First Gitmo Habeas Case Makes Way To SCOTUS

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In March of this year, Marcy reported about a Center for Constitutional Rights (CCR) petition to the Supreme Court on behalf of Guantanamo Lawyer Thomas Wilner and cited the CCR press release:

Last night, the Center for Constitutional Rights (CCR) asked the Supreme Court to take up its warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argue that the Executive Branch must disclose whether or not it has records related to the wiretapping of privileged attorney-client conversations without a warrant. Lawyers for the Guantánamo detainees fit the officially acknowledged profile of those subject to surveillance under the former administration’s program, and the Executive Branch has argued in the past that it has a right to target them.

Yesterday, the petition for cert on behalf of Tom Wilner was denied on the Court’s traditional First Monday announcements.

But the story will not end there for Tom Wilner in this nascent Supreme Court term, in a move that will prove ultimately much more significant than the somewhat weak FOIA case CCR was pursuing, Wilner has petitioned for cert on the Habeas case of his client Fawzi al-Odah. This will be a critical test to see how the Supremes are going to deal with the progeny of their decision in Boumediene v. Bush.

From Andy Worthington:

Last week, two years and three months after the US Supreme Court granted the prisoners held at Guantánamo constitutionally guaranteed habeas corpus rights in Boumediene v. Bush, Fawzi al-Odah, a Kuwaiti prisoner held for nearly nine years, became the first prisoner to appeal to the Supreme Court “to protest federal court interpretations of detainees’ right to contest their detention,” as AFP described it.

Over the last two years, the prisoners have won 38 out of the 55 cases in which the District Court judges in Washington D.C. have made a ruling, but al-Odah is one of the 17 whose appeals have been denied. As I reported when he lost his petition in August 2009:

….

Although the burden of proof is on the government in the habeas cases, the “preponderance of evidence” standard is considerably lower than in criminal cases, for example, where a case must be established beyond reasonable doubt. However, the Circuit Court dismissed al-Odah’s complaint “under binding precedent in this circuit,” and also dismissed his complaint about the use of hearsay evidence, pointing out that the use of hearsay evidence had been approved by the Supreme Court in Hamdi v. Rumsfeld, the 2004 case that approved the detention of prisoners under the Authorization for Use of Military Force, the legislation passed by Congress the week after the 9/11 attacks, which authorized (and still authorizes) the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (or those who harbored them).

….

In his petition to the Supreme Court, al-Odah argues that the courts have “applied a burden of proof lower than any ever approved by this Court in a case involving prolonged imprisonment, allowing the government to justify indefinite detention by a mere preponderance of the evidence, rather than by clear and convincing evidence.” He also argues that “both the District Court and the Court of Appeals have … allowed the indiscriminate admission of hearsay, denying the detainees any meaningful opportunity to test the reliability of statements made against them.”

Here is the official Petition for Certiorari in al-Odah. al-Odah will be an important bellwether to see if the Court accepts cert and, if so, what they do with the case.

Terror Trials In New York!!!

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I am going to make this shorter than I originally planned on when I started it earlier today, because I have some Trash to take out. But, as Bob Schacht pointed out, not that anybody would know it, but there has been a terror trial going on all week in a real live Article III courtroom in the heart of Manhattan. Exactly like all the Republicans with vapors and trembling Democrats said could not be safely done.

Jury selection started Wednesday September 29th and today the trial in chief, expected to start Monday, was tentatively postponed until next Wednesday pending determination of admissibility of evidence and testimony from an important prosecution witness, Hussein Abebe. From Bloomberg:

The federal judge presiding over the trial of Ahmed Khalfan Ghailani, a Tanzanian charged with taking part in the bombing of two American embassies in Africa, delayed the case by two days until Oct. 6.

U.S. District Judge Lewis Kaplan in New York today granted a prosecution request to postpone the trial, for which jury selection started Sept. 29. Kaplan said he may grant a delay if he rules a key prosecution witness, Hussein Abebe, can’t testify. The adjournment would give the government time to appeal that ruling before the trial.

