The case was brought over ten years ago by several humanitarian groups concerned that their activities in relation to the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) would lead to prosecution under the material-support statute.  Both the PKK and the LTTE have been designated as foreign terrorist organizations by the State Department.

Ralph Fertig, a professor at the University of Southern California, argued that the humanitarian groups did not intend to further any illegal activities but instead hoped to “train members of the PKK to use humanitarian and international law to resolve disputes; to engage in political advocacy on behalf of Turkish Kurds; and to teach the PKK to petition groups such as the UN for relief.”

Writing for the majority, Chief Justice Roberts rejected both of the plaintiffs’ main claims.  First, the Court stated that the statute provides fair notice in relation to the plaintiffs’ proposed conduct and therefore is not unconstitutionally vague.  Second, the Court stated that the statute does not violate the plaintiffs’ First Amendment right to free speech.

In addressing the second claim, the majority noted that Congress rejected the plaintiffs’ argument that their support would only advance the legitimate activities of the PKK and LTTE when it passed the material-support statute and that the record confirms that Congress was justified in rejecting the argument.  The Court noted that although it does not defer to the government’s reading of the First Amendment, it is mindful that government agencies charged with combating terrorism have strongly supported Congress’s finding that contributions to terrorist groups further the groups’ illegal activities, even if intended to support legal activities.

The Court clarified that the question is “not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct.  It is instead whether the Government may prohibit what plaintiffs want to do—provide material support to the PKK and the LTTE in the form of speech.”  Chief Justice Roberts emphasized that the “statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization,” and does not cover independent advocacy that might be viewed as promoting the group’s legitimacy.

Organizations such as the Carter Center and the American Civil Liberties Union were disappointed by the Court’s ruling.  Former president Jimmy Carter stated that the statute inhibits the work of human rights and conflict resolution groups as well as peacemaking organizations that must interact directly with terrorist groups.

Chief Justice Roberts was joined in his opinion by Justice Kennedy, Justice Thomas, Justice Scalia, Justice Alito, and Justice Stevens.  Justice Breyer wrote a dissent, in which Justice Sotomayor and Justice Ginsburg joined.

The dissent agreed with the majority that the statute is not unconstitutionally vague but argued that the government failed to show that an interpretation of the statute that would prohibit the plaintiffs’ activities serves the government’s compelling interest in combating terrorism.

The Justice Department, in an attempt to bolster its argument that suspected terrorists can be tried in civilian courts, released a report earlier this month that includes a chart detailing over 400 convictions of terrorists obtained in such courts.  But this effort has not halted GOP criticism of the wisdom of civilian trials for terrorists.

The Justice Department’s report is part of an effort to push back against Republican opposition to the decision to try 9/11 mastermind Khalid Sheikh Mohammed (KSM) in a civilian court in New York City.  The chart purports to demonstrate the U.S. government’s proven success in trying terrorists in civilian courts; the Justice Department contends that it has obtained even more convictions than those listed, as it does not include ones that remain under seal or that solely involved domestic terrorism.

Republicans remain unsatisfied.  Senator Jeff Sessions, Ranking Member on the Senate Judiciary Committee, responded that the vast majority of convictions involve document fraud and immigration violations, a far cry from the crimes with which KSM will likely be charged.  Sen. Sessions’s comments focused on the trial of Zaccarias Moussaoui, the so-called “20th hijacker”, which, he contends, was “fraught with procedural problems, delays, appeals, risks to classified evidence, and even a lone holdout juror who spared [Moussaoui] the death penalty.”  Such problems will be experienced in future terrorism trials, according to Sessions.  He continues to call for the use of military commissions, as he believes they are “consistent with our laws, history, security, and values . . . .”

Image courtesy of the Associated Press

There is hope that a tool for tracking terrorists’ finances that was effectively eliminated by the European Parliament in February will come back online this summer.

The Terrorist Finance Tracking Program (TFTP) was started after the September 11th attacks as a way to identify, track, and pursue suspected terrorists and their finances.  As one part of the program, the U.S. government would subpoena banking records from the Society for Worldwide Interbank Financial Telecommunication (SWIFT), a consortium of banks that serves as the middle man for billions of transactions each year.  Although SWIFT is a Belgian company, the U.S. government was able to obtain SWIFT’s records because many of its databases were housed in the United States.  In January, though, SWIFT moved most of those files to the Netherlands, forcing the United States to get European permission to continue this part of the program.

