Using the Law to Wage War

Legal experts at a New York conference devise a strategy to combat terrorism in the courts

Can law be used as a weapon of war?  Legal experts argued at a recent conference in New York City terrorists are using “Lawfare” to build humanitarian cases and international support for their tactics. Groups such as Hamas and the Council on American-Islamic Relations have filed lawsuits for “war crimes” or “crimes against humanity” against their political enemies in the West, tying up senior Israeli officials and others in expensive, and often damaging cases.

These misuses of law by terrorist organizations subvert a country’s foreign policy and interfere with diplomatic actions, panelists said.

Using the legal system for strategic political or military end is not a new idea: in fact, Americans have a legal and political tradition in using the law to pursue justice. But Brooke Goldstein, director of the LawFare Project, which works to raise awareness of the issue and the conference organizer, said terrorists twist international legal code for their own means.

Humanitarian Cause or Terrorism Tactic?

For example, terrorist groups bring lawsuits in countries that have nothing to do with the parties involved. One such case involved Tzipi Livni, leader of Israel’s Kadima party, who canceled a trip to England after a pro-Palestinian group was able to get a warrant issued for her arrest for alleged war crimes in Gaza.

In a written introduction to the conference Goldstein, listed some of the lawfare tactics used by terrorist groups: from “hate speech” lawsuits filed against those who speak publicly about terrorism, Al Qaeda operatives who position themselves as victims in the eyes of the law and media by filing torture claims.

British libel law is one of the most popular examples of how lawfare is used. Saudi royalty routinely used these laws to sue American journalists who uncovered or exposed ties to terrorism groups. In British libel laws because the burden of proof routinely falls upon the author, not only were US journalists loosing large settlements in court they were responsible for fees and damages incurred during the lawsuit.

Lawfare can also inhibit democracies from the right and ability to defend against terrorism when fundamentalists file lawsuits against Western countries using the principles of international criminal law. Panelists argued that the U.S. risked allowing terrorism organizations to have the upper hand without protecting their own citizens.

In events where the public safety is deemed at risk, speakers argued that the United States does not have to hew to international law or code. Many panelists also shunned the role of the United Nations Security Council in regulating international military force and security. Democracies should not have to get approval from the UN before deciding to use military force.

America's Role

The conference was a first attempt to formalize a strategy to combat these tactics by terrorism groups. Speakers, which included former New York City District Attorney Robert Morgenthau and Israeli Ambassador to the United Nations Gabriela Shalev, spent the day condemning lawfare.

“This is not a ‘mother may I?’ situation,” said former U.S. Ambassador to the United Nations John Bolton.  The packed and heavily secured room exploded with applause when Bolton declared, “We should say unequivocally that we recognize no higher authority in this world than the U.S. Constitution.”

David Harris, former chief of strategic planning for the Canadian Security Intelligence Service, asked the audience to imagine current scenarios in which the United States was strictly following international criminal law taking place in the time of World War II.

“Would Hitler’s assassination have been an international crime?” he wondered.  “Would each of America’s three million German (POWs) have been subject to individual law suits?” Harris explained that if America had taken this path during World War II, the war may have not come to the same conclusion and millions of lives could have been lost.

None of the discussion focused on America’s own legal quandary: the federal government’s decision to move the trial of Khalid Sheikh Mohammed and four other top Al Qaeda operatives away from New York City or if his day in court could be switched to a military commission.

Cara Tabachnick is news editor of The Crime Report

The Guantanamo Conundrum

Civil liberties advocates warn the President's failure to close the military prison, as promised, will lead to "grave consequences"

Will Guantánamo Bay ever close?  On Jan. 22, 2009, President Barack Obama won worldwide praise when he signed an executive order pledging to close the controversial military prison "no later than one year from now."

But on the eve of the anniversary of his promise last week, an anonymous "administration official" told The New York Times that up to 50 detainees would continue to be held at Guantánamo without trial for an indefinite period: they were, he explained, too difficult to prosecute, but too dangerous to release.

As far as human rights advocates were concerned, that was more than just another failed political promise.

"The consequences are grave," warned Stephen Abraham, a retired Lieutenant Colonel with the US Army Intelligence Corps Reserves, at a special panel convened  in New York last Friday, the day Guanatanamo was supposed to shut its doors forever. "Keeping it open affects our security because the symbol of Guantánamo, along with Abu Ghraib (the Iraqi prison where suspected militants were infamously tortured by US troops) will continue to be a spur to insurgents."

Worse still, say civil liberties advocates, the Obama administation has opened a new and potentially ominous challenge to the Constitution by endorsing a special category of  prisoner whose rights to an trial are suspended in the name of national security.

"We can't be true to our values and say the executive branch can decide who is too dangerous to be on the streets," retired Federal District Court Judge John Coughenour of Seattle told the audience. "That's not what this country is about. We can't just seize people and lock them up for what might be their natural lives."