……

Prosecutors want to call Abebe, 46, a Tanzanian who is former miner, to testify that he sold five crates of dynamite to Ghailani before the blast. He would provide a first-hand account of Ghailani’s role in the attacks, the government says.

Abebe, who hasn’t been charged, is a “giant” witness, according to prosecutors. The judge said earlier he may not decide until after opening arguments whether the jury should hear Abebe’s testimony.

…..

Ghailani’s lawyers argue that Abebe’s testimony should be excluded because the government learned of his involvement through a coercive interrogation of Ghailani by the CIA. Abebe also was coerced into cooperating with authorities, according to the defense attorneys, led by Peter Quijano and Steve Zissou.

Motions in limine and other evidentiary motions are always at issue in big criminal trials and brief delays and provision for interlocutory appeals are certainly common. So, what you see here is another criminal trial. Ho hum and yawn. Certainly not the unholy hell Baby Dick Cheney, Rudy 9/11 and the other cowering fearmongers predicted is it? The attached video from Human Rights First sums it up perfectly. Here is Human Rights First’s press release on the issue:

Despite repeated warnings that trying Guantanamo detainees in New York would result in chaos, mayhem, kidnappings, astronomical security costs, a police take-over of Lower Manhattan, snarled traffic, street closures, and “utter, unmitigated disaster,” New Yorkers interviewed by Human Rights First are going about their daily business within blocks of the federal terrorism trial of a former Guantanamo detainee.

In an exclusive video released today, the group reveals that many New Yorkers are not only failing to fear, they do not even realize that accused terrorist Ahmed Khalfan Ghailani’s trial is underway. Some, despite the urgent warnings from those trying to “Keep America Safe,” even expressed pride that the prosecution was happening in New York City.

“We have trials like that here all of the time,” one woman observed as Human Rights First correspondent Reagan Kuhn interviewed her near the federal courthouse in Foley Square.

Despite the best efforts of Liz Cheney, Deborah Burlingame, Rudy Guiliani, and Karl Rove to spread panic, many naïve New Yorkers seemed completely uninformed about the chaos that was supposed to reign. Some even observed that “everything seems pretty normal,” “I haven’t noticed anything,” and “I’m sure everybody knows what they are doing.”

As the Ghailani trial proceeds this week and in the weeks ahead, Human Rights First will continue to monitor New Yorkers’ failure to fear federal prosecution of this case. It will also continue to send representatives to Guantanamo Bay, Cuba, where military commission proceedings are set to commence next month. For those keeping score, U.S. federal courts have convicted more than 400 terrorists. Military commissions have secured only four convictions.

They have been holding terrorism trials of the highest order for years in New York City. SDNY is where the Blind Sheik Omar Abdel-Rahman was tried for the first World Trade Center Attack. There is not a better secured and more appropriate place in america to try the 9/11 terrorism suspects. That is what we do in America, and what we do as Americans. Giving in to the fear and bed wetting of the Cheneys, Rudy Guiliani, Lindsey Graham, Lieberman and others of their ilk is giving up on our principles and giving in to the terrorists themselves. Besides, NYC is always a target of terrorists and would be even if Khalid Sheikh Mohammed and the other four 9/11 suspects were tried in Gitmo.

Put the trials where the crimes happened and deal with it.

This Raid on Peace Activists Brought to You By Elena Kagan

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This article not only describes the hundreds of people who protested FBI raids of peace activists last week, but it provides more detail on what the FBI was looking for.

Agents were seeking “evidence relating to activities concerning the material support of terrorism,” the FBI said. Chicago FBI spokesman Ross Rice declined on Monday to discuss what agents were looking for, citing an “ongoing criminal investigation.” There have been no arrests.

Search warrants and subpoenas indicate authorities are looking for connections between the activists and groups including the Revolutionary Armed Forces of Colombia (FARC), the Popular Front for the Liberation of Palestine (PFLP) and Hezbollah. The U.S. government considers those groups to be terrorist organizations.

