More New York Republicans Providing Material Support to Terrorists

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Speaking of material support for terrorism, David Cole uses the recent trip by Rudy Giuliani and others to suck up to the Mujaheddin-e Khalq (MEK) as an opportunity to explain the idiocy of the Holder versus Humanitarian Law Project SCOTUS verdict.

DID former Attorney General Michael Mukasey, former New York Mayor Rudolph Giuliani, Tom Ridge, a former homeland security secretary, and Frances Townsend, a former national security adviser, all commit a federal crime last month in Paris when they spoke in support of the Mujahedeen Khalq at a conference organized by the Iranian opposition group’s advocates? Free speech, right? Not necessarily.

The problem is that the United States government has labeled the Mujahedeen Khalq a “foreign terrorist organization,” making it a crime to provide it, directly or indirectly, with any material support. And, according to the Justice Department under Mr. Mukasey himself, as well as under the current attorney general, Eric Holder, material support includes not only cash and other tangible aid, but also speech coordinated with a “foreign terrorist organization” for its benefit. It is therefore a felony, the government has argued, to file an amicus brief on behalf of a “terrorist” group, to engage in public advocacy to challenge a group’s “terrorist” designation or even to encourage peaceful avenues for redress of grievances.

[snip]

But in June, the Supreme Court ruled against us, stating that all such speech could be prohibited, because it might indirectly support the group’s terrorist activity. Chief Justice John Roberts reasoned that a terrorist group might use human rights advocacy training to file harassing claims, that it might use peacemaking assistance as a cover while re-arming itself, and that such speech could contribute to the group’s “legitimacy,” and thus increase its ability to obtain support elsewhere that could be turned to terrorist ends.

Cole goes on to note the hypocrisy of the government, which has given exceptions for humanitarian purposes to corporations seeking to sell cigarettes, even while arguing NGOs cannot provide food and water.

Mind you, I’m actually with Cole: Rudy and Mukasey and Fran Fragos Townsend and Tom Ridge ought to be able to go make speeches sucking up to Iran’s version of Ahmad Chalabi (oops! I forgot that Chalabi was Iran’s!), a bunch of liars who have invented intelligence to try to justify war with Iran. That’s what Republicans do, after all: promote hucksters who can justify the next war.

But it’s really time for either some consistency in the way the government pursues its war on terror violent extremism, or an admission that the war on terror has disintegrated into a war on those who oppose US empire. The government is still investigating a bunch of peace activists for material support. And yet four prominent Republicans can offer the same kind of material support as the peace activists–but this time in service of war or US hegemony or oil–with no similar consequences?

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Peter “Material Support for Terrorism” King

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The NYT has an editorial rightly condemning ascending Chair of the House Homeland Security Committee Peter King’s upcoming hearing to attack Muslims.

It is disturbing to listen to Representative Peter King, the incoming chairman of the Homeland Security Committee. He has announced plans to hold a hearing next month into what he calls the “radicalization of the American Muslim community.” Mr. King, a New York Republican, is no stranger to bluster, but his sweeping slur on Muslim citizens is unacceptable.

But the interesting bit of the editorial is the last paragraph.

He had better recall his role as a gifted intermediary in helping to settle Ireland’s sectarian troubles. He would have bristled at any simplistic talk about the “radicalization” of the Irish Catholic or Protestant communities. Chairman of the Committee on Homeland Security is a very serious job. Mr. King needs to get serious.

While the NYT points to what I believe to be the appropriate response to King’s fear-mongering, it misses the mark by about a decade or so. They point to King’s involvement in brokering peace in Northern Ireland. But of course the relevant bit is how King, for years, openly supported Irish terrorists.

He forged links with leaders of the IRA and Sinn Fein in Ireland, and in America he hooked up with Irish Northern Aid, known as Noraid, a New York based group that the American, British, and Irish governments often accused of funneling guns and money to the IRA. At a time when the IRA’s murder of Lord Mountbatten and its fierce bombing campaign in Britain and Ireland persuaded most American politicians to shun IRA-support groups, Mr. King displayed no such inhibitions. He spoke regularly at Noraid protests and became close to the group’s publicity director, the Bronx lawyer Martin Galvin, a figure reviled by the British.

