Where Will Obama Try Himself for Material Support for Terrorism?

I consider this a wicked brain teaser:

The Obama administration is engaged in a fierce debate over whether to supply weapons to the rebels in Libya, senior officials said on Tuesday, with some fearful that providing arms would deepen American involvement in a civil war and that some fighters may have links to Al Qaeda.

The debate has drawn in the White House, the State Department and the Pentagon, these officials said, and has prompted an urgent call for intelligence about a ragtag band of rebels who are waging a town-by-town battle against Col. Muammar el-Qaddafi, from a base in eastern Libya long suspected of supplying terrorist recruits.

“Al Qaeda in that part of the country is obviously an issue,” a senior official said.

On a day when Libyan forces counterattacked, fears about the rebels surfaced publicly on Capitol Hill on Tuesday when the military commander of NATO, Adm. James G. Stavridis, told a Senate hearing that there were “flickers” in intelligence reports about the presence of Qaeda and Hezbollah members among the anti-Qaddafi forces. No full picture of the opposition has emerged, Admiral Stavridis said. While eastern Libya was the center of Islamist protests in the late 1990s, it is unclear how many groups retain ties to Al Qaeda.

After all, according to Holder v. Humanitarian Law Project any help to a terrorist group–even counseling on how to make peace–is material support. And no matter how we try to spin arming rebels as an act of peace, it’s a good deal more help than legal counsel.

And, as the DC Circuit’s decision yesterday in Uthman Abdul Rahim Mohammed Uthman’s habeas suit makes clear, it’s not enough for a person to stop associating with al Qaeda in the 1990s, nor does the government need any real evidence of a tie between someone in al Qaeda’s vicinity to claim that person is a member of al Qaeda.

Uthman filed a challenge, and in February 2010, District Court Judge Henry H. Kennedy, Jr. ruled that he was being improperly held and that the United States had failed to demonstrate that he was a member of al-Qaeda. As ProPublica detailed, the government censored Kennedy’s decision and quickly appealed the case to a court that was already lowering the government’s burden for proving a prisoner’s detainability.

In another case last year, known as Salahi, the appeals court rejected a lower court’s standard that the government show direct evidence the detainee was a member of al-Qaeda. In that case, the court sent the detainee back to the district court to have his habeas corpus petition reheard.

In today’s opinion, written by Judge Brett Kavanaugh, the appeals court went further by reversing the habeas win outright. In doing so, the court determined that circumstantial evidence, such as a detainee being in the same location as other al-Qaeda members, is enough to meet the standard to hold a prisoner without charge.

That standard, the court wrote in its decision today, “along with uncontested facts in the record, demonstrate that Uthman more likely than not was part of al Qaeda.”

By the DC Circuit’s standards, it seems clear, at least some of the rebels we’ve been helping (and are debating arming) are the same as al Qaeda for legal purposes.

Which would mean we’ve already been offering material support to terrorists.

If I were Obama, I’d make the decision quickly about where he wants to be tried for material support of terrorism. If Bud McKeon has his way, he’ll take away the President’s decision-making authority on whether to try Americans in civilian or military trials.

So if you’re the President and need to decide where to try yourself for material support for terror, where do you do it?

Update: Mark Hosenball cites four different sources saying Obama signed a covert order to arm the rebels 2-3 weeks ago.

Obama signed the order, known as a presidential “finding”, within the last two or three weeks, according to four U.S. government sources familiar with the matter.

I forget. Does material support for terrorists done under cover of a Finding qualify as material support for terror?

It’s all so confusing!!!

  1. tjbs says:

    I’m cornfused when you wrote “the government censored Kennedy’s decision” was that a Judicial Branch decision or an Article One or Two branch decision ?

    It sure doesn’t sound like an independent Judiciary and because of that we are denied our information on making a choice in the Diebold voting booth, as if that mattered.