In February, despite intense lobbying from American and European officials, the European Parliament rejected an interim agreement to keep the program running while a longer-term agreement could be reached.  The rejection, by a vote of 378-196, reflected the Parliament’s dissatisfaction with the level of data protection as well as anger over being left out of negotiations.

The European Commission has put forward a new proposal that seeks to address the Parliament’s concerns.  The proposal includes greater oversight, including requirements that the Commission regularly report to the Parliament concerning the amount of information processed and used for counter-terrorism purposes; approval by a judicial authority for transfers of data; absolute prohibition on transfers of bulk data to third countries; and a right of the European Union to terminate the agreement in the event of a breach of the safeguards.  (More information can be found here.)

An alternative discussed by some European officials is for the Commission to develop its own terrorist finance tracking system.  But such a system would be expensive and require E.U. member states to delegate powers to oversee the effort, an unlikely proposition in an area where member states still zealously protect their sovereignty.

Once the proposal is approved by member states, the Commission will lead the negotiations with the U.S. government.  The final agreement will then require the approval of the national governments and the European Parliament.  E.U. Home Affairs Commissioner Cecilia Malmstrom said that “we have good hopes that we might be able to finalize this by summer.”  The U.S. Mission to the European Union stated that the parties should “quickly move forward with constructive negotiations toward a long-term agreement.”

For more information, see The New York Times and the E.U. Observer.

On Wednesday, March 31^st, U.S. District Judge Vaughn Walker, Chief Judge of the Ninth Circuit’s Northern District of California, granted summary judgment for the plaintiffs in a suit against the U.S. government brought by the Al-Haramain Islamic Foundation (“Al-Haramain”).

The Oregon nonprofit corporation and two of its attorneys, Wendell Belew and Asim Ghafoor, sued high-ranking U.S. officials and associated government agencies in early 2006, alleging they had been subject to warrantless electronic surveillance.  The plaintiffs sought civil damages under the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-71 (“FISA”).  In response, the government argued that the state secrets privilege required the dismissal of the case.

In his 45-page opinion, Judge Walker stated that the plaintiffs had produced enough public information to prove that Al-Haramain had been wiretapped in a manner that required a warrant and since the government had failed to produce such a warrant, summary judgment for the plaintiffs was appropriate.  Rejecting the government’s state secrets argument, Judge Walker stated that in this case, the FISA law trumped the state secrets claim.

Jon Eisenberg, an attorney for the plaintiffs, stated that his clients have proof of at least 202 days of surveillance and that the law allows penalties of $100 a day per violation per person, as well as additional, punitive damages.  Mr. Eisenberg said, however, that the case is not about recovering money, but about “presidential power.  Kings, monarchs are above the law, not United States presidents; they don’t have the freedom to ignore the act of Congress.”

The Department of Justice has not announced whether it will appeal the March 31^st ruling.

Image courtesy of ars technica

According to the Washington Post, White House advisers recently stated that alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM) will most likely be tried before a military commission.  However, the debate still rages.  Last November, NSJ provided a brief overview of arguments for and against trying KSM in civilian courts.  While many of the arguments in the current debate are substantially similar to those put forward last fall, Foreign Policy magazine and the Washington Post recently published three unique arguments on the topic.

Writing in Foreign Policy, Benn Steil of the Council on Foreign Relations and Peter J. Wallison of the American Enterprise Institute argue that trying KSM in a civilian court could undermine global faith in America’s respect for the rule of law.  Steil and Wallison point out that President Obama and Attorney General Holder have “confidently predicted the death penalty for Mohammed, while simultaneously insisting that he will receive a ‘fair trial.’”  They contend that for a trial to be fair, the state must respect any outcome.  While they acknowledge the possibility of KSM being acquitted is remote, they insist that the possibility exists.  However, Steil and Wallison also believe it would be inconceivable for the Obama administration to let KSM go free.  Thus, they conclude, a civilian trial would be an obvious, cynical political cover for KSM’s execution.

In contrast, Tom Malinkowski, the Washington director of Human Rights Watch, argues that the United States should try KSM in a civilian court because he does not deserve the honor of a military trial.  According to Malinkowski, military trials are reserved for warriors; civilian courts are the proper venue for murderers, rapists, drug dealers, pimps, and terrorists.  Terrorist organizations actively seek to portray themselves as warriors, because it helps them justify their crimes and recruit glory seekers.  Trying KSM in a civilian court, Malinkowski argues, would both frustrate al Qaeda’s intentions and present KSM to the world as the common criminal he is.

