Al-Tatarrus: al-Qaeda’s Justification for Killing Muslim Civilians

The Jamestown Foundation has recently published (Terrorism Monitor Volume: 8 Issue: 34) an interesting paper by Jack Barclay on the notion of ‘al-Tatarrus’ and its use by the global Salafi-Jihadist movement as a justification for killing muslim civilians.

It is well known that thousands of Muslim civilians died as a result of armed assaults and suicide bombings jihadist conflict zones from Chechnya to Iraq, Somalia and Afghanistan. Most of the times, the jihadists have denied responsibility or have sought to blame security forces. At other times, the jihadists have used conspiracy theories to shift blame.

However, there are cases when jihadists have claimed responsibility for attacks killing Muslims, justifying them on the basis of theological legitimacy. One of the concepts most used is “Hukm al-Tatarrus”, a notion which has its roots in classical Islamic jurisprudence and was traditionally used to establish the permissibility of a Muslim army attacking a non-Muslim enemy in particular situations.

More specifically,  al-Tatarrus describes circumstances in which the obligation to fight Islam’s enemies – and in so doing protect the wider Muslim populace – outweighs the threat to those Muslim civilians unfortunate enough to be caught between the two sides.

Barclay describes in his paper how this ancient notion is in fact  being reinterpreted among Jihadist ideologues, with the aim of eventually convincing the Muslim world to accept that modern Jihad by its nature will result in a high civilian casualty toll.

Read more here.

UN: More Than 230 Civilians Killed in Two Weeks in Mogadishu

According to a report by the United Nations refugee agency, the past two weeks of fighting in the Somali capital city of Mogadishu has left at least 230 civilians killed and over 400 others wounded. An estimated 23,000 people were displaced by the clashes pitting Government forces against Al-Shabaab insurgents during the same period, according to Melissa Fleming, spokesperson for the UN High Commissioner for Refugees (UNHCR). “So far this year over 200,000 civilians are estimated to have fled their homes,” she told reporters in Geneva.

Al-Shabaab on Tuesday demanded that Uganda withdraws her peacekeeping troops from the war-torn Somalia, or face more attacks. Accordingly, security has been stepped up to counter the threats, said Police spokeperson Judith Nabakooba.

UN official urges countries to implement all four pillars of UN counterterrorism strategy

Jean-Paul Laborde, who chairs the UN Counter-Terrorism Implementation Task Force (CTITF), made his appeal as the General Assembly is set begin its biennial review of the strategy tomorrow.

“We all know that hard power measures alone have failed to stop terrorist attacks or at least have not succeeded,” Mr. Laborde told reporters in New York this afternoon.

If just 10 per cent of the investment in hard power was put towards soft power measures, such as fostering education and promoting respect for human rights, “we really can reduce these terrorist threats,” he stressed.

Mr. Laborde, who also serves as Director of the Counter-Terrorism Implementation Task Force Office, underlined that it is “imperative” that using force to fight terrorism is combined with preventive measures to curb the potential recruitment and training of terrorists, as well as terrorist attacks before they happen.

12 U.S. soldiers charged in Afghan civilian murder complot

In one of the most serious accusations of war crimes to emerge from the Afghan conflict, twelve American soldiers face charges over forming a secret “kill team” to carry out random executions of Afghans, collected their fingers as trophies, and then organised a cover-up. The killings are alleged to have been carried out by members of a Stryker infantry brigade based in Kandahar province in southern Afghanistan.

Military officials said the next step for the accused soldiers will be what is known as an Article 32 hearing, similar to a grand jury, after which lawyers normally decide whether or not to seek the death penalty in the case.

Five of the soldiers are charged with premeditated murder of three Afghan civilians (violating UCMJ, art. 128) who were allegedly killed for sport in separate attacks this year. Three of the soldiers were charged with one count each of premeditated murder, while two others were charged earlier this month with three counts of premeditated murder and one count of assault. In two of the incidents, grenades were thrown at the victims and they were shot, according to charging documents. The third victim was shot.The soldiers are accused of killing the three Afghans while on patrol and threatening violence against anyone who dared to report the events, according to statements made to military investigators.

The victims were identified as Gul Mudin, who died in January, Marach Agha, killed on or about February 22 and Mullah Adahdad, killed on or around May 2.

Seven others are accused of covering up the killings and assaulting a recruit who exposed the murders when he reported other abuses, including members of the unit smoking hashish stolen from civilians. Charges against them include impeding an investigation, aggravated assault with a deadly weapon, unlawfully striking another soldier and conspiracy to commit assault and battery.

Army Staff Sgt. Calvin Gibbs and Spc. Jeremy Morlock are the central figures in the case. They are charged in all three killings. The other murder suspects are Pfc. Andrew Holmes of Boise, Idaho ; Spc. Michael Wagnon of Las Vegas; and Spc. Adam Winfield of Cape Coral, Fla.

Morlock, a 22-year-old from Wasilla, Alaska, has played a major role in helping the Army develop the case. He has given numerous details about his involvement in the killings and also implicated others. His attorney, Michael Waddington, said he will try to have those statements withdrawn because his client spoke while under the influence of prescription drugs taken for battlefield injuries.

The charges will be considered by a military grand jury later this month which will decide if there is enough evidence for a court martial.