    • earlofhuntingdon says:

      Click through to the Pro Publica articles. The original judgment was withdrawn and a revised version, missing eight pages of the court’s reasoning, was substituted.

      The missing eight pages include the court’s critiques of the weaknesses in the government’s case, including that a key witness was determined to be psychotic and, therefore, unreliable. That a prosecutor would rely on such a witness for anything, let alone a key part of her case, suggests the case was at best weak. Pro Publica:

      The alterations are extensive. Sentences were rewritten. Footnotes that described disputes and discrepancies in the government’s case were deleted. Even the date and circumstances of Uthman’s arrest were changed. In the first version, the judge said Uthman was detained on Dec. 15, 2001, in Pakistan by Pakistani authorities. Rewritten, Kennedy said in the public opinion that Uthman admitted being captured “in late 2001 in the general vicinity of Tora Bora,” the cave complex where bin Laden was thought to be hiding at that time.

      The creation of the additional opinion stemmed from a mishap inside the Justice Department: Kennedy’s first opinion was accidentally cleared for public release before government agencies had blacked out all the classified information it cited.

    • emptywheel says:

      Adding to what EOH said, from my post on it (basically synthesizing Linzer’s work):

      Dafna Linzer has two important pieces on the habeas petition of Abdul Rahim Mohammed Uthman which should both be read in full. This one describes how the government’s case against Uthman, which alleges that he was one of Osama bin Laden’s guards, relies on the following testimony:

      * A statement from Hakim Abd Al Karim Amin Bukhari describing him as a member of OBL’s security detail. In his opinion on the case, Judge Henry Kennedy Jr treated that statement with skepticism because he believed it may have come second-hand from information Bukhari learned at Gitmo, and because Bukhari had become psychotic while at Gitmo, which rendered his statements about other detainees–according to a military psychologist–unreliable.
      * A witness statement from Abdul Rahman Ma’ath Thafir al Amri, based on a photograph, identifying Uthman as “Yasser Al-Madani.” As Linzer points out, calling him “al-Madani” would label him as a Saudi, not as the Yemeni he is. Al Amri killed himself three years ago after a hunger strike at Gitmo.
      * A statement from Salim Hamdan identifying Uthman as “Hudayfah al-Adani,” which is one of the few things Kennedy accepted as credible.
      * A statement from Yemeni detainee Sharqawi Abdul Ali al Hajj identifying Uthman as an OBL bodyguard. Before making that statement at Gitmo, Hajj was tortured in Jordan over a period of 19 months in Jordan. Kennedy ruled that Hajj’s statement was too closely tied to the torture he experienced in Jordan to be considered reliable.
      * A statement from Yemeni detainee Sanad Yislam al Kazimi saying a photo of Uthman looked like Hadayfah al-Yemeni, whom Kazimi claims to have seen in Kabul several months before Uthman arrived in Afghanistan. Kazimi claims to have been severely tortured in Dubai and Kabul in 2003. As a result, Kennedy deemed his statement, like Hajj’s, to be too closely tied to torture to be treated as credible.

      • earlofhuntingdon says:

        This is one reason Mr. Obama will continue to try to stifle and regulate the Internets:

        Pro Publica has published a comparison of the two opinions, here, taken from screen shots while the earlier opinion was a matter of public record.

        Judge Kennedy is clear that the DoJ’s failures led to his publishing his original opinion, which included material the DoJ claimed within about 25 hours was still classified. Subsequently, more than a month’s haggling led to Kennedy issuing his revised opinion, but in such a way that he avoided stating that it was a revised opinion.

  2. Arbusto says:

    While not the thrust of your article, I find Obama’s reaction in Libya a typical Obama circle jerk with too little, too late, suppling just enough support to enable the rebels to fail and establish a bifurcated, dysfunctional State. Also unlike past Al Qaeda efforts, well funded and equipped, are these phantom Al Qaeda terrorists welfare queens in need of US support. WTF?