[snip]

Sundin said Monday she met FARC rebels when she visited Colombia in 2000, but noted that the Colombian government was holding peace talks at the time with the rebels, who held public forums where she met them. She said she has had no contacts with FARC since.

Kelly and Sundin acknowledged they’re active in the Freedom Road Socialist Organization, a group named in several warrants that openly supports FARC and PFLP and shares their Marxist ideologies. Two groups use the name after a 1999 split. They said their Freedom Road is a small group, but that they weren’t sure how many supporters it has. Kelly edits its newspaper.

These descriptions suggest that the FBI is raiding a bunch of peace activists it tracked during the RNC Convention to establish attenuated ties between them and at least three groups on the Foreign Terrorist Organization list.

What’s particularly interesting is the description of the work these activists were doing in Palestine and Colombia.

“We meet with human rights activists in other countries to get understanding of situations they face,” said Yorek.

Sundin said committee members use the trips to gather information that the group then uses in presentations to the public back in the United States.

“All trips always been very public,” Sundin said.

Aby said that in Palestine, committee members met with the Palestinian Women’s Commission and another group that advocates for Palestinian prisoners in Israeli jails. In Colombia, she said members met with representatives of Colombian unions.

“In Colombia, you’re considered to be a FARC supporter if you’re a member of a union,” Aby said. Critics of current Colombian President Juan Manuel Santos or former president Alvaro Uribe were also considered supporters of the FARC by Colombian authorities.

That is, after meeting with groups that the authorities in the country have an incentive to claim are terrorist groups, they come back to the US and publicize the conditions in the country.

Law Professor Peter Erlinder has said repeatedly precisely what I’ve been thinking about these raids since they happened: SCOTUS’ decision in Holder v. Humanitarian Law Project probably made such activities (which appear to have all happened before the decision in the case) illegal.

Congress has prohibited the provision of “material support or resources” to certain foreign organizations that engage in terrorist activity. 18 U. S. C. §2339B(a)(1). That prohibition is based on a finding that the specified organizations “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), §301(a)(7), 110 Stat. 1247, note following 18 U. S. C. §2339B (Findings and Purpose). The plaintiffs in this litigation seek to provide support to two such organizations. Plaintiffs claim that they seek to facilitate only the lawful, nonviolent purposes of those groups, and that applying the material-support law to prevent them from doing so violates the Constitution. In particular, they claim that the statute is too vague, in violation of the Fifth Amendment, and that it infringes their rights to freedom of speech and association, in violation of the First Amendment. We conclude that the material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute inthe future.

Obviously, the six justices (the conservatives plus Stevens) who made peace activism material support for terrorism deserve the bulk of the blame for this decision. But this was also the argument where then Solicitor General Elena Kagan advocated for the broadest interpretation of the statute.

JUSTICE KENNEDY: Do you stick with the argument made below that it’s unlawful to file an amicus brief?

GENERAL KAGAN: Justice Kennedy —

JUSTICE KENNEDY: I think I’m right in saying it that that was the argument below.

GENERAL KAGAN: Yes, I think that would be a service. In other words, not an amicus brief just to make sure that we understand each other. The Petitioners can file amicus briefs in a case that might involve the PKK or the LTTE for themselves, but to the extent that a lawyer drafts an amicus brief for the PKK or for the LTTE, that that’s the amicus party, then that indeed would be prohibited.

And lo and behold, just three months after this decision, the FBI is investigating a bunch of peace activists for their efforts to foster peace in areas contested by these terrorist organizations.

Now, I have no idea what Kagan thinks about this raid (though she used Hezbollah as her example in the argument, not the Tamil Tiger groups actually named in the suit, and Hezbollah is one of the organizations named in the warrants). But even during the argument, she sustained a fiction that the Court’s interpretation of material support to include peace efforts would be an unlikely use of prosecutorial discretion.

GENERAL KAGAN: First, because with respect to overbreadth, all of those uncertain or even unconstitutional applications will be but a thimbleful, compared to the ocean full of completely legitimate applications of this statute.

