Advising terrorism – hybrid scrutiny, safe harbors, and freedom of speech

SSRN
has published new scholarship from Peter Margulies analyzing the
Supreme Court decision in Humanitarian Law Project v. Holder (HLP)
upholding a statute that bars “material support” of terrorist
organizations. Some commentators have labeled HLP as heralding a new
McCarthyism. Margulies argues that such critics overlook the tailored
quality of the decision’s hybrid scrutiny model, its roots in the
Framers’ concerns about foreign influence, and its surprising parallels
with constitutional justifications for professional regulation. H/T Georgetown SLB.

Criminalizing Humanitarian Engagement

This Working Paper presents HPCR’s research to date on dilemmas arising from the intersection between, on the one hand, counterterrorism laws and policies prohibiting engagement with certain non‐state entities and, on the other, humanitarian access and protection of civilians in armed conflict. This Working Paper aims to provide HPCR’s initial analysis of these dilemmas and to suggest key areas for future research and policy engagement.  

Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law

Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law – Daphne Barak-Erez and David Scharia

In the recent case of Holder v. Humanitarian Law Project, the Supreme Court of the United States ruled that a criminal prohibition on advocacy carried out in coordination with, or at the direction of, a foreign terrorist organization is constitutionally permissible: it is not tantamount to an unconstitutional infringement of freedom of speech. This Article aims to understand both the decision itself and its implications in the context of the global effort to define the limits of speech that aims to support or promote terrorism. More specifically, the Article compares the European approach, which focuses on whether the content of the speech tends to support terrorism, with the U.S. approach, which focuses on criminalizing speakers who have links to terrorist organizations. Both approaches are evaluated against the background of the adoption of Resolution 1624 by the United Nations Security Council in 2005, which called on states to prohibit by law incitement to commit terrorist acts. The Article then follows the implementation of the resolution by comparing the traditional American resistance to direct prohibitions of incitement that fail to meet the standard set by the Brandenburg v. Ohio precedent and European legislation that is open to such limitations subject to balancing tests. It then evaluates the potential advantages and threats each option pose to freedom of speech by examining them from the perspective of the controversy of candor within legal decision-making. Based on this analysis, the Article also articulates the challenge of balancing international norms regarding the limits of freedom of speech with different and even conflicting domestic traditions regarding the scope of protection of freedom of speech.

UN report confirms gap between law and reality, torture, secret detentions and police harassment in Tunisia under Ben Ali

The United Nations just published a report on its website which describes the fact-finding mission of the United Nations Special Rapporteur on the protection of human rights while countering terrorism in January 2010. On the basis of the evidence he gathered, he observed a pattern of unacknowledged detention being used vis-à-vis terrorist suspects. During the period of secret detention, terrorism suspects are at high risk of being subjected to torture and ill-treatment. The secrecy that surrounds custody and interrogations by the unit of the “Police Judiciare”, which is in charge of interrogating terrorism suspects (commonly referred to under its previous name “Directorate for State Security”, DSS), renders investigations into abuses improbable and, consequently, leads to a lack of accountability and to impunity. The Special Rapporteur further concludes that the judiciary does not effectively act as a safeguard against these practices, and that the restrictions on access to lawyer during police custody aggravate his concerns. The report will be discussed by the United Nationas Human Rights Council around the 7th of March 2011.

The report is the last official UN report to describe practices under the Ben Ali regime, and it was the first time in more than 15 years that the UN’s special procedures mechanisms visited the country for a fact finding mission.

Mission: no access to Ministry of Interior interrogation facilities
The Special Rapporteur met with the former Minister of Foreign Affairs, the Minister for Justice and Human Rights, Ministry of Interior officials, judges, parliamentarians, lawyers, academics and non-governmental organizations, in addition, he visited the Bouchoucha police detention facility and the Mornaguia Prison, where he interviewed several persons suspected of, or convicted for, terrorist crimes. More significant the Special Rapporteur was denied access to the interrogation facilities of the Sub-directorate for Criminal Affairs of the “Police Judiciaire”, also known as “Directorate of State Security”, DSS, where the overwhelming majority of the allegations of torture or ill-treatment took place.

