US Treasury sued to allow Anwar al-Awlaki lawsuit

The American Civil Liberties Union and the Center on Constitutional rights continue their lawsuit against Treasury Secretary Timothy Geithner  and the Treasury Department Office of Foreign Asset Control over their having blocked the ACLU’s attempt to challenge the government’s authority to engage in the targeted killing of American citizens suspected of terrorism. The lawsuit is being brought on behalf of Nasser al-Awlaki, the father of Anwar al-Awlaki, the extremist cleric who has been linked to al-Qaeda in the Arabian Peninsula and several terror plots targeting the United States. Nasser al-Awlaki maintains that his son is innocent.

The center and the ACLU said Aulaqi’s father contacted them shortly before Treasury named Aulaqi a “specially designated global terrorist” on July 16, freezing his assets and barring U.S. entities – including lawyers – from doing business with or providing services to him without obtaining a license from OFAC.

OFAC Director Adam Szubin said that his office would be willing to issue a license to the rights groups, noting that it is the policy of the OFAC to facilitate the provision of pro bono legal services to those sanctioned by the body.

In announcing the continuance of the lawsuit despite the license, the rights groups expressed appreciation for OFAC’s prompt response, but explained:

OFAC’s regulations are unconstitutional because they require lawyers who are providing uncompensated legal representation to seek the government’s permission before challenging the constitutionality of the government’s conduct. Notably, OFAC has indicated that the license issued to us today can be revoked at any time. We will pursue our claim that OFAC’s attorney-licensing regulations are unconstitutional and should be invalidated.

The ACLU points out that there’s something strange about the OFAC delaying granting a license to defend someone whom the government claims is such an imminent threat they should be killed at first opportunity.

“We don’t think the we should have to ask the government’s permission before suing it for violations of constitutional rights,” said Vince Warren, executive director of the CCR.

The larger issue is less one of Anwar al-Awlaki’s guilt and innocence but rather the scope of the government’s authority to target U.S. citizens for killing without due process. The ACLU and the CCR want to challenge that authority, but they can’t even do that without the OFAC’s permission.

“The same government that is seeking to kill Anwar al-Awlaki has prohibited attorneys from contesting the legality of the government’s decision to use lethal force against him,” says the complaint.

Should the lawyers overcome that hurdle, they would be in a position to seek court resolution of some of the most central legal disputes in the war against Al Qaeda — including whether the whole world is a battlefield subject to combat rules, or whether Qaeda suspects far from the armed conflicts in Afghanistan and Iraq must, in the absence of an imminent threat, be treated as criminals entitled to trials.

The lawsuit can have potential far-reaching consequences, especially as targeted killings is the new U.S focus in Afghanistan the NY Times reports.

American intelligence reporting has recently revealed growing examples of Taliban fighters who are fearful of moving into higher-level command positions because of these lethal operations, according to a senior American military officer who follows Afghanistan closely.

The administration’s shift in thinking is gradual but has been perceptible in the public remarks of various officials. The incoming commander of the military’s Central Command, Gen. James N. Mattis, was asked last week by Senator Jack Reed, Democrat of Rhode Island, whether the administration’s July 2011 date for starting to withdraw American troops implied a shift in emphasis from counterinsurgency to a strategy concentrating on killing terrorists.

“I think that is the approach, Senator,” he replied.

The emerging American model can best be described as “counterterrorism, with some counterinsurgency strategy that forces the hands of insurgent leaders,” said a diplomat with knowledge of the planning. It melds elements of both strategies in a policy that continues to evolve, as conditions change.

More info here and here.

UN experts call for stronger regulation of private security companies

The United Nations group of independent experts on the use of mercenaries says it will present a proposal for a possible international convention to regulate activities of private military and security firms during its five-day meeting at the UN Headquarters in New York this week.

The UN Working Group on the Use of Mercenaries will brief permanent missions at the UN, non-governmental organizations (NGOs) and academics on the content and scope of its proposal aimed at closing the legal gap covering such activities at the international level. The independent experts are calling for more stringent regulations, oversight and monitoring of mercenaries and PMSC at both national and international levels.

