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More Failed Targeting Based on Travel Patterns

The other day I noted what happened when the US or its allies applied the standard it is using in the Latif case: targeting people based on claims the route they traveled makes them a terrorist. In Turkey, 34 Kurds were killed because they were using the same path PKK guerrillas use.

In Honduras, our travel-based targeting appears to have killed civilians as well, sparking anti-US outrage in response. On May 11, four Hondurans were killed in a joint DEA-Honduran attack against suspected drug traffickers. It turns out the law enforcement officials (the US claims DEA agents didn’t shoot) shot at an unlit boat carrying 4 civilians nearby, not the lit traffickers’ boat; the traffickers escaped.

In US denials of fault, they said the unlit boat could not have been civilians, since it was the middle of the night. But it turns out there is a reasonable explanation for their presence.

In fact, Ms. Lezama and her husband say, they were not fishing, as the mayor initially suggested — they were returning from a daily trip in which they dropped off lobster fishermen at the Caribbean coast, coming back with passengers picked up at several spots along the river.

“We’ve been doing this for 25 years, day and night,” Ms. Lezama said. Her husband and other relatives, surrounding her as she lay in bed, nodded. They and other town residents confirmed that the family business had been making the trip for years.

And the spot in the river where the shooting occurred is not as isolated as Honduran and American officials have suggested.

The Patuca River is like a highway; it’s always full of traffic from the village,” said Mayor Lucio Baquedano. Indeed, on Friday afternoon the landing where witnesses said the shooting occurred looked like a taxi stand: about 20 long, skinny boats bobbed in the brown water. A gray Yamaha motor hung from the back of one carrying families east to Brus Laguna, a larger town where Ms. Lezama’s boat usually stops. In another sat a red bike, while in a third, a man carried a hunk of freshly cut wood as long and wide as his leg.

Near the end was Ms. Lezama’s blue boat. A half dozen gunshot holes could clearly be seen.

“What worries me is that if there are more drugs moving along that river,” Mayor Baquedano said, “more of our people are going to be attacked.” [my emphasis]

Another common highway Americans didn’t recognize as such, seeing instead a route conveying only traffickers.

How many times do you suppose we’re going to do this before we learn that common travel routes are not, themselves, evidence of terrorism or trafficking?

With Latif Decision, Section 1031 Authorizes Indefinitely Detaining Americans Based on Gossip

As I noted yesterday, both Dianne Feinstein and Carl Levin understand Section 1031 of the Defense Authorization to authorize the indefinite detention of American citizens. Levin says we don’t have to worry about that, though, because Americans would still have access to habeas corpus review.

Section 1031 makes no reference to habeas corpus, and places no limitation on habeas corpus review.  Nor could it.  Under the Constitution, habeas corpus review is available to any American citizen who is held in military custody, and to any non-citizen who is held in military custody inside the United States.

Even ignoring the case of Jose Padilla, which demonstrates how easily the government can make habeas unavailable to American citizens, there’s another problem with Levin’s assurances.

Habeas was gutted on October 14, when Janice Rogers Brown wrote a Circuit Court opinion holding that in habeas suits, judges must grant official government records the
presumption of regularity.

The habeas case of Adnan Farhan Abdul Latif largely focused on one report purporting to show that Latif fought with the Taliban. I suspect the report is an early 2002 CIA report, written during the period when the US was trying to sort through hundreds of detainees turned over (sometimes in exchange for a bounty) by the Pakistanis. The report I suspect is at issue summarizes the stories of at least 9 detainees, four of whom have already been transferred out of US custody. David Tatel’s dissent makes it clear that there were clear inaccuracies in the report, and he describes Judge Henry Kennedy’s judgment that this conditions under which this report was made–in the fog of war, the majority opinion agrees–increased the likelihood that the report was inaccurate. Of note, Latif’s Factual Return reveals the government believed him to be Bangladeshi until March 6, 2002 (see paragraph 4); they blame this misunderstanding on him lying, but seeing as how the language of an interrogation–whether Arabic or Bangladeshi–would either seem to make his Arab identity clear or beset the entire interrogation with language difficulties, it seems likely the misunderstanding came from the problem surrounding his early interrogations.

Beyond that report, the government relied on two things to claim that Latif had been appropriately detained: The claim that his travel facilitator, Ibrahim Alawi, is the same guy as an al Qaeda recruiter, Ibrahim Balawi (usually referred to as Abu Khulud), in spite of the fact that none of the 7 detainees recruited by Balawi have identified Latif. And the observation that Latif’s travel to Afghanistan from Yemen and then out of Afghanistan to Pakistan traveled the same path as that of al Qaeda fighters (here, too, none of the fighters who traveled that same path identified Latif as part of their group).

In other words, the government used one intelligence report of dubious reliability and uncorroborated pattern analysis to argue that Latif had fought with the Taliban and therefore is legally being held at Gitmo.

And in spite of the problem with the report (and therefore the government’s case), Judge Janice Rogers Brown held that unless Judge Kennedy finds Latif so credible as to rebut the government’s argument, he is properly held. More troubling, Rogers Brown held that judges must presume that government evidence gathering–intelligence reports–are accurate as a default.

When the detainee’s challenge is to the evidence-gathering process itself, should a presumption of regularity apply to the official government document that results ? We think the answer is yes.

Rogers Brown is arguing for a presumption of regularity, of course, for the same intelligence community that got us into Iraq on claims of WMD; the report in question almost certainly dates to around the same period that CIA went 6 months without noticing an obvious forgery.

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