Winfield Charge Sheet
Quintal Charge Sheet
Corey Moore Charge Sheet
Ashton Moore Charge Sheet
Wagnon Charge Sheet
Stevens Charge Sheet
Kelly Charge Sheet
Holmes Charge Sheet
Bram Charge Sheet
Morlock Charge Sheet

US Court throws out Mohamed vs. Jeppesen rendition lawsuit in light of state secrets privilige

A sharlply-divided en banc 9th Circuit has reversed 6 to 5 an earlier panel decision that had in turn reversed a district court decision dismissing this civil suit relating to the CIA’s rendition program. The Ninth US Circuit Court of Appeals relied on a broad “state secrets” theory to put a stop — before any evidence was offered — to a lawsuit seeking to hold a government contractor partly responsible for the CIA’s rendition programme. Jeppesen Dataplan, a Boeing subsidiary, provided air transport and other international logistical support to the CIA operation.

“We have thoroughly and critically reviewed the government’s public and classified declarations and are convinced that at least some of the matters it seeks to protect from disclosure in this litigation are valid state secrets.” (…)

 “The government’s classified disclosures to the court are persuasive that compelled or inadvertent disclosure of such information in the course of litigation would seriously harm legitimate national security interests.” (…)

“Every judge who has reviewed [that record]…agrees that in this sense  the claim of privilege is proper, although we have different views as to the scope of the privilege and its impact on plaintiffs’ case.”

“We reach this conclusion because all seven of plaintiffs’ claims, even  if taken as true, describe Jeppesen as providing logistical support in a broad, complex process, certain aspects of which , the government has  persuaded us, are absolutely protected by the state secrets  privilege….Because the facts underlying plaintiffs’ claims are so  infused with these secrets, any plausible effort by Jeppesen to defend against them would create an unjustifiable risk of revealing state secrets….”

The majority, while seeking to remove the case entirely from the courts, suggested that there might be other remedies for those claiming harms from the rendition program.  Among the suggestons were a compensation scheme, some chance to sue the government for damages in a special claims court, and possibly bills in Congress to provide individual compensation to the detainees.

Although the executive branch won in court, the majority judges were troubled by their ruling.

“After much deliberation, we reluctantly conclude … the plaintiff’s action must be dismissed,” wrote Judge Raymond Fisher.

Judge Michael Daly Hawkins wrote for the five dissenting judges, who said the lawsuit was dismissed too quickly and that the men should be allowed to use publicly disclosed evidence to prove their case.

They are not even allowed to attempt to prove their case by the use of nonsecret evidence in their own hands or in the hands of third parties.

The doctrine is so dangerous as a means of hiding governmental  misbehavior under the guise of national security, and so violative of  common rights of due process, that courts should confine its application to the narrowest circumstances that still protect the government’s  essential secrets.

It should be a rare case when the state secrets doctrine leads to dismissal at the outset of a case. This is one of those rare cases.

Hawkins hints a the potentially most significant limitation on the new ruling’s scope. Circuit Judge Carlos T. Bea said in his brief separate opinion that he joined the result, but added that he concurred in the dissenter’s treatment of the Reynolds evidentiary privilege. According to the dissenters this privilige can never be used to stop a case barring every legal claim, even before the other side has filed a reply and before one item of evideence has been put forth.

Judge Hawkins countered as well in his dissent that the majority’s suggested alternative remedies undercut the concept of checks and balances. “Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role,” he said, “but also deprive the plaintiffs of a fair assessment of their claims by a neutral arbiter.”

Comment from Justice Department spokesman Matthew Miller:

The attorney general adopted a new policy last year to ensure the state secrets privilege is only used in cases where it is essential to protect national security, and we are pleased that the court recognized that the policy was used appropriately in this case.

Lyle Deniston comments:

Together with the Fourth Circuit Court’s 2007 decision in the case of Khaled el-Masri (which the Supreme Court refused to hear that year, in case 06-1613), the Ninth Circuit’s ruling in Mohamed, et al., v. Jeppesen Datraplan, Inc.  (Circuit docket 08-15694) goes far toward insulating the “rendition” program from judicial review — unless the Supreme Court took on that case and reversed the result.

In the same vein we have Ben Wizner says:

“To date, not a single victim of the Bush administration’s torture program has had his day in court (…) If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers.”

Former Polish leader denies knowledge of CIA site

A former Polish president who was in office when the CIA is suspected of running a secret prison in his country says he has no knowledge of the facility or of harsh interrogation techniques allegedly used against terror suspects there. Aleksander Kwasniewski’s comments came after The Associated Press reported that the USS Cole bombing plotter Abd al-Rahim al-Nashiri was subjected to harsh treatment in a secret prison in Poland in late 2002 and early 2003.

“I am not able to say whether such things took place or could have taken place — it all still needs to be checked,” he said.

“U.S. planes landed in Poland and many activities took place in connection to that, but it was fully under U.S. responsibility,” he said. “Our support for the intelligence activity stemmed from the conviction that it serves the security of the U.S., of Poland and of the world. I absolutely do not accept this notion that democracy must disarm in the face of terrorists and the terrorists can do what they want with us.”

UK government to review controversial extradition laws

UK Home Secretary Theresa May told Parliament Wednesday that the government will review the fairness of current extradition laws that have stirred controversy in the country. Among the extradition laws to be reviewed are the European Arrest Warrant and the 2003 US-UK Extradition Treaty, as well as government’s power to release individuals into foreign custody and the proper amount of evidence that must be provided against persons sought through extradition. May explained the purpose of the review process:

There are a number of areas of the UK’s extradition arrangements which have attracted significant controversy in recent years. The government understands that these are longstanding concerns and the review will therefore focus on five issues to ensure that the UK’s extradition arrangements work both efficiently and in the interests of justice.

Critics of the US-UK Extradition Treaty argue that it is unfairly one-sided, allowing more extraditions from the UK to the US than vice versa. Human rights groups have called for reforms to the country’s extradition laws and some groups have criticized May for not pressing the matter more forcefully. The review is scheduled for completion next summer.