The Working Group has, since its creation in 2005, been monitoring the impact on human rights of the activities of mercenaries and private military and security companies (PMSC), and in particular their lack of accountability.

Earlier this month, CRS released a report entitled “Department of Defense Contractors in Iraq and Afghanistan: Background and Analysis”. Here’s the summary:

The Department of Defense (DOD) increasingly relies upon contractors to support operations in Iraq and Afghanistan, which has resulted in a DOD workforce that has 19% more contractor personnel (207,600) than uniformed personnel (175,000). Contractors make up 54% of DOD’s workforce in Iraq and Afghanistan. The critical role contractors play in supporting such military operations and the billions of dollars spent by DOD on these services requires operational forces to effectively manage contractors during contingency operations.

Lack of sufficient contract management can delay or even prevent troops from receiving needed support and can also result in wasteful spending. Some analysts believe that poor contract management has also played a role in abuses and crimes committed by certain contractors against local nationals, which may have undermined U.S. counterinsurgency efforts in Iraq and Afghanistan. DOD officials have stated that the military’s experience in Iraq and Afghanistan, coupled with congressional attention and legislation, has focused DOD’s attention on the importance of contractors to operational success.

DOD has taken steps to improve how it manages and oversees contractors in Iraq and Afghanistan. These steps include tracking contracting data, implementing contracting training for uniformed personnel, increasing the size of the acquisition workforce in Iraq and Afghanistan, and updating DOD doctrine to incorporate the role of contractors. However, these efforts are still in progress and could take three years or more to effectively implement.

The use of contractors in Iraq and Afghanistan has raised a number of issues for Congress, including (1) what role contractors should play in contingency operations, (2) whether DOD is gathering and analyzing the right data on the use of contractors, (3) what steps DOD is taking to improve contract management and oversight, and (4) the extent to which contractors are being effectively included into military doctrine and strategy.

This report examines current contractor trends in Iraq and Afghanistan, the steps DOD has taken to improve contractor oversight and management, and the extent to which DOD has incorporated the role of contractors into its doctrine and strategy. The report also reviews steps Congress has taken to exercise oversight over DOD contracting, including contracting issues that have been the focus of hearings and legislation.

Afghanistan war logs confirm existence of Task Force 373, special forces hunting top Taliban

The Nato coalition in Afghanistan  has been using an undisclosed “black” unit of special forces, Task Force 373, to hunt down targets for death or detention without trial, The Guardian reports. The unit of elite soldiers, which includes members of the Navy Seals and the Delta Force, get their orders directly from the Pentagon in Washington and operate outside of the chain of command of NATO’s International Security Assistance Force (ISAF), according to Der Spiegel. Details of more than 2,000 senior figures from the Taliban and al-Qaida are held on a “kill or capture” list, known as Jpel, the joint prioritised effects list. The Jpel list assigns an individual serial number to each of those targeted for kill or capture and by October 2009 this had reached 2,058.

In many cases, the unit has set out to seize a target for internment, but in others it has simply killed them without attempting to capture. The logs reveal that TF 373 has also killed civilian men, women and children and even Afghan police officers who have strayed into its path.;In the close to 92,000 logs leaked, 84 pertain to JPEL-related actions.

The disclosures come from more than 90,000 records of incidents and intelligence reports about the conflict obtained by the whistleblowers’ website Wikileaks in one of the biggest leaks in US military history. The logs detail the toll on civilians exacted by coalition forces: events termed “blue on white” in military jargon. The logs reveal 144 such incidents. At least 195 civilians are admitted to have been killed and 174 wounded in total.

Philip Sands:

We now have extensive international rules on the conduct of armed conflict, incorporated into the Security Council resolutions that govern the operations of the International Security Assistance Force in Afghanistan, as it is formally known. The latest of these – resolution 917 adopted in March 2010 – calls for “full respect for human rights and fundamental freedoms and international humanitarian law throughout Afghanistan”. The logs indicate that these rules do not seem to have brought much by way of added protection to the local population.