[snip]

GENERAL KAGAN: Of course, that’s a different thing as to how prosecutorial judgment is used to decide which are the high-priority cases and which are the low-priority cases.

Or maybe she just badly misinterpreted what FBI’s priorities really were.

Is this How the Yemeni-American Partnership Works?

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In my post on the government’s invocation of state secrets to hide the things national security officials have already leaked to the press, I linked to David Ignatius’ largely-overlooked report that Yemen first asked us to target Anwar al-Awlaki, and only thereafter did we get around to targeting him and telling courts they had no business asking why we had done so.

Last October, the Yemeni government came to the CIA with a request: Could the agency collect intelligence that might help target the network of a U.S.-born al-Qaeda recruiter named Anwar al-Aulaqi?

Keep that in mind as you read this story about a Yemeni woman trying to FOIA information about US involvement in her US citizen husband’s abduction in Yemen. (h/t Political Carnival)

As [Sharif Mobley] drank tea on a Sana’a street, eight masked men burst from two white vans and tried to grab him. Terrified, he ran, but was brought crashing to the ground by two bullets to his legs and bundled into one of the vans.

The method of abduction may have been brutal, but it was not the work of a rebel group or criminal gang. Instead, the armed men were Yemeni security agents, and in a set of legal documents seen by Al Jazeera, Mobley’s lawyers allege they were operating on behalf of the US government.

Now, the story only presents the Mobley’s family’s story, in which they claim that while Mobley had had contact with Anwar al-Awlaki, he never had any dealings or awareness of ties to al Qaeda.

“Sharif openly admits that he had been in limited contact with al-Awlaki,” says Cori Crider, Mobley’s  lawyer. “But he categorically denies that he was involved in or aware of any plot or link to al-Qaeda.”

Perhaps Mobley’s family is just spinning, downplaying more developed ties between Mobley and AQAP. Though note that any contact with al-Awlaki would have happened before Al Qaeda in the Arabian Peninsula was designated a terrorist organization, and even then, the government claims that terrorist designation should not limit others’ First Amendment rights to associate with members of designated terrorist groups.

Whether or not Mobley’s story is correct or not, it doesn’t dismiss the other allegation: that someone apparently tied to the US embassy raided the Mobley family home, all while pretending that Yemen–not the US–had sole custody of Mobley.

When she realised her husband was missing, [Mobley’s wife, Nzinga Saba Islam] immediately reported his disappearance to the embassy, where she was told to file a report with Yemeni police.

That night, at 1am, as she lay worrying about what had happened to her husband, the documents say around 15 men burst into the family home. The family were held at gunpoint and searched, while the house was raided and items confiscated.

Nzinga has told lawyers that the following morning she returned to the US embassy. As she waited to file a report about what had happened, she insists that she saw the man who had led the raid on her home wearing a US embassy pass.

“He was, as far as Nzinga could tell, in charge of the raid on her home,” Crider says. “She asked the embassy about him and what he was doing there, but embassy officials never gave her a straight answer.”

The documents allege that embassy officials listened to what Nzinga had to say, and began to question her about her husband’s activities in Yemen. Amongst the items she says they showed her were photographs taken during the raid on the house.

Mind you, none of this would be new. By all appearances, the US has used Pakistan as a proxy for arresting US citizens to avoid granting those citizens the legal rights they otherwise would have.

But the move is troubling, given the appearance that Yemen pushed this crack-down before the US did, and given the US government’s refusal to make public their larger case against al-Awlaki.

Anwar al-Awlaki is very quickly becoming our next surrogate bogeyman in the war on terror (the one designed to distract from the continued freedom of the people who actually targeted us on 9/11). And along with that, the government seems intent on hanging a whole lot more terrorist designations on people–including American citizens–without ever showing the evidence that al-Awlaki himself was operational.

Ongoing Investigation of Anti-War Activists

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I’m not done with my posts on the IG Report on FBI’s past investigations into anti-war activists.