The abuse of the definition of terrorism

In his assesment of Tunisia’s revised anti-terrorism law, the Special Rapporteur says clearly that the definition of terrorism does not fulfil the legality requirement contained in article 15 of the International Covenant on Civil and Political Rights or article 13 of the Tunisian Constitution. The Rapporteur concludes:

The current wide definition clearly carries the risk of broad application of counterterrorism legislation, which in turn means that the term “terrorism” may become diluted and lose its distinguishing stigma. This may have possibly far-reaching consequences for the rights to freedoms of expression, association and assembly.

According to the SR, the combination of the wide definition of terrorism, combined with the criminalization of preparatory acts of terrorism “allow for targeting as “terrorists” people who simply hold radical and unpalatable views without posing a real danger in terms of planning any violent acts.”

In the view of the Special Rapporteur, it appears that the scope of application of the terrorism provisions in the law has grown too wide and should be reduced. Any anti-terrorism law that is not properly confined to the countering of terrorism within the limits of human rights law is problematic, not only because an overly expansive scope of such a law weakens its own legitimacy and ultimately may prove to be counter-productive, but particularly because it may unjustifiably restrict the enjoyment of human rights pertaining to the exercise of peaceful activities, including dissent and political opposition through legitimate associations. The Special
Rapporteur identified the danger of a ”slippery slope” which not only results in persons being convicted of “terrorism” who do not deserve that stigma, but also endangers the effectiveness of the fight against terrorism by trivializing the phenomenon.

First clear indication of number of persons detained under Tunisia’s anti-terrorism law, and Tunisia’s structure of the internal security forces under the Ministry of Interior

The Special Rapporteur indicates that perhaps one person per day was arrested and/or detained on the basis of the anti-terrorism law. The official statistics that the Special Rapporteur received showed that overall 214 cases have been brought before a court in the seven years since its adoption, in which 1,123 individuals were involved. (So this number does not include people who were never tried.)

Furthermore, the Special Rapporteur received information about a number of cases, where the main “crime” seems to have been to have visited certain countries or even mosques, downloaded or watched certain programmes online, having held prayers together, or having met with others to discuss religious issues.

Regarding the structure of the security forces of the Ministry of the Interior, the Special Rapporteur was expressed concerns about the myriad of agencies that were responsible for countering terrorism.

Elements rendering the practical operation of counter-terrorism policing opaque are the use of several common names for what appears to be the same entity, namely the Subdirectorate of Criminal Affairs, formerly known as “DSS”, standing for the “Directorate of State Security” and the lack of publicly available information on its status and organization.

Back-dating of arrest dates resulting in a pattern of secret detention

Numerous testimonies collected by the SR indicated – and it was admitted by the authorities – that dates of arrest are routinely post-dated, thereby circumventing the rules about the allowed length of police detention and taking detainees out of the protection framework.

When the Special Rapporteur visited Bouchoucha, the police station in Tunis through which terrorism suspects pass before being transferred to pretrial detention, he discovered that all of the 25 detainees whose names were contained in the custody record in relation to terrorist crimes had been brought there by members of the “Police Judiciaire” in the late afternoon or evening and taken out once during the following night for an unspecified period (the officials present during the visit explained that such temporary transfers were indicated in pencil only and erased once the person returned) before finally being transferred before a judge in the morning of the next day. The recorded practice of very short official police custody in terrorism cases is in stark contradiction with reports by detainees and families about interrogations ranging from several days to a number of weeksbefore being brought before a judge. The police officers in Bouchoucha also denied
knowing where the “Police Judiciaire” holds the suspects before bringing them to Bouchoucha for registration into official detention. This pattern appears to be compatible with the many allegations received by the Special Rapporteur that people under investigation are typically in terrorism cases first held in unacknowledged police custody.