Jack Goldsmith of Harvard Law School and Benjamin Wittes of the Brookings Institution take a third approach and argue that the Administration should not try KSM at all.  According to Goldsmith and Wittes, trying KSM before a military commission would create unacceptable legal and political risks.  Military commissions raise novel legal issues that might take years to sort out, which would render them ineffectual.  Moreover, the American Left and many Europeans see military commissions as illegitimate and would seek to ensure others also shared that view.  Yet Goldsmith and Wittes also argue that, even though the benefits of a civilian trial — the option of the death penalty, enhanced legitimacy abroad, and some catharsis — are significant, they are not worth the political costs that the Administration has been paying.  Instead, they believe President Obama should simply hold KSM and other terrorists indefinitely in military detention.  Indeed, they see military detention playing a vital role in incapacitating terrorists for some time.  Moreover, they point out that President Obama, Republicans, and the courts have already accepted the legitimacy of detention.  Instead of wasting energy arguing over which forum in which to try KSM and other terrorists, they contend that both sides should focus on defining the contours of the detention system.

NSJ will continue to cover the trial of KSM and other terrorists as new developments unfold.

Image courtesy of Getty Images, via Life Magazine

Five American Muslims who were detained in Pakistan on suspicion of terrorism have alleged torture by American and Pakistani authorities.  The men, all from the Washington, DC area, were detained in December shortly after arriving in Pakistan.  The Pakistani government has accused them of plotting terrorist attacks in Pakistan and seeking to join Islamist militants fighting U.S. troops in neighboring Afghanistan.

On February 2nd one of the men tossed a tissue to reporters while being led into court.  The tissue read, “Since our arrest, the U.S., F.B.I., and Pakistani police have tortured us.  They are trying to set us up.  We are innocent.  They are trying to keep us away from public, media and families and lawyers.  Help us.”

A spokesman for the American Embassy in Islamabad, Richard W. Snelsire, said the United States “categorically rejects those allegations,” but takes seriously the claims and will ask Pakistan to address the accusations.

This will only further complicate current U.S.-Pakistan relations, as the United States has been pressing an often-reluctant Pakistan to crack down on militants, many of whom are believed to be carrying out attacks on U.S. and NATO forces.

For more information see here.

Image courtesy of the Christian Science Monitor

On March 23rd, the Supreme Court is scheduled to hear arguments concerning the power of a federal judge to compel the Executive to admit detainees into the United States.  But a two sentence order issued by the Court on Friday signaled that new developments may result in the Court never reaching the merits.

The case, Kieymba v. Obama, involves a group of Uighurs, Chinese Muslims who were captured by bounty hunters in the early days of the Afghanistan war.  The Bush administration declared the group enemy combatants and they were sent to Guantanamo.  Eventually, the administration determined they were harmless, but ran into problems trying to release them.  President Bush did not want to let them into the United States, nor did he want to send them to China, where they had legitimate fears of torture.  Other countries did not want to accept the Uighurs out of fears of angering the Chinese. Thus, they were kept in a legal limbo: found to be harmless but remaining detained.

The Uighurs filed writs of habeas corpus to which the Bush administration, after decisions in other cases, eventually dropped its opposition.  The question became the remedy.  Traditionally, the remedy for habeas corpus is release from confinement.  But release to where?  A D.C. Circuit District Court judge ruled that the Executive must release the Uighurs into the United States.  The administration appealed and won in the Court of Appeals for the D.C. Circuit.  That court held that the decision over whom to admit into this country is exclusively one for the political branches; the courts have no say in the matter.  The Supreme Court accepted to hear the case in October.

Earlier this month, the Obama administration got a break: Switzerland agreed to accept the last two Uighurs.  The Solicitor General wrote to the Court claiming that these developments “eliminate the factual premise” of the case, namely that “the prisoners have no possibility of leaving Guantanamo Bay except by release into the United States,” and therefore the case should be dismissed.