But I did want to note that these investigations are ongoing. This morning, FBI in Minnesota raided the homes of some anti-war activists as part of a material support for terrorism investigation. (h/t fatster)

The homes of several leaders of the Twin Cities antiwar movement were raided Friday by the FBI in what an agency spokesman described as an “investigation into activities concerning the material support of terrorism.”

Search warrants were executed on six addresses in Minneapolis and at two in Chicago, said FBI spokesman Steve Warfield.

Among the homes raided were the apartments of Jessica Sundin, who was a principal leader of the mass march of 10,000 on the opening day of the Republican National Convention two years ago, and Mick Kelly, who was prominent in that protest and among those who announced plans to march on the Democratic National Convention in Minneapolis, if the city is selected to host it in 2012.

Mind you, a material support investigation must be tied to an official terrorist organization, as opposed to simply calling anti-war activists terrorists as the Bush Administration did in its investigations of anti-war activists.

Nevertheless, it doesn’t seem like much has changed since Bush was criminalizing political speech.

The Real Terrorists

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I’ve started reading through J. Edgar Hoover’s files the reports a contractor developed for PA’s Department of Homeland Security that describe political activism as a terrorist threat; Governor Rendell has made them publicly available here. I’ll have more to say about them later (though feel free to add comments on them below).

But for the moment, I’d like to unpack the underlying premise.

The whole idea behind collecting this information and sharing it with private sector entities like oil drilling lobbyists arose as part of efforts to protect our critical infrastructure from terrorist attack after 9/11. US DHS describes the imperative to protect critical infrastructure and key resources (CIKR) this way:

Why is CIKR Protection Important?

  • Attacks on CIKR could significantly disrupt the functioning of government and business alike and produce cascading effects far beyond the targeted sector and physical location of the incident.
  • Direct terrorist attacks and natural, manmade, or technological hazards could produce catastrophic losses in terms of human casualties, property destruction, and economic effects, as well as profound damage to public morale and confidence.
  • Attacks using components of the nation’s CIKR as weapons of mass destruction could have even more devastating physical and psychological consequences.

The Homeland Security Act of 2002 provides the primary authority for the overall homeland security mission. This act charged the Department of Homeland Security with primary responsibility for developing a comprehensive national plan to secure CIKR and recommend “the measures necessary to protect the key resources and critical infrastructure of the United States.” This comprehensive plan is the National Infrastructure Protection Plan (NIPP), published by the Department in June 2006. The NIPP provides the unifying structure for integrating a wide range of efforts for the protection of CIKR into a single national program.

And here’s what the federal government’s Department of Homeland Security considers critical infrastructure, which is how the ITRR organized the reports it gave to PA’s DHS:

So you see, because “attacks on CIKR could significantly disrupt the functioning of government and business alike and produce cascading effects far beyond the targeted sector and physical location of the incident,” PA (and surely other states) are collecting information about the lawful political organizing of anti-drilling and animal welfare activists, among others.

What I want to know is why we regard terrorist attacks to be the greatest threat to our transportation system? To our water? To our food system?

And most of all, to our banking and finance system?

Just to take one example, who do you think is a greater risk to our oil and gas infrastructure? A bunch of hippie protesters trying to limit drilling in the Marcellus Shale and thereby protect the quality of their drinking water (which is, itself, considered critical infrastructure)? Or PG&E, which sat on knowledge of an extremely high risk pipeline for three years even after setting aside the money to fix it?

Three years ago, PG&E asked state regulators for permission to spend $4.87 million to replace a section of the pipeline associated with the pipe that exploded in San Bruno last Thursday. The 1.42-mile section that ran under South San Francisco, which is more heavily populated than San Bruno, was considered extremely high risk and in need to replacement. Last year, the utility company made a similar request to replace a larger section of the same pipeline, at a cost of $13 million. Rate increases were approved and the plan should have gone forward. Sadly, nothing was done and lives were lost.