In a damning paragraph, the Special Rapporteur highlights that evidence brought to the attention of the Special Rapporteur indicated that suspected terrorists are routinely held in secret in a building of the Ministry of Interior in Tunis.

Detainees allegedly sleep either on the ground floor in rudimentary conditions in a number of cells grouped around a larger room, or in smaller cells in the basement. Interrogations also take place on upper floors. No person from the outside has access to these premises, so detainees are at the mercy of their custodians, which, in itself, puts pressure on them and may constitute inhuman treatment. The authorities, however, continue to deny that the Ministry of Interior detains persons within or close to its official premises. Despite repeated requests, they did not allow the Special Rapporteur access to the interrogation facilities of the Ministry.

The Rapporteur concludes:

On the basis of the evidence gathered, he observed a pattern of unacknowledged detention, operating in the city of Tunis under the interrogation authority of the Ministry of Interior, being used to detain terrorist suspects. During this period that precedes detainees’ official registration in police custody, they are also routinely subjected to torture and ill-treatment and denied access to a lawyer.

Torture and the use of confessions obtained under torture

Numerous cases of terrorism suspects brought to the Special Rapporteur’s attention indicate that ill-treatment and/or torture is perpetrated during initial, unacknowledged police custody or interrogations by what is commonly referred to as “DSS”, in particular if the suspects refuse to confess.

The details of these accounts suggest that these practices occur under the direct control of the Ministry of Interior and possibly even within or next to the premises of the Ministry. According to consistent allegations, suspects are regularly subjected to severe beatings on different parts of the body, including genitals, with fists, cables and batons, kicking, slapping, often combined with stripping of their clothes and suspensions (including in the so-called poulet rôti (“roast chicken”) position), even in ordinary offices of the Ministry. Some reports also described electroshocks and mock-drowning taking place in one particular room in the basement, especially in cases, where suspects resisted to making confessions. Other methods used included extended periods of sleep deprivation, burning with cigarettes, threats with rape, threats to family members and anal rape. The treatment was allegedly perpetrated by plainclothes officers of DSS.

The main purpose of the torture was to extract confessions, and sometimes testimonies about third persons. It normally stopped with the signing of papers that most suspects had not been allowed to read. However, the Special Rapporteur received allegations about instances of reprisals occurring in official places of detention in terms of beatings, threats and solitary confinement, for instance, for prisoners that had made calls for prayer or submitted complaints. In several cases, detainees were transferred from prisons back to the premises of the Ministry of Interior for interrogation and ill-treatment.

The testimonies also indicated that existing safeguards are ineffective in practice. Apart from the fact that the ill-treatment normally happens prior to the registration of police arrest, access to independent medical examinations, although provided for by law upon authorization by a judge, is practically never granted, and can therefore not be considered an effective safeguard. If at all, medical examinations take place months after the illtreatment was perpetrated, and therefore fail to produce evidence that can be used in court. The resulting “lack of proof” is then used by prosecutors and judges to ignore claims about torture and ill-treatment and, on that basis to reject requests for investigations.

No real accountability for torture

While noting the importance of at least some trials and convictions, the Special Rapporteur considers that the number of prosecutions or other clear findings related to torture remains disturbingly low when compared to the frequency and severity of the allegations he received. He is concerned that there are remnants of a climate of impunity within law-enforcement structures. This is all the more troubling in light of allegations that confessions are frequently used as evidence in court. He is therefore concerned that the lack of effective investigations into allegations of torture may have led and continue to lead to unfair trials and illegitimate court judgements, on the basis of which persons may be deprived of their liberty – one of the most severe interferences with fundamental freedoms – for years, sometimes decades. He therefore calls upon the authorities to reopen.