The Court has ordered supplemental briefing on what effect these developments have.  If the Court determines that it cannot hear the case, there are two routes it could take.  First, it could decide to dismiss the case as improvidently granted (“DIG” in court parlance).  This would leave the Court of Appeals decision intact, thus giving the Executive a powerful piece of precedent to use in future disputes.  However, there is another avenue.  The Court may reach the merits and decide that the case has become moot, which would have the effect of vacating all lower court decisions.  Any future president wishing to argue for judicial deference on the issue of detainee release would have to start again from a blank slate.

The supplemental briefs are due this Friday, February 19th.

More information about the case can be found at SCOTUSblog and Legal Times.  Linda Greenhouse, former Supreme Court correspondent for the New York Times, offers her assessment here.

UPDATE: On Monday, March 1st, the Supreme Court issued an unsigned order sending the case back to the D.C. circuit court to decide “what further proceedings in that court or in the District Court are necessary and appropriate for the full and final disposition of the case in light of . . . new developments.”

Photo courtesy of the Associated Press, via the Huffington Post

The Second Circuit ruled on November 2nd that Maher Arar, a Canadian citizen who claimed he was a victim of “extraordinary rendition,” may not sue American officials for damages because Congress has not authorized such suits.

Mr. Arar was detained at Kennedy International Airport on September 26, 2002 on suspicion of ties to Al Qaeda.  After thirteen days in U.S. custody he was flown to Jordan where he was handed over to Jordanian authorities.  After being treated roughly, he was delivered to the custody of Syrian officials, who detained him for a year.  He was held in an eighteen-square-foot cell and beaten repeatedly.

Following his release in October 2003, Arar sued then-Attorney General John Ashcroft and other American officials for the injuries he suffered.  The federal district court dismissed the appeal, and a sharply divided panel of the Second Circuit affirmed.

The Second Circuit, sitting en banc, affirmed the panel’s decision.  Chief Judge Dennis Jacobs, writing for a seven-judge majority, declined to extend private rights of action against federal officials to the extraordinary rendition context.  The Supreme Court, which first permitted federal officials to be sued for constitutional violations in Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, has held that the Bivens remedy is not to be extended if “special factors counsel hesitation.”  The Second Circuit found such special factors present.  A lawsuit involving extraordinary rendition would force the court to enmesh itself in a policy that “affects diplomacy, foreign policy and the security of the nation,” areas that courts have traditionally left to the political branches.  The court will not “create, on our own, a new cause of action against officers and employees of the federal government,” but instead it is up to Congress to create such rights.

Four judges sharply dissented.  Judge Barrington Parker took issue with the majority’s view of the separation of powers.  He said that in “times of national stress and turmoil the rule of law is everything, our role is to defend the Constitution.  We do this by affording redress when government officials violate the law, even when national security is invoked as the justification.”  Judge Guido Calabresi wrote that “when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

Justice Sonia Sotomayor participated in the oral argument when she sat on the Second Circuit, but was elevated to the Supreme Court before the final decision was rendered.

On November 17th, the Court of Appeals for the Second Circuit affirmed, but remanded for re-sentencing, the conviction of Lynne Stewart for activities arising out of her representation of Omar Abdel-Rahman, the “Blind Sheikh.”

Abdel-Rahman and nine of his followers were convicted in 1995 of conspiracy to bomb several New York City landmarks.  Ms. Stewart represented Abdel-Rahman at his initial trial and continued her representation after his incarceration.  In 1997, the Bureau of Prisons initiated Special Administrative Measures (“SAMs”) forbidding Abdel-Rahman from communicating with anyone other than his legal advisors.  As part of these SAMs, Ms. Stewart was required to sign an oath that she would not facilitate contact between Abdel-Rahman and the outside world. Despite these measures, Ms. Stewart, in 2000, informed a Reuters reporter in Cairo that Abdel-Rahman had withdrawn his support from a ceasefire between the Egyptian government and Gama’a Islamiyya, the terrorist organization to which he had ties.  In addition to disseminating this information, Ms. Stewart  pretended to engage in a three-way conversation with Abdel-Rahman and her translator, Mohammed Yousry, to prevent guards from detecting the translator’s delivery of information to Abdel-Rahman.

Ms. Stewart was indicted in 2002, but the initial charges were dropped and a superseding indictment was issued in 2003.  She was convicted in 2006 and sentenced to 28 months in prison, despite a United States Sentencing Guideline range of 360 months, and was permitted to stay out on bail through her appeal.  The appeal was heard on January 29, 2008, but not decided until this month.  A time-line of the events may be found here.

