square bomber and the accused Christmas Day airline bomber, the disruption of an al-Qaeda plot to attack the subways in Manhattan, and the conviction of a key figure in the 2008 Mumbai terror attacks, the U.S. Department of Justice has had a number of high-profile counterterrorism successes of late. Under the direction of Attorney General Eric Holder, how does the administration view combating the ongoing threat of terrorism, preventing future attacks and prosecuting suspected terrorists?

On June 11, the Brookings Institution (Washington DC) will host David Kris, assistant attorney general for national security at the U.S. Department of Justice, to discuss the role of law enforcement as a counterterrorism tool. Mr. Kris will examine the recent history of U.S. counterterrorism strategy; provide a conceptual framework for thinking about how law enforcement can disrupt plots, incapacitate terrorists, and collect intelligence; and describe how law enforcement has been used in coordination with other vital counterterrorism methods.

Netherlands: Court authorizes extradition of terror suspect

On May 31, 2010, the Court of Rotterdam, in the Netherlands, authorized the extradition to the United States of a terrorism suspect from Somalia. The suspect, Mohamud Said Omar, had been arrested in the Dutch refugee center at Dronten in November 2009. He is accused of belonging to a terror group, the Al-Shabab, and of conspiring to kill, kidnap, or mutilate people. The United States also alleges that he gave essential aid to other terrorists in the U.S. and Somalia.

In order to obtain the extradition order, the U.S. government provided guarantees that the defendant would not face the death penalty upon conviction in the United States, removing the major barrier to extradition.

The decision to grant the extradition request will be appealed to the Dutch Supreme Court. The defense attorney, Bart Stapert, has argued that extradition should not be permitted because U.S. counterterrorism laws are harsher than similar laws in the Netherlands and that the defendant’s life will be at risk if he is sent to the United States. Stapert said, “[h]e will not need to fear for his life in the United States, but he risks being expelled to Somalia after serving his sentence in the United States. And in Somalia his life may indeed be in danger.” The appeal process is expected to take months.

UN Special Rapporteur’s Report on legal issues raised by targeted killings

The report to the Human Rights Council on legal issues raised by targeted killings by Philip Alston, the Special Rapporteur on extrajudicial, summary and arbitrary executions, has been released.

As indicated in the summary

In recent years, a few States have adopted policies that permit the use of targeted killings, including in the territories of other States. Such policies are often justified as a necessary and legitimate response to “terrorism” and “asymmetric warfare”, but have had the very problematic effect of blurring and expanding the boundaries of the applicable legal frameworks. This report describes the new targeted killing policies and addresses the main legal issues that have arisen.

As he presented his reports to the Human Rights Council, Alston also stressed the need for international inquiries into serious allegations of extrajudicial executions in cases where national probes have been insufficient, citing examples relating to the Gaza Strip and Sri Lanka.

Read comments on the report by:
Kenneth Anderson, Opinio Juris
Deborah Pearlstein, Opinio Juris
Emptywheel

Algerian detainee’s plea fails

(SCOTUS Blog) The D.C. Circuit Court on Thursday refused to reconsider one of its broadest rulings against judges’ power to control how or when the government moves detainees out of the U.S. military prison at Guantanamo Bay.  It did so this time without any noted dissent, thus rejecting a plea by an Algerian national, Ahmed Belbacha, who fears torture or even death if he is transferred back to his homeland.  The Circuit Court has yet to rule directly on a government plea to deny any legal relief to Belbacha by dismissing his case.

Belbacha’s lawyers had urged the Circuit Court to use his case as a vehicle to reexamine its decision in April of last year in the case of Kiyemba v. Obama (05-5487), the one in which a Circuit Court panel had ruled that federal judges have no authority to block the transfer of any detainee out of Guantanamo.   That decision (informally known as “Kiyemba II”) was denied en banc review last July by the Circuit Court (three judges dissented), and then was denied review by the Supreme Court on March 22, and nothing has happened directly in the case since then.

Belbacha’s counsel had argued that, since all panels of the Circuit Court were bound by the Kiyemba II ruling curbing judges’ power over transfers (unless that were reconsidered by the en banc Court), his chances of being protected against an involuntary transfer to Algeria were remote, at best. 