The South San Francisco pipeline replacement project was dropped down on the priority list and the money allocated for the work was spent elsewhere. Many experts and laypersons alike are now asking, why didn’t PG&E replace pipes they knew to be extremely dangerous?

And while multiple layers of government make sure the PG&Es of the world know about those hippie protesters, they can’t be bothered to require the utilities or pipeline operators to actually return the favor by revealing where the pipelines at risk of explosion are.

In a letter sent Friday, the executive director of the California Public Utilities Commission, Paul Clanon, sought the location of each pipeline segment on the list as well as a “detailed description of the criteria PG&E uses in deciding which pipeline segments to characterize as high-priority projects.”

Clanon defended the delay in seeking the list, whose existence PG&E disclosed as early as 2007, saying the agency didn’t see the need for the information before. Just because a site is on the list doesn’t necessarily mean it is dangerous, he said, adding that it’s not his agency’s role “to run the day-by-day activities of the utility.”

Leave aside our wholesale neglect of these elements of critical infrastructure themselves–the crumbling of our pipelines and roads and financial system because neither the public nor the private sector want to spend the money and time to keep them together–and focus on the information gathering part of it.

Because terrorism is somehow a greater threat to our country than PG&E’s neglect or Wright County Egg’s negligence or Lehman’s greed, we collect and share information on hippies. But not on the pipelines that will explode of their own accord, with action from neither hippies nor terrorists.

Updated to fix typo, “Communities” instead of “Communications.”

Is the Obama DOJ Still Coddling Colombian Terrorists?

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ProPublica had an important story a few days ago reporting that the cases of a number of Colombian paramilitaries extradited to the US on drug–not terrorism–charges have been sealed and largely disappeared.

Since 2006, more than a dozen of Colombia’s most notorious paramilitary leaders have been extradited to the United States to face drug-trafficking charges in federal district court in Washington.

The extraditions stunned Colombians, who had hoped that testimony from the men, given as part of a national amnesty program, would help expose the truth about two decades of vicious murders, assaults and kidnappings. In videotaped confessions in Colombia, one had taken responsibility for more than 450 slayings.

But outrage over the extraditions reached a boiling point earlier this year, when U.S. District Judge Reggie Walton blocked public access to seven of the paramilitary leaders’ cases, erasing virtually every trace of their existence.

There is no way to know if the men have negotiated lenient sentences — or if they are even still in custody. An eighth defendant, accused in Colombia of murdering a judge, was released on his own recognizance, records show, after cousins in College Park, Md., vouched for him.

The story is important on its face–for what it reveals about judicial secrecy–but also because of our unique relationship with Colombia and its right wing terrorists.

If I’m not mistaken the accused in these cases are members of the AUC (the story says the accused in these cases are members of the Self-Defense Forces of Colombia; the Autodefensas Unidas de Colombia–the AUC–is usually translated as the United Self-Defense Forces of Colombia), a terrorist group that has been on the State Department’s list of official terrorist organizations since 2001. If that’s right, in addition to being alleged drug traffickers, these accused are also terrorists.

Yet the ProPublica story doesn’t use the word “terrorist” once.

It doesn’t consider whether, rather than being sealed to protect an ongoing investigation of drug trafficking, they might be sealed because of national security claims connected to the accused’s role as terrorists.

Most charitably, the cases might be sealed because these accused drug traffickers are helping the government find other terrorists. But I don’t buy that.

Read more →

Pakistan Promises to Arrest Three “Very Bad Boys” Tied to Times Square Bombing

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Last week, the US put the Tehrek-i-Taliban Pakistan on its official terrorist lists and charged its leader, Hakimullah Mehsud, with something that was almost certainly not a crime. Oddly, though, DOJ did not charge Mehsud which actions they verbally alleged he committed that actually are a crime: conspiring with Faisal Shahzad in his attempted bombing of Times Square. I took from that that either DOJ knows Mehsud was not directly involved in the bombing (contrary to what they said publicly and Shahzad testified in court), or that they simply have no evidence of his involvement in spite of the reported cooperation of Faisal Shahzad.