Mr. King’s support for the IRA was unequivocal. In 1982, for instance, he told a pro-IRA rally in Nassau County: “We must pledge ourselves to support those brave men and women who this very moment are carrying forth the struggle against British imperialism in the streets of Belfast and Derry.”

By the mid-1980s, the authorities on both sides of the Atlantic were openly hostile to Mr. King. On one occasion, a judge threw him out of a Belfast courtroom during the murder trial of IRA men because, in the judge’s view, “he was an obvious collaborator with the IRA.” When he attended other trials, the police singled him out for thorough body searches.

Even the CIA acknowledges (though it bizarrely considers this secret) that NORAID existed to channel material support to terrorists.

In the twentieth century, Irish-Americans provided most of the financial support sent to the Irish Republican Army (IRA). The US-based Irish Northern Aid Committee (NORAID), founded in the late 1960s, provided the Provisional Irish Republican Army (PIRA) with money that was frequently used for arms purchases. Only after repeated high-level British requests and then London’s support for our bombing of Libya in the 1980s did the US Government crack down on Irish-American support for the IRA. (S//NF)

Peter King would still be in prison if the US had treated his material support for terrorism as it now does, with sentences that can amount to a life sentence. Instead, the raging hypocrite is using the Congressional seat he owes, in part, to his earlier embrace of terrorism to sow bigotry and hatred–and to make the cooperation of the Islamic community, which plays a key role in identifying real extremists, more difficult.

The correct response to King’s actions is undoubtedly to point to this rank hypocrisy. Perhaps the NYT is suggesting it will do just that if King doesn’t back off his fear-mongering. But I believe it is already far too late for polite society to continue to soft-pedal this issue. It is inappropriate for a former terrorist sympathizer to head the Homeland Security Committee. And particularly when King uses that position to pull stunts like this, polite society needs to call out his hypocrisy in clear terms.

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Did Brennan and Napolitano Have Advance Warning of the UK Arrests?

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Now that I’ve fetched Mr. EW from his 48 hour trip to Philadelphia from Dublin, my entire family will be in one place for the next day or so, so don’t expect much posting from me in that period.

But I did want to point to this detail about the alleged terrorists arrested the other day in the UK: they were allegedly plotting to hit the US Embassy.

The U.S. embassy in London was a target of a group of men arrested last week in Britain and charged with conspiracy to cause explosions and preparing acts of terrorism, the U.S. State Department said on Monday.Twelve men were arrested on December 20 in what British police said were counter-terrorism raids essential to protect the public from the threat of attack.

Which brings me back to my point of the other day: the possibility that Director of National Intelligence James Clapper did not know of the investigation and arrests before they happened. One possibility I suggested, for example, is that the British didn’t share details of the investigation with us because they had been burned (by Dick Cheney and Jose Rodriguez) in the past.

Only, this detail sort of extends my point. While it’s clear John Brennan and Janet Napolitano knew of the by then widely-reported arrests by the time Diane Sawyer asked James Clapper about them, had they known the US Embassy was a target (and that the news would be published in the next few days), they probably wouldn’t have claimed there was no tie between those terrorism arrests and threats to the US. Indeed, there’s some indication the entire government had no clue about that fact, given that ODNI’s statement about Clapper suggested that Clapper wasn’t immediately briefed because it didn’t appear there was a “homeland nexus.” Now maybe “homeland nexus” is a weasel way of saying we no longer consider our embassies overseas–not even the one in our closest ally’s capital–to be a target (if so, someone should tell Ahmed Ghailani’s lawyers, and all the other terrorists convicted in the US of striking US embassies overseas).

But the more likely possibility, given what Brennan, Napolitano, and Clapper have said is that the US–the entire government–was left out of the loop on this investigation. That’s certainly Britain’s prerogative. You never know when some Dick Cheney figure is going to sabotage a British investigation on them, after all.

But it does seem to be a notable data point.

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Obama/Bush DOJ Update to OLC Christmas Carol

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Earlier I linked to and posted the oh so hilarious (if you appreciate the humor in the supposed creme de la creme of government attorneys laughing about breaking the law and violating citizens’ rights) Christmas carol drafted by the DOJ’s Office of Legal Counsel (OLC) all the way back during the Carter Administration. It seems to be making a comeback through a post at Volokh Conspiracy.