  3. Frank33 says:

    This is not a problem. The US neo-con secret government provides high tech and weapons to Pakistan. In return, Pakistan supplies the terrorism. Of course Pakistan has a national policy of supporting terrorism, such as Mumbai. The US neo-con secret government conceals its material support of terrorism to Pakistan, and the Dee Cee Shills play along because they get paid off also.

    It is all good for assassins, gun-runners and investment bankers. The Albrittons (Riggs Bank) also supplied material support for the 9-11 terrorists.

  4. donbacon says:

    At the March 28 Pentagon press conference, the DOD claimed ignorance about who the Libya insurgents are (not difficult for them).

    Q: Do you know who the opposition is, and does it matter to you?
    ADM. GORTNEY: We’re not talking with the opposition. We have — we would like a much better understanding of the opposition. We don’t have it. So yes, it does matter to us, and we’re trying to fill in those gaps, knowledge gaps.

  5. JohnLopresti says:

    I am figuring some modernization of governments in the region, as many of the members of the public there are requesting, will lighten the load for many societal factions. Factionalism doubtless will persist; yet, if governments actually upgrade, they are likely to see fewer problems with the pernicious effects of arms trade, and people actually will be happier, and have more full lives. War is difficult; and I am not faulting Obama yet in this complex arena where longtime hegemons as well as upstarts are converging to have some say at future conference tables. I think it would be disingenuous to imagine it would be easy to accomplish some of Nato*s aims so far; they, too, know what interests exist in the region, and how complicated it is to control the enterprise toward which they have embarked. Congress made the DC court the gateway for habeas with MCA; let congress address the issue anew; and let*s see congress approving some Democratic party president*s nominees to that court and other benches. The Scotus Chief justice had it right in his 2010 state of the court report; congress needs to quit partisan retributive obstruction, at least some of the time.

  6. earlofhuntingdon says:

    Brett Kavanaugh’s appointment to the DC Circuit – generally regarded as the second highest federal appellate court and the principal farm team for candidates for the Supreme Court – was one of the most egregious in Bush’s eight-year term.

    Kavanaugh’s principal accomplishments after Yale Law School were serving as a staffer on the Hill, cooking and bottle-washing for Ken Starr, and shepherding CheneyBush’s judicial nominations through the Senate confirmation process. He had virtually never practiced law, achieved senior partner or general counsel or top executive status, been elected to high political office, run a large federal agency or served in any judicial capacity – all typical qualifications for a lifetime appointment to a seat on a federal appeals court. By comparison, Harriet Miers would have been over-qualified for appointment to the Supreme Court, and she didn’t make it

    Mr. Kavanaugh’s judgments are more reliably conservative and pro-executive power than Thomas’, Scalia’s, Roberts’ or Alito’s.

    • emptywheel says:

      Mr. Kavanaugh’s judgments are more reliably conservative and pro-executive power than Thomas’, Scalia’s, Roberts’ or Alito’s. Which is saying something.

      THere. Finished it for you.

      Yeah, I was rereading Bush’s Law in the last several day and just shaking my head that Cavanaugh went from basically a glorified secretary to Bush to serving on the Appeals Court.

  7. earlofhuntingdon says:

    [T]he court [Kavanaugh] determined that circumstantial evidence, such as a detainee being in the same location as other al-Qaeda members, is enough to meet the standard to hold a prisoner without charge.

    That standard, the court wrote in its decision today, “along with uncontested facts in the record, demonstrate that Uthman more likely than not was part of al Qaeda.”

    Depriving someone of their liberty, in the absence of a charge, ought to require more than circumstantial evidence or a “more likely than not” standard. Conviction, at least theoretically, still requires proof beyond a reasonable doubt. But who needs a conviction when the president asserts an unchallenged right to detain a citizen without charge or trial because someone on his staff considers that person scary.