Which is why I find it interesting that Pakistan has said it will charge (but apparently has not yet done so) three men in connection with the Times Square bombing.

Officials say the three men helped Shahzad to travel to northwestern Pakistan and meet militant leaders there, and sent him $13,000 in the U.S. when he ran short of money. The Pakistani official also said the charges won’t merely cover the plot by Shahzad – who was trained by terror goons in the northwest tribal hotbed of Mir Ali, near Afghanistan.

“They gave refuge to two suicide bombers who blew themselves up in Kashmir,” said the security official, referring to the swath of mountains India and Pakistan have fought over for decades. The businessmen who helped Shahzad were identified as Shoaib Mughal, Shahid Hussain and Humbal Akhtar.

“Those are very bad boys,” the Pakistani official said.

So what has the hold up been given that the Pakistanis presumably have testimony from Shahzad, wire transfer evidence, and documents they mention elsewhere in the article?

Last week, I wondered whether the whole campaign roll-out against the TTP was designed to help Pakistan overcome its reluctance to target the TTP, which has been very useful for Pakistan. And particularly since Shahzad has ties to the military through his retired Air Force father, whether Pakistan was trying to shield powerful people tied to the plot.

Suffice it to say this is feeling a lot like Pakistan’s “crack down” on AQ Khan.

Who We Are: Zeitoun and Camp Greyhound Five Years On

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In a country founded on “self evident truths” such as life, liberty, equality, and due process of law, the timeless quote from Ben Franklin speaks to the peril imposed when the founding principles are discarded or compromised:

Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.

Yet, of course, since 9/11 that is exactly what the United States has done and what has resulted in return. Fareed Zakaria has a piece up at Newsweek speaking to the senseless and destructive madness that has consumed the US since the 9/11 attacks:

The error this time is more damaging. September 11 was a shock to the American psyche and the American system. As a result, we overreacted.

….

Some 30,000 people are now employed exclusively to listen in on phone conversations and other communications in the United States. And yet no one in Army intelligence noticed that Maj. Nidal Malik Hasan had been making a series of strange threats at the Walter Reed Army Medical Center, where he trained. The father of the Nigerian “Christmas bomber” reported his son’s radicalism to the U.S. Embassy. But that message never made its way to the right people in this vast security apparatus. The plot was foiled only by the bomber’s own incompetence and some alert passengers.

Such mistakes might be excusable. But the rise of this national-security state has entailed a vast expansion in the government’s powers that now touches every aspect of American life, even when seemingly unrelated to terrorism.

…..

In the past, the U.S. government has built up for wars, assumed emergency authority, and sometimes abused that power, yet always demobilized after the war. But this is a war without end. When do we declare victory? When do the emergency powers cease?

Conservatives are worried about the growing power of the state. Surely this usurpation is more worrisome than a few federal stimulus programs. When James Madison pondered this issue, he came to a simple conclusion: “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germs of every other … In war, too, the discretionary power of the executive is extended?.?.?.?and all the means of seducing the minds, are added to those of subduing the force, of the people.

“No nation could preserve its freedom in the midst of continual war,” Madison concluded.

Indeed it is a chilling picture we have allowed our political “leaders” to paint us into, and Zakaria does not even hit some of the most disturbing impingements on due process and the rule of law such as the government arrogating itself the right to summarily execute American citizens with no judicial trial or due process whatsoever and the legal black hole that is Guantanamo and the Obama Military Commission and indefinite detention program. That is, as a nation, who and what we are today and it has bought us nothing except world scorn, geometrically more enemies, a plundered treasury, ignored and dilapidated domestic infrastructure, swelling joblessness and exploding income inequality.

