The LWOT: Judge Overrules Obama On Wiretapping; Domestic Terror Plots Disrupted
Foreign Policy and the New America Foundation bring you a new weekly brief on the legal war on terror. You can read it on foreignpolicy.com or get it delivered directly to your inbox -- just sign up here.
Federal judge rules against Obama on state secrets
U.S. Federal District Court of San Francisco Judge Vaughn R. Walker dealt a blow Tuesday to the position taken by both Barack Obama and George W. Bush's administrations by ruling that the National Security Agency (NSA) illegally wiretapped an Oregon-based Islamic charity in 2004. The ruling found that the NSA violated the Foreign Intelligence Surveillance Act by tapping the Al-Haramain organization's and two of its lawyers' phones without a warrant, invalidating a key component of the Bush administration's post-September 11 counterterrorism approach.
Both Bush and Obama sought the case's dismissal on the grounds that it would reveal "state secrets"; the Obama Justice Department has invoked this rationale in several other cases whose outcome is pending. The DoJ is is currently reviewing Judge Walker's ruling, and must navigate a complex set of choices before deciding on its course of action.
Federal judge rules against Obama on state secrets
U.S. Federal District Court of San Francisco Judge Vaughn R. Walker dealt a blow Tuesday to the position taken by both Barack Obama and George W. Bush’s administrations by ruling that the National Security Agency (NSA) illegally wiretapped an Oregon-based Islamic charity in 2004. The ruling found that the NSA violated the Foreign Intelligence Surveillance Act by tapping the Al-Haramain organization’s and two of its lawyers’ phones without a warrant, invalidating a key component of the Bush administration’s post-September 11 counterterrorism approach.
Both Bush and Obama sought the case’s dismissal on the grounds that it would reveal "state secrets"; the Obama Justice Department has invoked this rationale in several other cases whose outcome is pending. The DoJ is is currently reviewing Judge Walker’s ruling, and must navigate a complex set of choices before deciding on its course of action.
White House continues to stall on terrorist trials
Top Obama advisors continued to waffle this week on closing the Guantánamo Bay detention facility, as they debate whether to try alleged 9/11 mastermind Khalid Sheikh Mohammed and other suspected terrorists in civilian or military court. Despite the continued legal challenges to military tribunals, White House spokesman Robert Gibbs told MSNBC that KSM will be brought to justice, "in some form or another." Meanwhile, senior Obama advisor David Axelrod told CNN Sunday that he did not know when Gitmo would be closed, saying, "it’s complicated." And the New York Times‘ Charlie Savage reports on the sharp divisions among senior administration lawyers over the president’s power to detain terrorist suspects without trial.
In the meantime, polls show a 12-point drop in support for closing the prison since Obama took office. This revelation comes in a week when the Justice Department released new statistics supporting the administration’s assertions that hundreds of terrorists have been successfully prosecuted in U.S. civilian courts since 9/11. And while Obama’s deadline for closing Gitmo has come and gone, the Defense Department announced this week that it had designated a new commander of prison camps at the base, in time for the Military Commission trial for Sudanese man Noor Mohammed, charged with running a paramilitary camp in Afghanistan before 9/11.
The Christian Science Monitor this week has a fascinating profile of two of the nearly 500 lawyers who have worked pro bono to defend Guantánamo detainees. And under the headline "A Terrorist Lawyer, and Proud of It," Guantánamo defense attorney Nancy Hollander writes:
I am a terrorist lawyer, if that means I am willing to defend those accused of terrorism. I am currently defending two men imprisoned in Guantánamo and I defend others accused of terrorism.
Contrary to recent attacks by those who claim to be supporters of American justice, my defense of people accused of serious and sometimes horrific crimes is not an endorsement of those crimes. Rather, it is a testament to the strength of my belief in, and commitment to, the American system of justice.
Why? Because in my defense of every client, I am defending the United States Constitution and the laws and treaties to which it is bound, and I am defending the rule of law. If I am a terrorist lawyer, I also am a rule-of-law lawyer, a constitutional lawyer and a treaty lawyer.
Government offers legal arguments for drone strikes
Late last week, the State Department’s legal advisor Harold Koh offered a fuller explanation for the legality of drone strikes than has been given to date, saying that the strikes comply with "all applicable law, including the laws of war." Yet the justifications offered by Koh, a noted human rights lawyer and former dean of Yale Law School, only raised more questions among many commentators, who continue to doubt the program’s legality under international law. The American Civil Liberties Union will reportedly sue the government for the release of the full legal justification for these strikes.
Arrests made in two different terror plots
Raja Lahrasib Khan, a Chicago cab driver and naturalized American citizen, was arrested and charged March 26 with attempting to send money to al Qaeda by way of terrorist leader Ilyas Kashmiri. In statements made to an undercover FBI agent, the man claimed that he had known Kashmiri for 15 years and that Osama bin Laden is alive and giving orders to al Qaeda, as well as allegedly discussed a plot to blow up a Pakistani sports stadium. The government’s complaint can be found here.
Nine members of a radical Christian group known as the Hutaree were arrested in Michigan and several other states this week for plotting to kill a police officer and then launch an attack, employing guns and improvised explosive devices, on the officer’s funeral. In an interesting twist, the New York Times reports that other militia groups in the area refused aid to the group — the head of the Michigan Militia, a convert to Islam, even gave police information on the locations of several Hutaree members.
Trials and tribulations
- The Obama administration is set to change controversial air traveler screening protocols enacted after the failed Christmas day bombing of Northwest 253, relying on intelligence data and behavioral observations rather than the country of origin of travelers to decide who merits extra airport security attention.
- On April 1, the Treasury Department froze the assets of two alleged Europe-based terrorist facilitators, working for al Qaeda in Iraq and the Islamic Jihad Union.
- The trial for five Americans arrested in Pakistan in November 2009 on suspicion of terrorist activity opened March 31 in the city of Sargodha. The trial will resume again April 17.
- India continued this week to push for direct access to Mumbai attack plotter David Coleman Headley, who is currently in the United States after pleading guilty to federal terrorism charges in mid-March. The U.S. refusal is causing increasing strain between the two allies.
- In the wake of the dual suicide bombings in the Moscow subway that killed at least 39 people March 29, Russian President Dmitry Medvedev ordered authorities to use "more cruel" measures to hunt down terrorists, opening the possibility for more violence in the Caucasus and elsewhere in Russia.
- Germany has reportedly re-entered negotiations with the United States to take detainees from Guantánamo, and German officials have recently traveled to the prison to meet with several inmates.
- Time has finally run out for Jack Bauer: On March 26, Fox television announced that "24", the show that captured the fear and insecurity of many Americans after September 11 and may have influenced enhanced interrogation techniques used on detainees, has been canceled.
More from Foreign Policy
Lessons for the Next War
Twelve experts weigh in on how to prevent, deter, and—if necessary—fight the next conflict.
It’s High Time to Prepare for Russia’s Collapse
Not planning for the possibility of disintegration betrays a dangerous lack of imagination.
Turkey Is Sending Cold War-Era Cluster Bombs to Ukraine
The artillery-fired cluster munitions could be lethal to Russian troops—and Ukrainian civilians.
Congrats, You’re a Member of Congress. Now Listen Up.
Some brief foreign-policy advice for the newest members of the U.S. legislature.