  8. earlofhuntingdon says:

    On a thread last week about the government’s wide-ranging data collection and use practices, I hypothesized that circumstantial and accidental events could lead to an arrest. It ran something like this:

    Your car’s and your cell phone’s GPS tracking data shows that you stopped for five minutes near a Walgreen’s. You withdrew $400 from the ATM and went in to buy three bottles of hydrogen peroxide for an 8th grade boys’ club’s science experiment. Next door to Walgreen’s was a Starbucks and mosque. At the same time you ran your errand, an alleged member of al Qaeda walked past the mosque and stopped for a coffee at the Starbucks. You both left at the same time. Suddenly, you’re associates.

    If you happen to be blond, blue-eyed and a mother of three suburban kids, maybe you’re off the hook. If you have dark hair, a swarthy complexion, and the local FBI guy can’t pronounce your last name, you’re in trouble. If the alleged al Qaeda guy is stopped with $400 in new bills on him, and you can’t account for your ATM withdrawal, you’re in jail for allegedly providing material support. Facts and the truth to be produced later, maybe.

    I had no idea Brett Kavanaugh reads Emptywheel. He should reread the posts, though, to see how inappropriate it is to use such loose, passing in the night “connections” as “evidence” in criminal proceedings or as sufficient grounds to deprive someone, even temporarily, of their liberty.

    • emptywheel says:

      But that circumstantial evidence is still higher than the standard for indefinite detention, since that doesn’t even require any actually guilt.

  9. powwow says:

    Update: Mark Hosenball cites four different sources saying Obama signed a covert order to arm the rebels 2-3 weeks ago.

    Obama signed the order, known as a presidential “finding”, within the last two or three weeks, according to four U.S. government sources familiar with the matter.

    Just in time for the President’s Congressional Lap Dogs to fail to ask about that “finding” in today’s secret (“classified”) briefing of Congress at 5:00 p.m. (per Harry Reid in a news conference yesterday afternoon), about the President’s Personal War on Libya (using our military), by Secretaries Gates and Clinton and Chairman of the Joint Chiefs Mullen – who would all doubtless conveniently reply “I dunno,” if an actual “legislator” acting pursuant to the U.S. Constitution, which once governed this “Republic” and especially the optional, offensive use of its armed forces, did dare query them (in private) about Hosenball’s ominous report.

  10. MadDog says:

    OT – Just in case anyone might have missed this, from the DOJ today:

    Statement of Todd Hinnen, Acting Assistant Attorney General for National Security, Before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security

    Chairman Sensenbrenner, Ranking Member Scott, and members of the Subcommittee, thank you for inviting me to testify today. Three weeks ago, I testified before this Subcommittee on the three provisions of the Foreign Intelligence Surveillance Act (FISA) that were recently reauthorized by Congress but are scheduled to sunset again in May: the “roving” surveillance provision, the “lone wolf” definition, and the “business records” provision. Today I will address other national security investigative authorities enacted or amended as part of the USA PATRIOT Act, focusing in particular on the legal authorities relating to national security letters (NSLs). These authorities are not currently scheduled to expire, but I understand the Committee would like me to discuss their use, oversight, and importance to national security

    (My Bold)

  11. MadDog says:

    More OT – From Steven Aftergood over at Secrecy News:

    Six Days of Odyssey Dawn (Libya) Cost $400 Million

    The first six days of Odyssey Dawn, the US war in Libya, cost an estimated $400 million, according to a new report (33 page pdf) from the Congressional Research Service.

    “Using operational details provided by DOD and DOD cost factors, a ‘bottoms-up’ estimate of the cost of initial operations suggests that in the first six days of operations, DOD has spent roughly $400 million,” the report said…

    We probably put that on our VISA card:

    Enjoy the privileges exclusively for Visa cardholders and discover the magic of Disney Libya bursting with fun and wonder!

    • Knox says:

      If Obama got it for not being Bush, the committee members can only say in their defense that they were as fooled by him as the majority of Americans who voted for him.

      If they gave it to him as an effort to influence his presidency, they were painfully naive.