But, hey, at least we have increased security and all those oppressive terrorist modalities are only for al-Qaida and the bad foreigners, right? No. The rot is now who we are, towards ourselves in addition to “them”. And that is where we finally get to the subject of the title of this post. Nothing demonstrates the deadly rot virus that has been injected into the blood of the American ethos than the story of Zeitoun. (more after jump) Read more →

On Tuesday, General Petraeus Achieved Victory in Oceania; On Wednesday, He Led Us to War against Eastasia

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The day after Obama declared victory (sort of) in Iraq, the Administration announced a whole package of sanctions against the Pakistani Taliban, Tehrik-e Taliban. The sanctions:

  • Designate TTP as a Foreign Terrorist Organization
  • Designate TTP as a Special Designated Global Terrorist Organization
  • Designate TTP’s two leaders, Hakimullah Mehsud and Wali Ur Rehman, as Special Designated Global Terrorists
  • Offer of $5 million reward leading to Mehsud or Rehman’s arrest
  • Charge Mehsud in connection with the Khost killings

Forgive me if I dismiss what are real measures against a genuinely dangerous organization. But I can’t help but suspect this lays the ground work to ensure we have a war against terror to fight (and with it, expanded executive powers) beyond July 2011.

Charging a formerly dead guy

Perhaps my favorite comment on the criminal charges came from reporter James Gordon Meek:

DOJ charges Pak #Taliban emir Hakimullah Mehsud in absentia for killing 7 CIA officers in #Afghanistan 12/09. Anybody tell CIA’s drone unit?

Presumably, Meek is referring to claims a US drone strike killed Mehsud in January, a claim the CIA once judged to have a 90% likelihood of being correct. There’s not much point in arresting Mehsud if he’s been dead nine months.

But the mention of CIA’s drone campaign in Pakistan raises a bunch more problems with DOJ’s charges. For starters, Mehsud’s wife–a civilian–was reportedly killed in that January drone strike too. Both the uncertainty the CIA has about its purportedly scalpel-like use of drones and the civilian deaths they’ve caused illustrate the problem with drones in the first place. Civilians–CIA officers–are using them in circumstances with significant collateral damage. It would be generous to call the use of drones in such situations an act of war; some legal experts have said the CIA officers targeting the drones are as much illegal combatants as al Qaeda fighters themselves.

The affidavit describing the evidence to charge Mehsud doesn’t say it, but underlying his alleged crime is the potential US crime of having civilians target non-combatants in situations that cannot be described as imminently defensive.

Charging someone for revenge on CIA’s illegal killing

Which leads us to the crimes for which they’re charging Mehsud: conspiracy to murder and conspiracy to use a WMD (bombs) against a US national while outside of the United States. Basically, DOJ is charging Mehsud with conspiring with Humam Khalil Mulal al-Balawi, the Jordanian doctor who committed the suicide bombing at Khost that killed 7 CIA officers and contractors.

Now, there’s not much doubt that Mehsud did conspire with al-Balawi. I just doubt whether it could be fairly called a crime. The affidavit describes two videos in which Mehsud stands side by side with al-Bawali. In one, both al-Balawi and Mehsud describe the upcoming attack as revenge for killings in the drone program–most importantly, of Mehsud’s brother Baitullah Mehsud from a CIA drone strike in August 2009.

Al-Balawi then continues alone: “This itishhadi [martyrdom-seeking attack] will be the first of the revenge against the Americans.” After additional declarations of revenge by al-Balawi, MEHSUD resumes speaking in Pashtu, explaining the motive for the upcoming suicide attack by al-Balawi, that is the death of the former emir of the TTP, Baitullah Meshud [sic] which MESHUD [sic] attributes to the Americans.

Remember, too, that al-Balawi was a double agent. The Americans believed he was helping them target people, people just like Mehsud. That means al-Balawi (and presumably through him, Mehsud) knew he was specifically targeting those behind the earlier killings in Pakistan when he killed them.

So al-Balawi successfully killed people who were either civilians, in which case their own strikes at Baitullah Mehsud and others may be illegal, or people who were acting as soldiers, in which case the attack on their base was presumably legal under the law of war. And for helping al-Balawi, DOJ is now charging Mehsud with conspiracy.

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