Well, through what can only be described as a Christmas miracle, our very own Mary has “discovered” the new version, as updated by the Obama/Bush OLC:

You’d better watch out,
look up in the sky,
You’d better not doubt;
Better say your good bye.
Santa Claus is droning
Your home.

He’s paying out bounties,
For kids he pays five,
He’s razoring genitals
And burying alive.
Santa Claus is beating
the prone

He hears you in your cages,
Videotapes your screams and moans,
After sharing with Senate pages,
Then he’ll freeze you all alone

So–you mustn’t believe
In Justice tonight.
On Christmas Eve
She’s lost more than her sight
The OLC will help with hiding
Your bones.

As Mary noted, “Those jokers at OLC. At least they enjoy their work”. Indeed. With “wise men” like John Yoo, Jay Bybee and Steve Bradbury, what could go wrong?

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Is James Clapper’s Ignorance a Bug? Or a Feature?

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Director of National Intelligence James Clapper has been getting beat up because he got embarrassed by Diane Sawyer when he admitted he had no clue about a 12-person counterterrorism arrest in the UK earlier the day of the interview.

In an interview with ABC’s Diane Sawyer, taped Monday afternoon, Clapper was asked about the arrests, which had happened hours before and were featured on all of the network morning news broadcasts. Secretary of Homeland Security Janet Napolitano and Chief Counterterrorism Advisor John Brennan, who were also participating in the joint interview, were aware of the arrests.

“First of all, London,” Sawyer began. “How serious is it? Any implication that it was coming here? … Director Clapper?”

“London?” Clapper said after a pause, before Brennan entered the conversation explaining the arrests.

Later in the interview, Sawyer returned to the subject.

“I was a little surprised you didn’t know about London,” Sawyer told Clapper.

“Oh, I’m sorry, I didn’t,” he replied.

As a threshold matter, it would be the intelligence community’s fault as a whole if Clapper should have been, but wasn’t, briefed about this arrest (the Administration has explained that Clapper was involved in START Treaty briefings all day Monday, and so didn’t get briefed), not Clapper alone. But I’m also wondering whether there’s more to his not getting briefed.

Note, first of all, that there are two kinds of briefings Clapper might have–but apparently didn’t–get: briefing about the investigation itself, and a briefing about the arrests, either before or after they happened.

Here’s some of what we know about the investigation and raid:

  • The investigation, which has been going on for months, has been described as “intelligence-driven”
  • Authorities triggered the raid after intercepted communications revealed the plotters were preparing to act
  • Britian’s Home Secretary was told of the raids during the week of December 12 through 18
  • Lord Alex Carlile, who acts as a watchdog on UK terrorism operations, also described watching one of the operations involved in the investigation
  • The group has ties to a known (and banned) British radical Muslim group
  • Like many of the recent arrests in the US, this group is alleged to have been influenced by Anwar al-Awlaki
  • Muslim leaders in Cardiff tipped authorities off to a group of radicalized youth though MI5 seemed to already bee aware of the group; the group held a meeting two weeks ago attended by up to 30 people

Read more →

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Vaughn Walker Issues Final al-Haramain Opinion on Damages and Attorney Fees

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As you may recall, Chief Judge Vaughn Walker of the Northern District of California (NDCA), who has handled two of the most critical and transcendent litigations of the last decade, Perry v. Schwarzenegger and al-Haramain v. Bush/Obama, is retiring. Today, he has issued his last big opinion left on his table pre-retirement, the ruling on damages to be awarded Plaintiff in al-Haramain, assignment of attorney fees to Plaintiffs, and whether or not to impose punitive damages against the government for their offending illegal conduct.

The government, in its brief objecting to the Plaintiffs’ proposed form of judgment, basically poked the court in the eye with a stick by continuing their obstreperous refusal to accept the court’s jurisdiction over their assertion of state secrets, continued to argue there were no facts competently of record despite Walker’s crystal clear determinations to the contrary, and denied that Plaintiffs were entitled to attorney fees or punitive damages. They just say NO. The Plaintiffs went on to properly lodge their calculation of damages, detailed request for attorney fees and affidavit in support thereof. Plaintiffs al-Haramain, separately, filed a very compelling brief on why the court should award them punitive damages against the government. The government, of course, objected some more.