Coughenour got a round of warm applause from the audience at the panel, held  at the Interchurch Center on New York's Upper West Side, and sponsored by a cohort of some of the country's most prominent civil liberties-oriented organizations, including The Constitution Project, the Open Society Institute and the Rockefeller Brothers Fund.

But it underlined the widening cracks in the pro-change coalition that brought Obama to the White House. Moderator Jeffrey Toobin of The New Yorker observed that opinions of liberal Upper West Siders and human rights crusaders now differed starkly from majority opinion across the nation, especially after the arrest of Umar Farouk Abdulmutallab, the 23-year-old Nigerian who was caught trying to ignite explosives in his underwear as his flight circled over Detroit. "There's a consensus in the rest of the country that's very different," Toobin said, noting the  90-6 vote in the Senate last May blocking the use of federal funds to close Guantánamo.

The advocacy reps were nonplussed. "People don't realize that 575 people have already been released from Guantánamo under the Bush Administration with little impact," insisted Shayana Kadidal, a senior managing attorney with the Guantánamo Global Justice Initiative of the Center for Constitutional Rights. "The president has to use his bully pulpit to address this, and then maybe America will get it."

Silence from the Administration

There was no one on hand from the Administration to explain why this wasn't going to happen any time soon. A representative from the Department of Justice originally scheduled to speak at the panel failed to appear.

About 200 prisoners remain at "Gitmo," a sharp reduction in numbers since the peak of the War on Terror. The administration plans to prosecute about 40 of them in connection with terrorism cases, including several who will be brought to New York to face charges of  conspiracy in connection with the Sept 11, 2001 attacks.

But at least 110 who have been cleared of any connection with terrorism are awaiting repatriation to other countries. As many as 40 of them are Yemenis, the audience was told.  Those prisoners, along with the 50 judged too dangerous to release but for whom authorities admit they have little hard evidence to prosecute, are effectively in limbo.

And despite plans to ship some of the Guantánamo detainees to a specially reinforced prison in Illinois, the revival of terrorism fears since the Christmas Day incident—and the efforts by the Obama Administration to look strong on national security—have complicated hopes that the President would revisit some of the assumptions about how to prosecute the war on terror which  opened his predecessor to worldwide condemnation.

"Obama now owns this place (Guantánamo)," said Kadidal. "He has failed to lead on the facts, failed to lead on legal standards, and failed to anticipate the resistance of the bureaucracy."

According to several of the panelists, the use of preventive detention without trial was central to the previous administration's approach of keeping its anti-terror intelligence gathering methods, including the use of torture, out of the reach of  the courts.

"But terrorism is at its heart a criminal act," said Abraham. "There is evidence. It can be prosecuted. Intelligence professionals are called to make decisions all the time about whethere they will continue an operation or bring a prosecution. There's no need to create a new box of prisoners who cannot be prosecuted and cannot be released."

The only dissenting note came from Celeste Koeleveld, who served as an Assistant US Attorney in the Southern District of NewYork until 2008,  and prosecuted a number of terror cases.

"What do we do when we know a person is hell-bent on destroying us?" she asked.

But the idea that federal prosecution of terror cases, including bringing accused terrorists to the U.S. mainland, poses special security risks was witheringly denounced by Judge Coughenour,  who presided over the 2005 trial of so-called Millennium Bomber Ahmed Ressam in Los Angeles, as well as the trial of 12 members of the violent Christian Patriot group know as the Montana Freemen in the late 1990s.

"The expenses of one billion dollars I'm hearing for the New York trial (of accused 9/11 mastermind Khalid Shaikh Mohammed) are startling," he said, pointing out there was "virtually no expenditure" on security in the Ressam trial, even though authorities learned only after the venue had been transferred from Seattle to Los Angeles, that LAX Airport had been his primary target.

"There are literally hundreds of so-called terrorists in federal prisons today, and there has never been an incident,"the judge said, adding that  no security incident had occurred in any of the 195 terrorism trials held in the U.S. over the past eight years.

"I lived in Billings,  Montana for the nine months of the Freemen trial, and I was under round-the-clock protection, " he said., "It was hard, but these are the things we do  (in the U.S. judicial system)."

Coughenour predicted that the consensus would eventually shift back to providing even the most dangerous suspected terrorists with the constitutional rights they were entitled to under U.S. law.  "As federal courts have more of an opportunity to speak to these issues, our values will count."

It's not likely to happen any time soon, however.  Kadidal noted Friday that the president could still live up to his original promise.  "There is still time left today," he said, glancing at his watch.

But the deadline came and went.

Stephen Handelman is the editor in chief of The Crime Report

Photo by casmaron via Flickr.

Judges Applying Varying Standards In Guantanamo Detainee Cases

As federal courts in Washington, D.C., hold habeas corpus hearings for Guantanamo detainees, judges must decide whether the government has proved that a detainee is dangerous. National Public Radio says a new study says the rules for those hearings are so unclear that judges are applying different standards — leading to different outcomes. "It would have helped if Congress had given us a definition of enemy combatant, but they didn't," says Chief Judge Royce Lamberth. "The Bush administration gave us four different definitions; the Obama administration gave us another definition; each of our courts is deciding for themselves the proper definition. Most of us have adopted one definition, but I have one renegade judge that's got another definition."