Overall, the Special Rapporteur is concerned that the judiciary appears to fail to act as an effective remedy when it comes to allegations of torture or ill-treatment. Numerous persons indicated that raising such allegations during trial practically never leads to any action by the judges. Unfortunately, the Special Rapporteur’s meetings with judges of the Appeals Court in Tunis did not take away his concern of that protocols that mention torture allegations and other written submissions on the issue are routinely ignored by the court.

This raises serious concerns in terms of the independence of the judiciary, guaranteed by article 65 of the Constitution and the Law No. 29 of 1967, exacerbated by indications thatthe Executive Branch, through the Supreme Council of the Judiciary (which is composed of the President, who is the Chairman, and the Minister of Justice as Vice-chairman, plus a majority of members either representing or appointed by the Executive Branch) controls many aspects of the judiciary, including appointments, promotions, transfers and disciplinary measures.

Clarification of rendition case of Laid Saidi

Concerning Tunisia’s participation in illegal forms of cooperation in counterterrorism, the Special Rapporteur has received allegations that Tunisian authorities were involved in holding a detainee sent to Tunisia by the United States’ Central Intelligence Agency, who was then transferred to other countries. Laid Saidi was reportedly seized in the United Republic of Tanzania, transferred to Malawi, then rendered to Afghanistan and further to Tunisia, where he was held for 75 days before being returned to his home country Algeria (see A/HRC/13/42, para. 133). According to the Government however Laid Saidi had arrived with a “special flight” on the 9 June 2004, where he was presented by four foreign security officials to Tunisian authorities at the airport of Tunis Carthage under the name of Ramzi Ben Fredj. The Tunisian security services conducted an audit and concluded that the person had usurped the identity of the real Ramzi Ben Fredj.

The person then acknowledged that he was actually Laid Saidi. The next day, on the 10 June 2004, Said was sent back with the same special flight to a “foreign country”; he was then still accompanied by the same foreign agents. Similarly, it has been alleged that Tunisian intelligence officials participated in interrogations of terrorist suspects in Afghanistan (see interview with Bisher Al-Rawi, A/HRC/13/42, annex II, case 4). The
Special Rapporteur regrets that, according to his information, the Government of Tunisia has not started any investigation into these allegations.

Harassment of defence lawyers

The Special Rapporteur received a number of allegations regarding obstruction of the work of defence lawyers, e.g. concerning restrictions on access to their clients and their clients’ files, but also about harassment in more general terms, in particular vis-à-vis those who defend terrorism suspects. This can take the form of interference with their correspondence, non-issuance of passports for international travel, but also go further to not allowing them to enter certain places, pressuring family members, etc.

FBI director defends sting operations

(AP) FBI Director Robert Mueller on Wednesday defended his agency’s use of sting operations in snaring terrorism suspects, a technique some have complained amounts to entrapment.

The FBI has come under criticism over its repeated use of stings in which agents and informants walk a suspect through a carefully choreographed plot to carry out what they believe to be a real bomb attack, though the explosives are never real.

Nineteen-year-old Mohamed Osman Mohamud was arrested the day after Thanksgiving in Portland, Ore., after he allegedly tried to detonate a bomb. The bomb was not real and the whole plot had been created by the FBI.

“We have been tremendously successful in thwarting attacks,” Mueller said at a news conference. “We are very careful in these investigations. … They are absolutely essential if we are to protect the community against terrorist attacks.”

Mueller said undercover operations are necessary to many FBI probes, not just those related to counterterrorism, and he noted that defendants have claimed in a string of cases since Sept. 11, 2001, that they were the victims of entrapment.

“There has not been yet to my knowledge a defendant who has been acquitted in asserting the entrapment defense,” Mueller said, crediting “substantial oversight” such probes have.

Additionally, civil rights and Muslim groups in Orange County have faulted the FBI over its infiltration of mosques with at least one informant who was paid to gather intelligence. The informant, Craig Monteilh, claimed that his handlers told him to ask mosque members about “jihad” and their support for terrorist operations abroad.