As lead Plaintiffs counsel Jon Eisenberg stated in the punitive damages brief:

Defendants abused the extraordinary power of the Executive Branch by committing unlawful electronic surveillance of the plaintiffs with full knowledge of, and in flagrant disregard for, determinations by top officials in the Department of Justice (DOJ) that the surveillance lacked constitutional or other legal support. Defendants sought to put themselves above the law, in the manner of a monarch. That is a profound abuse of America’s trust. It calls for strong medicine.

And thus it all comes down to today’s decision by Judge Walker, and here is the full text of his 47 page order.

In short, Walker has ordered that Plaintiffs Wendell Belew and Asim Ghafoor (a-Haramain’s attorneys wrongfully surveilled) receive $20,400.00 each in liquidated damages. Walker denied damages to al-Haramain itself. In regards to punitive damages, Judge Walker has denied in full Plaintiffs’ request. As to attorney fees, the court grants the motion as to Plaintiffs Ghafoor and Belew only (again, not as to al-Haramain itself, and awards attorney fees and expenses in the amount of $2,537,399.45.

There is a lot to chew on in this order, and both Marcy and I will be coming back to do just that after chewing and digesting it further. But so far, it is clear that the court sided completely with the plaintiffs on compensatory/liquidated damages, giving Belew and Ghafoor every penny they asked for and finding the government’s opposition meritless. This passage by the court is telling: Read more →

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Obama Formalizes His Indefinite Detention Black Hole

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Hot on the heels of the big DADT victory in Congress, which pretty much got passed in spite of Obama instead of because of him, comes this giant lump of coal for the Christmas stockings all those who believe in human rights, due process, the Constitution, and moral and legal obligations under international treaties and norms. From the Washington Post:

The Obama administration is preparing an executive order that would formalize indefinite detention without trial for some detainees at the U.S. military prison at Guantanamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration, U.S. officials said.

The administration has long signaled that the use of prolonged detention, preferably at a facility in the United States, was one element of its plan to close Guantanamo. An interagency task force found that 48 of the 174 detainees remaining at the facility would have to be held in what the administration calls prolonged detention.

This is certainly not shocking, as the Obama Administration long ago indicated there were at least 48 or so detainees they felt too dangerous to release and their cases unable to be tried in any forum, Article III or military commission. This is, of course, because the evidence they have on said cases is so tainted by torture, misconduct and lack of veracity that it is simply not amenable to any legal process. Even one of their kangaroo courts would castigate the evidence and the US government proffering it. That is what happens when a country becomes that which it once stood against.

Pro Publica fills in some of the details:

But the order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.

Nearly two years after Obama’s pledge to close the prison at Guantanamo, more inmates there are formally facing the prospect of lifelong detention and fewer are facing charges than the day Obama was elected.

That is in part because Congress has made it difficult to move detainees to the United States for trial. But it also stems from the president’s embrace of indefinite detention and his assertion that the congressional authorization for military force, passed after the 2001 terrorist attacks, allows for such detention.
….
“It’s been clear for a while that the government would need to put in place some sort of periodic review, and that it would want it to improve on the annual review procedures used during the previous administration,” said Matthew Waxman, a professor at Columbia Law School who worked on detainee issues during the Bush administration.

Unfortunately, it does not appear as if this ballyhooed “review” amounts to anthing meaningful to the detainee. Although the detainee would have access to an attorney, it would obviously not be unfettered access, completely on the government’s self serving terms, there would be only limited access to evidence, and, most critically, the “review” would only weigh the necessity of the detention, not its lawfulness. In short, it is a joke.

So, the next time you hear Mr. Obama, or some spokesperson for his Administrations decrying the horrible Congress for placing a provision in legislation prohibiting the transfer of detainees to the US for civilian trial, keep in mind how quickly Mr. Obama rose up to take advantage of it – before the measure was even signed – and also keep in mind how Obama stood mute when he could have threatened a veto of such an inappropriate invasion of Executive Branch power by the Legislative Branch. Keep in mind that this is likely exactly what the Obama Administration wants to cover feckless and cowardly indecision and so they do not have to make the difficult political choice of actually protecting the Constitution and due process of law.