Benjamin Wittes of the Brookings Institution and Robert Chesney of the University of Texas Law School conducted a detailed study of the opinions in the Guantanamo trials and found that "the judges are playing the role of the legislature," as Wittes described it in an interview. "That is, they are writing the rules of the detention." Wittes and Chesney say judges disagree about what it takes for an al-Qaida member to prove that he has severed ties with the terrorist group; judges disagree on how much evidence the government must provide to prove that a detainee is an enemy combatant; and they disagree about whether coercive interrogations permanently taint subsequent confessions by detainees.

Congress Balks At Buying Illinois Prison To Replace Guantanamo

Rebuffed by skeptical lawmakers when it sought money to buy a prison in rural Illinois, the Obama administration still is struggling to replace the Guantanamo Bay prison, says the New York Times. Officials believe they are unlikely to close the Guantánamo Bay facility until 2011 at the earliest.

Officials estimated it could take 8 to 10 months to install new fencing, towers, cameras, and other security upgrades before any transfers take place. Such construction cannot begin until the federal government buys the prison. The federal Bureau of Prisons does not have enough money to pay Illinois for the center, which would cost about $150 million. When the White House approached the House Appropriations Committee about adding  $200 million for the project to the military spending bill for the 2010 fiscal year, Democratic leaders refused to include the politically charged measure.

Sending Guantanamo Detainees To Illinois Raises Novel Legal Issues

President Obama’s decision to transfer up to 100 terror suspects from Guantánamo Bay, Cuba, to a maximum security prison in rural Illinois sets the stage for high-stakes legal battles over what additional rights, if any, Al Qaeda suspects are entitled to, the Christian Science Monitor reports. From the moment the detainees set foot on U.S. soil, they will have the ability to tap into the full array of constitutional and other legal protections enjoyed by every American resident.  How broad might those protections be? “It is an unanswered question. We’ve never done this before,” says Duke law Prof. Scott Silliman.

The Obama administration may house some of the detainees sent to Illinois in open-ended military detention without charge. These are the detainees the administration considers too difficult to prosecute but too dangerous to send home. Silliman says such an effort will likely spark appeals. “Where is the authority to do that?” he asks. “You are talking about a domestic preventative detention program. I know of no statute that currently authorizes it.”

IL "New Guantanamo" Backers See Prison As Economic Boost

The Obama administration will decide within six weeks whether to make Illinois' Thomson Correctional Center the "new Guantanamo,"  housing dozens of suspected foreign fighters, reports the Washington Post. One source said, "Thomson is at the top of the list and something would have to knock it off." It's not a unanimous choice: Rep. Mark Kirk (R-IL.) and six Republican colleagues urged Obama "to stop any plan to transfer Al Qaeda terrorists to our state."

Sen. Majority Whip Dick Durbin (D-IL) called the prison, built eight years ago for $145 million, "vastly underutilized" in a county with 10.5 percent unemployment. "With up to 3,000 jobs on the line, this could be the biggest jobs creator in northwest Illinois since I've held elected office," he said. The state never has used more than a small fraction of the 1,600 beds.

Holder Faces 'Sea Change' At Justice Department

More than any other federal agency, the Justice Department is bracing for what the New York Times called "a broad doctrinal shift in policies from those of the Bush administration." The Senate is expected to confirm Eric Holder Jr. today as the nation’s 82nd attorney general, and he is expected to act quickly on reforms, including overseeing the creation of a new detention policy for terrorism suspects. An Obama administration lawyer said America should expect "a sea change of what went on before."

Holder will have to make several quick decisions because of court-imposed deadlines. And he will have to do so with many of the senior positions in the department not yet filled. The department has to decide by next month whether it will reverse course from the Bush administration, which had repeatedly invoked the so-called state secrets doctrine to shut down legal challenges to several lawsuits dealing with national security. Officials also face a February deadline on whether to extend habeas corpus rights to detainees at Bagram Air Base in Afghanistan.

Terrorism

As a topic of research and training expertise, terrorism has boomed since Sept. 11, 2001. Not coincidentally, the spigot of both government and private funding has been flowing wide open into the field. Thousands of potential sources now claim expertise in terrorism, from academics to think tanks to expert witnesses to for-profit firms that hawk anti-terrorism law enforcement or consumer products. (A Stanford University sociologist put together a research paper on the burgeoning subject—not terrorism, but terrorism experts: “The Rise of the Terrorism Expert: The Emergence of a New Field of Expertise.”) As always, journalists should be aware of the motivations of potential sources. This source list includes the RAND Corporation, the vast California-based nonprofit has one of the world’s largest and most venerable terrorism research divisions, with dozens of experts on staff who can speak to a number of terrorism-related topics. It might be a good place to start in the non-government sector.