Extracting passwords from electronic devices is key
Mueller was speaking at the official opening of a new crime laboratory that specializes in extracting data and files from cell phones, flash drives and computers seized in criminal probes.

The so-called Regional Computer Forensic Laboratory will employ a team of 23 forensic examiners who are trained to circumvent passwords and other security measures a user may put on an electronic device.

“There is not a case now where you don’t have a hard drive, a thumb drive, a cell phone or some other mechanism for either communicating or storing data,” Mueller said.

Seven FBI agents will team up with 16 officials from local law enforcement agencies in Orange County to run the center, which was approved in 2008 and cost $7 million to set up. Using the latest software and computer systems, they will be able to quickly pull data, text messages and other information from cell phones.

Smart phones users often leave a plethora of personal data for investigators to pore over, including photographs with a GPS tag giving coordinates of where the picture was taken.

The lab is the 15th of its kind across the country. Mueller said that at a different lab, agents gathered information during an investigation into Najibullah Zazi, the son of an Afghan immigrant who admitted driving from Denver to New York with the intention of attacking the subway system.

Because of the data that was seized, agents were able to track him and prevent the attack, Mueller said.

David cole urges to reform material support laws

According to David Cole in the NYT:
“Congress should reform the laws governing material support of terrorism. It should make clear that speech advocating only lawful, nonviolent activities — as Michael Mukasey and Rudolph Giuliani did in Paris — is not a crime. The First Amendment protects even speech advocating criminal activity, unless it is intended and likely to incite imminent lawless conduct. The risk that speech advocating peace and human rights would further terrorism is so remote that it cannot outweigh the indispensable value of protecting dissent.

At the same time, Congress also needs to reform the humanitarian aid exemption. It should state clearly that corporate interests in making profits from cigarettes are not sufficient to warrant exemptions from sanctions on state sponsors of terrorism. But Congress should also protect the provision of legitimate humanitarian aid — food, water, medical aid and shelter — in response to wars or natural disasters. Genuine humanitarian aid and free speech can and should be preserved without undermining our interests in security.”

European countries charge suspects with preparing for terrorist acts

NY Times: A week after coordinated raids in three cities, the British police said Monday that they had charged nine of the 12 men they arrested, in a case that seemed to be a sign that Europe’s concerns over potential terrorist attacks were spreading. Three of the 12 men were released without charges, the West Midlands Police said in a statement shortly before the other nine appeared in court in London, accused of “engaging in conduct in preparation for acts of terrorism.”

The nine men, including five who British news reports said were of Bangladeshi origin, were accused of offenses that included reconnoitering targets, conspiring to cause explosions and testing incendiary material. On Monday, Judge Howard Riddle ordered the men held in prison until a further hearing on Jan. 14. News reports at the time of the arrests said that the alleged conspiracy in the case was not likely to produce an imminent act of terrorism. But British broadcasters, including the BBC and Channel 4, reported late Monday that the men were accused of plotting attacks to coincide with the Christmas holidays and had reconnoitered targets like the American Embassy, the London Stock Exchange and religious and political leaders.

They were also reported to have planned to use designs from a newsletter by Al Qaeda to make parcel bombs. There was no immediate official confirmation of the reports.

On Dec. 14, the police in Germany moved against two Salafist networks suspected of seeking the imposition of an Islamic state. Those arrests were seen as a reflection of growing concern in Berlin about the radical messages of some Islamic groups.

On Saturday, prosecutors in the Netherlands said they had arrested 12 Somalis suspected of plotting a terrorist attack, but by Monday six had been released.

European concerns about terrorism seemed to mount after a suicide attack this month in Sweden, by a Swede of Iraqi descent who had been living in Britain; terrorism arrests in Spain and France; and other alarms in Germany over fears of a terrorism attack modeled on the 2008 attacks in Mumbai, India. The alerts have been given added weight by a warning in October from the State Department in Washington about reports of a planned attack in a European city.