Under these international rules, targeted killings may be permitted in the armed conflict in Afghanistan, provided they are used against individuals who are directly involved in combat. The UN Special Rapporteur on Extrajudicial Executions, Professor Philip Alston, has raised concerns that targeted killings “are increasingly being used far from any battle zone”. These newly available logs underscore this expression of concern, not least since they refer to the use of unmanned drones, including Predators, on a significant scale, and the deaths of a great number of civilians. Alston has alerted us to the use of targeted killings “in a framework which may well violate international humanitarian law and international human rights law”.

That seems like understatement.

US court awards terror victims $378 million against North Korea

The Terror Finance Blog reports that a US federal court has handed down a historic decision finding the government of North Korea and its intelligence service, the Cabinet  General Intelligence Bureau, liable for an infamous terrorist attack perpetrated in Israel in 1972.  The U.S. District Court in San Juan, Puerto Rico has ordered the defendants to pay $378,000,000 in damages to two families.

The case arises from a lawsuit brought by victims of the 1972 terror attack at the Lod Airport in Israel in which 26 people were killed and 80 injured. The plaintiffs alleged that the government of  North Korea trained and financed the terrorists who carried out this heinous massacre.

(H/T Georgetown SLB)

Guantanamo update

Judicial decisions

Federal Court maintains stay on Khadr habeas petition
(JURIST) The US District Court for the District of Columbia on Tuesday allowed Canadian Guantanamo Bay detainee Omar Khadr to amend his 2004 habeas corpus petition, but refused to lift the stay on the petition pending the conclusion of his military commission.

The petition was stayed under a criteria set forth by the US Supreme Court’s 1975 decision in Schlesinger v. Councilman, staying action on the petition until the resolution of the military commission proceedings because the claims in Khadr’s habeas petition can be raised during the commission or in the appeals process.

Judge John Bates still allowed Khadr to amend his petition, finding that it was not “futile” as the government alleged, because the stay may be lifted after Khadr concludes his appeals from the commission. Khadr argued that the intent for district courts to hear his habeas petition despite the ongoing commission was demonstrated by the differences in the military commission acts of 2006 and 2009, in which § 950j(b) of the 2006 act, providing for district court review only after the conclusion of the military commission, was removed. Bates rejected this. Additionally, the court maintained the stay on the petition despite Khadr’s argument that the amended petition fell under one of the exceptions to Councilman, arguing that the military lacked personal jurisdiction over him because he was a juvenile at the time of his capture and that the military commission system established by Congress was unconstitutional. Bates rejected both arguments, finding that the jurisdictional argument did not fall with the Councilman exceptions, and cited the Supreme Court case of Hamdan v. Rumsfeld in upholding the constitutionality of the military commissions.

Federal Judge grants Yemeni Guantanamo detainee’s habeas petition
[JURIST] A judge for the US District Court for the District of Columbia on Wednesday granted the habeas corpus petition of Yemeni citizen Adnan Farhan Abdul Latif and ordered his immediate release from the Guantanamo Bay detention facility. Latif, who has been in custody for over eight years, contends that he was in Pakistan for medical treatment when he was arrested and turned over to US forces. According to a lawyer for Latif, he suffers from mental illness and depression, and he remains suicidal. The judge ordered the Obama administration to take all necessary steps to ensure that Latif is released. In a separate decision announced Wednesday, a federal judge denied the habeas petition of Guantanamo detainee Abdul-Rahman Sulayman, ruling that he can continue to be held in custody indefinitely. Sulayman has also been in custody for over eight years. The rulings in both cases remain under seal as they are examined for possible security issues. The US Department of Justice (DOJ) is considering whether to appeal the ruling in Latif’s case.