Read more here.

EU-US joint declaration on counterterrorism cooperation

Human rights and respect for Islam and religious differences should play a vital role in efforts to combat terrorism, the European Union and the United States said in a joint declaration Thursday.

The transatlantic allies also pledged to bolster cooperation in diplomacy, law enforcement, judicial assistance, exchange of information and efforts to control suspect cash flows.

The policy was outlined days after U.S. President Barack Obama unveiled a new national security doctrine.

Transatlantic cooperation on combating terrorism has improved since Obama took office and sought a more unified approach to shared problems facing the United States and Europe.

EU governments have pledged to help out in his efforts to close the Guantanamo Bay prison in Cuba.

New CRS reports

“Terrorism, Miranda, and Related Matters“, 24 May 2010

“Defense: FY2011 Authorization and Appropriations”, 25 May 2010.

“Quadrennial Defense Review 2010: Overview and Implications for National Security Planning”, 17 May 2010.

China bans use of evidence obtained through torture

[JURIST] China’s Supreme People’s Court announced Sunday that evidence obtained through violence or intimidation will be barred from use in criminal trials and death penalty cases. The new regulations require prosecutors to provide the court with records from interrogations and allow defendants convicted in death penalty cases to request an inquiry into the validity of their interrogations. Evidence from unnamed sources is also barred from being used in death penalty cases.

The announcement comes weeks after Zhao Zuohai, a man convicted of murder, was released from prison following the realization that his alleged victim was still alive. Zhao stated he confessed only after being beaten by police.

Legal experts in China indicated that the new regulations mark the first time government has acknowledged that evidence obtained through coercion will be useless in court. Advocacy groups have praised the new law  but indicate it is only a small step and that larger steps need to be taken by the government in order to ensure true reform.

ECtHR Grand Chamber: prohibition of torture in ticking bomb situation?

In Gafgen v. Germany, issued on 1 June, the ECtHR Grand Chamber, reversing a decision by a Chamber, held that there was a violation of article 3 of the European Convention (prohibition of torture) in a case where law enforcement authorities used the threat of torture in an attempt to extract information from a suspect about someone whose life was believed to be in danger.

The case at hand originated from the application of a German national, who claimed to have been tortured during police interrogation in order to make him disclose the whereabouts of a boy.

According to Professor Schabas this case is “about a close as we can get to the fabled ‘ticking bomb’ situation.

First trial opens for four Afghan detainees in Bagram

Four Afghan detainees held in the U.S. prison at Bagram appeared before three Afghan judges on Tuesday 1 June, a step towards a plan to hand over control of the detention facility at Bagram Air Field to the Afghan government.

At Tuesday’s preliminary hearing, an Afghan prosecutor formally accused the four detainees, three adult brothers and their elderly father, of involvement in bomb-making. Their fingerprints had been found on several homemade bombs, one of which had wounded five U.S. soldiers, the prosecutor said.

The detainees’ government-appointed defence lawyers however said they had not had a chance to review their clients’ cases. The defendants also objected to court proceedings being conducted in Dari instead of their native Pashto language.The judge adjourned the hearing to let the defence lawyers review their cases and a Pashto interpreter be found.

Brigadier General Mark Martins, deputy commander for U.S. detention operations in Afghanistan, denied the first hearing had been rushed through prematurely.

“No, we are moving as fast as we can to build capacity but not at the expense of standards,” he said. “We are in between two systems right now,” he added, referring to the transition from U.S. to Afghan control.

Human Rights First expressed concerns about the lack of transparency surrounding the trial procedures and the apparent failure to provide detainees with adequate access to their lawyers before the hearing and to appropriate translation services.

“While we are pleased to hear that a few Afghan detainees will finally receive a trial, we are dismayed that the proceeding so far has been chaotic and so little information has been made available about how this trial will proceed and whether more such trials are planned,” said Human Rights First’s Daphne Eviatar.

Eviatar also observed,

 “However, we remain concerned that the United States government has not indicated whether there will be any more such trials, what rules govern them, how much access the lawyers have to their clients and to the relevant evidence, and what kind of evidence will be admissible in this new procedure.”