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Protecting DC’s Metro from the FBI and Facebook

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While I’ve been in moving hell (one more day, a long drive, and then!!! relax), there have been two developments in the FBI’s efforts to fearmonger in the DC Metro.

As I first reported several weeks ago, TSA Director and former FBI Deputy Director John Pistole testified to Congress that we need to implement searches on public transportation because of the threat invoked by an FBI-invented plot.

We need to search people on the DC Metro, Pistole was basically saying, because the FBI chose to target the DC Metro in one of their stings.

On Thursday, the DC Metro announced they will–in conjunction with Pistole’s TSA–start conducting the random searches Pistole said we needed because of FBI’s sting.

Metro Transit Police today advised customers they will conduct random inspections of carry-on items, as part of the continuously changing law enforcement programs designed to keep the system safe.

[snip]

The inspections will be conducted in conjunction with Transportation Security Administration officials and are expected to take only minutes and are designed to be non-intrusive, as police will randomly select bags or packages to check for hazardous materials using ionization technology as well as K-9 units trained to detect explosive materials. Carry on items will generally not be opened and physically inspected unless the equipment indicates a need for further inspection.

Anyone who is randomly selected and refuses to submit their carry-on items for inspection will be prohibited from bringing those items into the station. Customers who encounter a baggage checkpoint at a station entrance may choose not to enter the station if they would prefer not to submit their carry-ons for inspection.

Since the time Pistole tried to use an FBI-invented plot to justify searches, a somewhat more real threat to the Metro did occur. On November 18, 2010, Arlington, VA resident Awais Younis boasted on his Facebook about the best way to maximize damage on–among other targets–the Metro.

The complainant recounted that during a chat with Ghilzai [aka Younis] in November 2010, Ghilzai described how to build a pipe bomb and what type of shrapnel would cause the greatest amount of damage. Ghilzai also stated that he could place a pipe bomb under a sewer head in Georgetown (assumed to be a reference to the neighborhood in Washington, D.C.) at rush hour to produce the greatest number of casualties. Ghilzai further stated that the third and fifth cars in the METRO trains had the highest number of commuters on them and he could place pipebombs in these locations and would not be noticed. Complainant responded by saying “you wouldn’t do that,”and Ghilzai replied by saying,”watch me.”

Mind you, there was little to indicate this was anything more than a boastful threat on the Toobz–Younis didn’t act on this threat. The FBI has as much as admitted that when they have emphasized that Younis wasn’t charged with any terrorism related charges.

Yet coverage of the decision to search the Metro mentioned both the FBI-created sting and this Facebook boast to explain the threat:

The inspections have been in the works for years, and are not a response to any particular threat, Taborn said. However, in recent months various threats to the system have come to light. One man was accused of casing stations in what he thought was an al-Qaida plot to bomb and kill commuters and another man is charged with threatening on Facebook to detonate pipe bombs in the subway system.

So it all works out! Based in part on the FBI’s own manufactured “terrorist attack” DC’s commuters will experience the joy of random searches.

Who needs real terrorist threats when the FBI can invent their own?

Update: Joy for job fixed per zapkitty.

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Jakubec Indicted in Federal Charges, Still No WMD Charge

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As TPM reported, yesterday the federal government indicted George Djura Jakubec–the guy who had so many terrorist-favored explosives at his house they’ve decided to burn down the house rather than collect it all. But just two of the charges focus on those explosives. The other six charges focus on four alleged bank robberies, two of them armed.

In other words, in spite of the fact that he had what might, depending on the use for which he intended them, be classified as WMD and Mohamed Osman Mohamud never had an active explosive, unlike Mohamud, Jakubec was still not charged with the possession of a WMD.

Now, as I discussed, the charging difference likely has everything to do with the fact that the Feds knew what Mohamud intended to do with the explosives he never had (largely because they helped him plot out his plan for them). Whereas they appear to not yet know why Jakubec was creating a massive stockpile in his Escondido home. That is, the charging difference does seem to accord with the crime (if you ignore the fact that Mohamud never had an active explosive).

But it seems worth tracking the different fates of these two men, if only to see how much more severely the Feds prosecute the crimes the FBI creates for them than those created by alleged criminals themselves.

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Can White People Be Charged with Use of a WMD?

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Let’s look at the following two examples of men arrested in the last week to see how the federal crime “Use of a Weapon of Mass Destruction” is used.