Transfers

Spain and Latvia accept two Guantanamo detainees
“The United States coordinated with the governments of Spain and Latvia to ensure the transfers took place under appropriate security measures and will remain in close consultation with both governments regarding these individuals,” the Pentagon said in a statement. The identities of the two detainees were “withheld for privacy reasons at the request of the receiving governments,” the Pentagon said.

In announcing the transfer, the Spanish Interior Ministry  said that the man, an Afghan national, arrived in Spain on Wednesday and will be given residency and work permits. The ministry also noted that the former-detainee has no pending charges of terrorism against him in any jurisdiction. Spanish Foreign Minister Miguel Angel Moratinos indicated that Spain was willing to increase the number of detainees accepted in order to help remedy what it sees as an unacceptable situation at the detention facility.

Opinions

Michael B. Mukaseki: “Guantanamo is no venue for a civilian jury trial”
The Washington Post has an opinion piece by former Attorney General and judge Michael Mukasey, arguing that there were fatal flaws in the recent suggestion that Congress should designate Guantanamo Bay part of an existing federal district court or as a separate federal district court so that those accused of the Sept. 11, 2001, attacks can be tried there.

Quote:

A civilian trial would not “uphold the rule of law,” nor would avoiding a military commission deny the defendants their self-styled status as “warriors.” The civilized world has tried over several hundred years to establish rules of warfare so that those who wear uniforms, follow a recognized chain of command, carry their arms openly and do not target civilians are treated as prisoners of war when captured. Those who follow none of these rules are treated as war criminals, not as ordinary defendants accused of ordinary crimes and entitled to far more robust protection than war criminals. Congress recognized this when it passed the 2006 Military Commissions Act to deal with Islamist terrorism; disregarding that statute is lawless. Moreover, giving those who violate the laws of war more protection than is accorded those who follow such rules turns those rules and their underlying morality on their head.

Pakistan urget to echo US terror sanctions

The US wants Pakistan to implement international sanctions against three key terrorist financiers who have raised money for the Taliban and its Pakistan-based affiliate, the Haqqani Network.

The Treasury Department on Thursday froze the US-held assets of Gul Agha Ishakzai, head of the Taliban’s financial commission; Amir Abdullah, former treasurer to Taliban leader Mullah Abdul Ghani Baradar; and Nasiruddin Haqqani, an emissary for the Haqqani Network.

The United Nations had earlier this week implemented a travel ban, asset freeze and arms embargo against these individuals.

“Not only have these individuals been designated under domestic legal authorities, they were also listed at the United Nations 1267 Consolidated List for being associated with al-Qaeda,  Osama bin Laden, or the Taliban,” a State Department spokesman said on Friday. “Pakistan, as a UN member, must implement this international action,” the official added.

The State Department spokesman said this order blocks any property the designees have under U.S. jurisdiction and prohibits U.S. persons from engaging in transactions with them.

(H/T Georgetown SLB)

Nowak and Scheinin urge US to ensure no forcible return of Guantanamo detainees

The UN Special Rapporteurs on Torture, Manfred Nowak, and on the Protection of Human Rights while Countering Terrorism, Martin Scheinin, have called on the US Government to ensure that it does not forcibly return anyone to another State where the person could be subject to torture.

While welcoming US efforts to close Guantanamo Bay detention facility, the two experts  expressed their concern for two recent decisions by the US Supreme Court, which paved the way for the transfer of two Algerian detainees held in Guantánamo.

“We are extremely worried that the lives of two Algerian detainees could be put in danger without a proper assessment of the risks they could face if returned against their will to their country of origin,” the experts stated in a news release.

One of the two men in question, Abdul Aziz Naji, has already been repatriated to Algeria, according to media reports. He was among a group of six Algerian nationals held in Guantánamo, who feared that, if returned to Algeria, they could be subject to torture or other forms of ill-treatment by the security services or non-State actors.

“Diplomatic assurances are unreliable or difficult to monitor and cannot substitute the sending country’s obligation to assess the real risk facing the individual,” said the experts, who added that this could become the first involuntary transfers of Guantánamo detainees of the Obama administration.