Among other claims, Ms. Stewart claimed that she released the information despite the existence of the SAMs as part of her “zealous representation.”  While the trial court noted that she “abused her position as a lawyer,” the Second Circuit seemed to give her professional misconduct even greater weight, dedicating Section 3.b of the opinion to “Stewart’s Abuse of Her Status as a Member of the Bar.”  It noted:

Stewart’s actions tended ultimately and ironically to subvert the same fundamental right of which she took advantage–the constitutional right to counsel–by making it less likely that other incarcerated persons will have the same level of access to counsel that her client was given. . . .  The district court did not address whether Stewart “abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense,” meriting a two-level enhancement under the Guidelines. . . .  The court did not . . . explain how and to what extent the sentence reflected the seriousness of the crimes of conviction in light of the fact that Stewart was engaged as a member of the bar when she committed them.  The question therefore remains whether, because she was an experienced and dedicated lawyer acting as such when she broke the law in the manner that she did, her punishment should have been greater than it was.

Some question the timing of this decision, coming shortly after the announcement that Khalid Sheikh Muhammad would receive a civilian trial in New York City.  They fear that these kinds of actions against attorneys who represent terrorism defendants may chill their ability to represent their clients.  Others have used this case to highlight the dangers associated with granting civilian trials to terrorist suspects in the first place.

On October 29, 2009, Harvard Law School Prof. Alan Dershowitz appeared before the International Criminal Tribunal for the former Yugoslavia (ICTY) to appeal the conviction of Johan Tarculovski.  Tarculovski was charged with individual criminal responsibility (Art. 7 §1 ICTY Statute), as well as superior hierarchical responsibility (Art. 7 § 3 ICTY Statute), on three counts of violations of the laws and customs of war:  murder, wanton destruction, and inhumane treatment.

The circumstances that gave rise to those charges took place during Tarculovski’s time as part of Macedonian President Boris Trajkovski’s security detail.  The following account, based on a summary of the events prepared by Human Rights Watch about a month after the incident took place, is the most detailed that has surfaced.

In the aftermath of a landmine explosion that killed eight government soldiers, Macedonian police forces sealed off and assaulted the nearby ethnic-Albanian town of Ljuboten.  The Macedonian authorities suspected that the Albanian National Liberation Army (NLA) had established a stronghold in the town.  Considered a terrorist group by the Macedonian government, the NLA had a base near the town and had met international journalists in Ljuboten on several occasions.  For two days beginning on August 10, 2001, the Macedonian army and police carried out house-to-house attacks.  They summarily executed two civilians and killed three others who were attempting to flee the scene.  Over one hundred ethnic-Albanian men were arrested, many of whom were beaten while in custody.

Tarculovski claims that he was simply monitoring the situation on the ground on behalf of President Trajkovski.  In the original trial, the ICTY found Tarculovski guilty of directing and taking part in the criminal aspects of the operations and sentenced him to twelve years in prison.  At that same trial, the ICTY also tried former Macedonian Interior Minister Ljube Boskoski, who was also physically present in Ljuboten at the time of the assault.  Tarculovski and Boskoski were the only people indicted by the ICTY in relation to the 2001 conflict.  Boskoski was acquitted of all charges.

Professor Dershowitz emphasized that this made Tarculovski the “only man in prison” as a result of the conflict.  Dershowitz suggested that this indicated that “[the incident] was a crime that should be punished in Macedonia.  It should be investigated locally.”  The irregular nature of the NLA further muddles the case.  The NLA’s members sometimes wore uniforms and sometimes did not, a fact the Macedonian authorities cite in labeling them “terrorists.”

Professor Dershowitz’s argument brings up significant questions regarding the fine line between ordinary criminal acts and war crimes, particularly in the context of an ill-defined, irregular conflict whose categorization fluctuates between counterterrorism, counterinsurgency, or regular police work depending on which group’s website one looks at.  Given the highly emotional nature of most debates about counterterrorist and counterinsurgency operations by Israel or the United States, cases involving the former Yugoslavia give all sides of the ideological debate over war crimes a fairly neutral background against which to test their theories.  Would trying Macedonian offenders in the fledgling Macedonian court system really lead to justice?  Should there be a broader, more permissive notion of due process in the context of a counterterrorist operation?  The pending litigation may point towards some answers.