      Giving him an award he clearly didn’t deserve was pathetic and, I think, undermined his standing in the world.

  12. CTuttle says:

    Ex-CIA agent, Michael Scheuer…

    “There’s no U.S. interest in Libya. Nothing of importance. We might have an emotional interest there to help people and if that’s the case, send them food or medicine. But the correct card to play here was to stay home and stop spending $110 million a day when our economy is about to go belly-up,” Scheuer said.

    Scheuer says the Libyan rebels could prove to be as anti-American as Gadhafi and providing weapons to the resistance might end up being used against American forces.

    “Whatever military talent there is within the resistance in Libya is certainly from young men who have gone abroad to fight in jihad or in an insurgency in Afghanistan or Iraq or Somalia, the Balkans, Chechnya. And so what we’re doing in essence, it would be as if we were in Afghanistan and providing air support and arms to the Taliban,” Scheuer said.

    Sheuer said that while Osama bin Laden may not be directly involved in the current uprising in Libya, the number of people fighting in the Libyan resistance who have fought for causes of al-Qaida elsewhere “is very large.”

    • eCAHNomics says:

      Well, Scheuer has never been shy about advancing his own anti-OBL bona fides. And in the most inflammatory & exaggerated language he could conjure up.

      Still, he provides a convenient foil for the bleeding hearts on teh other side.

  13. rkilowatt says:

    Good grief! A study done at West Point Mil Acad in 1907 identified their eastern-Libya tribal roots, the heirachy of Haraidi [sp]family that dominateds North-east Libya and their 1st-ranking as source of foreign recruits into AlQ.

    I’ll look for link.

  14. ackack says:

    I have to love the optics here. One day, two weeks AFTER the covert order is signed, senior officials are still making false references to arming in the future tense.

    Is the White House really that dumb?

    I mean, the quote is from ‘senior officials’. So, they’re anonymous and out of the loop? Generally ignorant of policy actions? Someone who is normally in the loop and confidant enough to know what is really happening behind the scenes to say something not for attribution?

    Seems like a big misstep.

  15. Tom in AZ says:

    CArried over in case he missed it, sorry everyone.

    n response to BeachPopulist @ 52 (show text)

    I’ll engage you. Seems we should just skip this whole legal process and get to the outcome you like, huh? Nobody is happy about this chickenshit one month. But it is a big deal on the beltway if he actually has to do the time. I personally would like to see a bunch of these assholes lashed, but it is not going to happen.

    But prison is prison, even for a month. The door slams and that is it. You can’t do anything for the people you love, or to the people you don’t. You can’t do anything unless they allow it.

    And as someone who as actually been there and for more than a month, I can tell you that what you hope to happen to him should not happen to anyone. If you think that is about justice in prison you are just full of shit. It is about the strong exploiting the weak. And if there is no one around that fits your definition of needing ‘more justice’, then just anyone weaker will do.

    And there are enough pricks like you working FOR the prison system that a blind eye is turned many times. So fuck off. You get sentenced to prison TIME, not prison rape, beatings and all the other shit that goes down in there.

    A month is not enough, but what you seek is too much. I saw too much of it for a much longer time. But you learn to do only YOUR time, not someone else’s. You learn to shut yourself down, get up in the morning with the goal of trying to make the day go as quickly as possible. To be on guard and aware of your surroundings. And hope that when you finally get out of there, you can bring back the part of your soul you have suppressed for so long.

    You don’t need to be banned, you need to be ignored. You might want to be careful talking all that shit in public, you might mouth off to someone who had to put up with shit for a long time, and do not have to hear it from a wannabe like. you.

    • eCAHNomics says:

      But prison is prison, even for a month.


      On edit: I’m laughing, not bc your points about prison are not well taken, but bc no on associated with the USG will ever experience the travesties you describe as endemic in the prison system.

      Club Fed is an entirely diff, carved out sys, for special people.