US Supreme Court to rule on “material witness” law

(Scotus Blog) The Obama Administration is challenging before the Supreme Court a ruling by the Ninth Circuit Court that government officials are not entitled to full legal immunity if they use the “material witness” law — a law that apparently has been used with some frequency in suspected terrorism cases — as a pretext for investigating or detaining an individual, even if a neutral judge has issued a warrant to seize that individual. 

In the petition, the Solicitor General’s office argued that the Circuit Court ruling not only exposes officials to personal liability for money damages for acts of their subordinates, but will have “long-term consequences” in limiting “the usefulnessof the material witness statute.”

Although the Ninth Circuit did not explicitly strike down the law as used in this case, the Solicitor General’s petition said, it will have that effect when prosecutors ponder the arrest of a witness who they think has vital criminal evidence, but they lack sufficient basis for believing that that individual has himself committed a crime that prosecutors can charge. 

Noting that the material witness law dates back to 1789, the petition noted that all 50 states also have similar laws.  “Until now, the constitutionality of this statute apparent has never been doubted…The Ninth Circuit’s implicit invalidation of such a longstanding and important act of Congress” supports Supreme Court review, it added.

The petition reached the Court just a month after the Justices, in a 6-3 ruling on June 21 (Holder v. Humanitarian Law Project, 08-1498), decided that the federal government may use a law against “material support” of terrorist organizations to stop even humanitarian groups from helping terrorist groups pursue peaceful goals or policites.  

It is not known just how often the government has used the “material witness” law to round up individuals during terrorism probes, but the number very likely is significant.

Read more on the case here.

UN adds radical cleric al-Awlaki to terror list

The Miami Herald reports that the United Nations has added U.S.-born radical cleric Anwar al-Awlaki to its terrorist list, requiring member countries to freeze his assets and ban his travel.

The action follows a similar move by the U.S. Treasury Department last week, and underscores the growing threat officials believe al-Awlaki represents as a terror recruiter and planner.

Based in Yemen, al-Awlaki has taken on a greater role with al-Qaida in the Arabian Peninsula, leading to his placement earlier this year on a secret U.S. government list of terror targets to be captured or killed, according to U.S. officials.

In announcing the U.N. sanctions, the State Department said the crackdown will help degrade AQAP’s ability to launch attacks.

The move, said Daniel Benjamin, State Department coordinator for counterterrorism, “is in direct response to the operational role he plays in AQAP, and most importantly because of the integral part he played in planning AQAP’s attempted destruction of Northwest Airlines flight 253 over the United States.”

Meantime, a senior US lawmaker urged the United States to add Eritrea to a terrorism blacklist over its support for an Al-Qaeda-linked group tied to last week’s deadly bombings in Uganda.

Representative Ed Royce, the top Republican on a House subcommittee on terrorism, nonproliferation and trade, urged US Secretary of State Hillary Clinton in a letter to designate Eritrea a state sponsor of terrorism.

The designation — currently only applied to Cuba, Iran, Sudan and Syria — carries a range of economic and diplomatic sanctions.

The California lawmaker said “Eritrea’s support for Shebab is well documented” and that the Uganda attacks underscored “the group’s threat to the region, continent and even the United States.”

(h/t Georgetown SLB)

War on terrorism’s price tag: $ 1 trillion

According to a Congressional Research Service report, the military operations since the Sept. 11, 2001 terrorist attacks have cost over $1 trillion, making the “war on terrorism” second only to World War II in cost to US taxpayers.

“CRS provided its estimates in current year dollars (i.e. the year they were spent) and in constant year dollars (adjusted for inflation), and as a percentage of gross domestic product,” noted Secrecy News editor Steven Aftergood, who obtained the report. “Many caveats apply to these figures, which are spelled out in the CRS report.”

Indeed, the author of the report, Stephen Daggett, wrote that “Comparisons of war costs over a 230-year period are … inherently problematic.”