Mohamed Osman Mohamud: Mohamud was arrested Friday on charges of “attempting to use a weapon of mass destruction” for trying to detonate what he believed to be a car bomb in the crowd attending Portland, OR’s Christmas tree-lighting ceremony. Here’s how the FBI described that bomb:

The bomb was contained in the back of a late-model, white full-size van. The bomb was inert and constructed by FBI bomb technicians. It consisted of six 55 gallon drums containing inert material, inert detonation cord, inert blasting caps, and approximately one gallon of diesel fuel which gave off a strong odor. In the front seat of the van agents placed a detonation mechanism which consisted of a cellular telephone, a 9volt battery, an arming switch and a phone-jack plug.

The FBI set up this sting possibly because of a tip from Mohamud’s family, and definitely because of some emails Mohamud sent to a friend in Yemen and–later–Pakistan, and some pathetically unsuccessful attempts to email someone he allegedly believed could help him join Jihad.

George Djura Jakubec: After Jakubec’s gardener tripped off an explosion in his back yard last week, local authorities tried to search Jakubec’s house, which was said to have “the largest quantity of homemade explosives found in one location in the history of the United States,” including PETN (the explosive the TSA agents are searching for when they grope you) and HMTD (which has been used by al Qaeda and other Islamic terrorists). But authorities withdrew, twice, after determining Jakubec’s house too cluttered and dangerous to search. Jakubec is being held in county custody on 12 state charges of possession of a destructive device in public (one of which is tied to the injuries suffered by his gardener), 14 state charges of possession of the ingredients to make a destructive device, and two charges of robbery tied to bank robberies on June 25 and July 17 of this year.

So Jakubec–who had apparently large quantities of the explosives that terrorists favor and the ability to make more–is in San Diego County custody on state charges. Mohamud–who never had contact with a live bomb–is in federal custody on a charge that carries a life sentence.

Now, as odd as it may seem, explosives do qualify as WMD under this law, which includes chemical, biological, and radioactive weapons, as well as “destructive devices” including things like bomb, grenades, and missiles. The FBI is charging Mohamud with the following:

A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction against any person or property within the United States, and the mail or any facility of interstate or foreign commerce is used in furtherance of the offense shall be imprisoned for any term of years or for life.

I guess they’re arguing this constitutes an “attempt” to use a WMD (the car bomb), even though no WMD existed. And I assume they’re claiming an interstate or foreign commerce because they first contacted Mohamud pretending to respond to his unsuccessful emails to an alleged al Qaeda recruiter, though the bomb site is also in front of the US Appeals Court which they presumably could define as a federal target if pressed, though they don’t seem to be doing that.

Now, as compared to Mohamud, there may be reasons why they can’t or haven’t charged Jakubec with use of a WMD. Quite simply, they don’t know if Jakubec planned to use this arsenal, and if so, on what. Mind you, they appear to have decided they couldn’t construct an elaborate plot to find out because if they did they risked having him blow up southbound I-15 by mistake; they had to arrest him right away because his explosive were such a threat.

Which is not dissimilar to a pair of guys from last year. Najibullah Zazi, because his overseas contacts got him targeted for surveillance, got busted before his efforts to bomb the NY subway could develop completely. Zazi now appears to be cooperating with prosecutors. But Benjamin Kuzelka, who was developing the same TATP explosive as Zazi was, and who had white supremacist literature at his house when he set off an explosion, got off with a four year sentence.

Mind you, I think Zazi is a great person to charge with using a WMD (as is Faisal Shahzad, who was also charged with using a WMD). But I bet Kuzelka’s associates weren’t cross-checked for their hydrogen peroxide purchases, as Zazi’s appear to have been.

That’s my biggest concern: that the quickness with which the government slaps a WMD charge on someone experimenting with explosives reflects its interest or disinterest in fully investigating that person’s goals and associates. One of the more notable cases of a white supremacist plotting to use WMD–with actual chemical weapons, in fact–died in prison without ever being charged with WMD charges and before authorities discovered what he intended to do with his chemical weapons.

That said, we do have at least one very notable case where white people got charged with using and conspiring to use WMD: the Hutaree militia. Mind you, the FBI found them before they exploded themselves or their gardener.

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