      For the real people, the U.S. prison system is one of the most disgusting on earth.

      • Tom in AZ says:

        I know. But the door still slams. Some people just can’t deal with it at all. One could hope he has claustrophobia. Hell, I am as shocked as anyone he actually got time at all.

        I seem to have at least one conversation a day about these bastards and how much I hate them. The owner of my gym describes me to newcomers as their resident angry old man.

        • eCAHNomics says:

          But the door still slams. Some people just can’t deal with it at all.

          That’s the forgotten part about all human beings. And why I think solitary is the worst torture humans have ever invented.

          My guilty pleasure is L&O & CSI reruns, and I often find myself yelling at the TV about how they just don’t unnerstand how human variations and sensitivities vary.

          But I am so far in advance of teh times on that subject, I can only satisfy my emotions by yelling at the TV.

  16. eCAHNomics says:

    The Obama administration is engaged in a fierce debate

    Surely a battle of midgets. No offense to little people intended, just to little minds.

  17. Knox says:

    So, wait, the enemy of my enemy isn’t always my friend?

    That’s got to be news to most of the jackals who’ve been involved in formulating US foreign policy these last several decades…

    • eCAHNomics says:

      So wait…

      My short version of U.S. foreign policy is that our friends bc our enemies and our enemies bc our friends. Sometime within days.

      So of course the enemy of U.S. enemy is ALWAYS U.S. friend.

      Until not.


  18. Knut says:

    It strikes me that Obama is now finding where the rubber hits the road. T-bagging aside, he has had an easy ride to this point, and the mistakes that matter have been all of his own making. But he is now out there in no-man’s land, and since he fucked over his natural base of support, nobody’s got his back. If he thinks the bankster’s will back him, he’s going to have a big surprise.

    A smart guy, but more naive than we thought (or at least than I thought).

    • eCAHNomics says:

      he fucked over his natural base of support, nobody’s got his back. I

      In a manner of speaking.

      O certainly f’d over the progressives, but he bent over & spread his nether cheeks for his corp donors who are far more impt.

  19. Bluetoe2 says:

    If there is any justice Obama’s daughters will one day visit him in a prison cell in the Hague.

  20. rgreen says:

    Here’s a data point for a timeline consideration, given the news that a Presidential Finding was signed a couple of weeks ago. My cursory survey of the daily news had the people of Tunisia holding massive demonstrations and expressions of discontent, followed by the retreat of the country’s dictator. A similar scenario began to unfold in Egypt. Then the same thing began in Libya. Suddenly “the people” or “the protesters” began to be called “the rebels”. Did I miss some step in the evolution of events, or did this change in nomenclature coincide with the Finding?

  21. prostratedragon says:

    ProPublica has a post up on the [il]legality of introducing arms into Libya in view of the UN arms embargo, and the various progressions the White House appears to have checked off in response. (This article has no mention of the Finding, however.)

    Seems that back on March 7, P.J. Crowley, noted opponent of ridiculous, counterproductive, and stupid policies, stated in an interview that providing arms was “not a legal option” for the U.S. to pursue. The next day Crowley was saying that arming was not a practical option considering the embargo, but that the U.S. could seek a waiver from the UN.

    The next stage that ProPublica checks off is a version of the Hand of Glory theory of authorizations of military force with which we have become so familiar: “The White House and the Secretary of State have since said that arming the rebels would be legal, arguing that the UN resolution authorizing military intervention in Libya ‘amended or overrode’ the earlier arms embargo.” As if the resolution might not have contemplated a difference between members using their own weapons under the control of their militaries and handing them over to sundry Libyans with the brochures and a hearty “godspeed.”

    Not to worry though, for ProPublica has sighted the New York Trebuchet Times hastening to the scene, flinging as they come: the “arms embargo that applies to the entire territory of Libya, […] means that any outside supply of arms to the opposition would have to be covert.” Paint that on the side of your barn and admire it!