Tuesday, November 09, 2010

Where'd the Rule of Law Go?

By William Fisher

Lawyers for the administration of U.S. President Barack Obama told a federal judge yesterday that the government has authority to kill American citizens whom the executive branch has unilaterally determined pose a threat to national security.

That claim came in federal court in Washington, D.C., in response to a lawsuit brought by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR). The two human rights legal advocacy organizations contend that the administration's so-called “targeted killing authority” violates the Constitution and international law.

CCR attorney Pardiss Kebriae told IPS, "The full contours of the government's position would allow the executive unreviewable authority to target and kill any US citizen it deems a suspect of terrorism anywhere. As the government would have it, while non-citizens detained at Guantanamo Bay can challenge the deprivation of their liberty by the United States, a US citizen could not challenge an impending deprivation of his life by his own government."

"The Supreme Court has repeatedly rejected the government's claim to an unchecked system of global detention, and the district court should similarly reject the administration's claim here to an unchecked system of global targeted killing," she said.

The ACLU and the CCR were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government's decision to authorize the targeted killing of his son, Anwar Al-Aulaqi. The lawsuit asks the court to rule that, “outside the context of armed conflict, the government can carry out the targeted killing of an American citizen only as a last resort to address an imminent threat to life or physical safety.”

Anwar Al-Aulaqi, who was born in Las Cruces, New Mexico, and has dual U.S. and Yemeni citizenship, is a firebrand extremist Imam, who has been accused by government officials and in the press of using his sermons and the Internet to recruit jihadists. He is thought to be in hiding in Yemen.

The lawsuit also asks the court to “order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.”

"If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state," said Jameel Jaffer, Deputy Legal Director of the ACLU, who presented arguments in the case. "It's the government's responsibility to protect the nation from terrorist attacks, but the courts have a crucial role to play in ensuring that counterterrorism policies are consistent with the Constitution."

The government filed a brief in the case in September, claiming that the executive's targeted killing authority is a "political question" that should not be subject to judicial review. The government also asserted the "state secrets" privilege, contending that the case should be dismissed to avoid the disclosure of sensitive information.

On August 30, 2010, the CCR and the ACLU filed suit on behalf of Dr. Nasser Al-Aulaqi against President Obama, Central Intelligence Agency (CIA) Director Leon Panetta, and Defense Secretary Robert Gates, challenging their decision to authorize the targeted killing of his son, in violation of the Constitution and international law.

Plaintiff’s lawyers argue that, while the government “can legitimately use lethal force against civilians in certain circumstances outside of a judicial process, the authority contemplated by senior Obama administration officials is far broader than what the Constitution and international law allow.”

Under international human rights law, they explain, “lethal force may be used in peacetime only when there is an imminent threat of deadly attack and when lethal force is a last resort. A program in which names are added to a list though a secret bureaucratic process and remain there for months at a time plainly goes beyond the use of lethal force as a last resort to address imminent threats, and accordingly goes beyond what the Constitution and international law permit.”

They add: “Moreover, targeting individuals for killing who are suspected of crimes but have not been convicted – without oversight, due process or disclosed standards for being placed on the kill list – also poses the risk that the government will erroneously target the wrong people. Since 9/11, the U.S. government has detained thousands men as terrorists, only for courts or the government itself to discover later that the evidence was wrong or unreliable and release them.”

The DOJ declined to comment on the case.

This case is one of two related lawsuits brought by the ACLU and the CCR.
The second is against the U.S. Treasury Department (DOT) and its Office of Foreign Assets Control (OFAC) challenging the legality and constitutionality of the scheme that requires them to obtain a license in order to file a lawsuit concerning the government’s asserted authority to carry out targeted killings of individuals, including U.S. citizens, far from any battlefield.

On July 16, 2010, however, the Secretary of the Treasury labeled Anwar al-Aulaqi a “specially designated global terrorist,” which makes it a crime for lawyers to provide representation for his benefit without first seeking a license from OFAC.

The CCR and the ACLU sought a license, but after the government’s failure to grant one despite the urgency created by an outstanding authorization for Al-Aulaqi’s death, the two groups brought suit challenging the legality and constitutionality of the licensing scheme as applied to the representation they seek to provide. CCR and the ACLU have not had contact with Anwar Al-Aulaqi.

The OFAC requirements generally make it illegal to provide any service, including legal representation, to or for the benefit of an individual designated as a terrorist. A lawyer who provides legal representation for the benefit of such a person without getting special permission is subject to criminal and civil penalties.

In their lawsuit, CCR and the ACLU charge that OFAC has exceeded its authority by subjecting uncompensated legal services to a licensing requirement, and that OFAC’s regulations violate the First Amendment, the Fifth Amendment, and the principle of separation of powers. The lawsuit asks the court to invalidate the regulations and to make clear that lawyers can provide representation for the benefit of designated individuals without first seeking the government’s consent.

The OFAC case is currently pending in the U.S. District Court for the District of Columbia.

Terror Challenges and Muslim-Americans

By William Fisher

A new report on the challenges posed in the U.S. by violent extremists has found that terrorism plots by non-Muslims greatly outnumber those attempted by Muslims and that Muslim-American communities helped foil close to a third of al Qaeda-related terror plots threatening America since 9/11/01.

The report comes from the Muslim Public Affairs Council (MPAC), a not-for-profit organization advocating for the civil rights of American Muslims. The report consists largely of MPAC’s "Post-9/11 Terrorism Incident Database." Reportedly the first of its kind by a Muslim-American organization, the Database tracks plots by Muslim and non-Muslim violent extremists against the United States.

The author of the report, Alejandro J. Beutel, MPAC researcher and government liaison, told IPS, “This report demonstrates the validity of two of our guiding principles.”

“The first of these is that the choice between our rights and liberties and national security is a false choice; we can have both. The second is that law enforcement will be much more successful if it treats the American Muslim community as partners, not as adversaries.”

He added, “Because of the baseless spying by the FBI on our mosques, we are very cautious about our engagement with the Bureau.”

Key findings in the report: There were 72 total plots by domestic non-Muslim perpetrators against the United States since 9/11/01. In comparison, there have been 37 total plots by domestic and international Muslim perpetrators since 9/11/01; there are at least five incidents of non-Muslim domestic extremists possessing or attempting to possess biological, chemical or radiological weapons. One of those occurred since Obama's election. No such cases involving Muslim violent extremists have been reported since 9/11/01; evidence clearly indicates a general rise in violent extremism across ideologies.

The report says that, using Obama's election as a base measurement, since November 4, 2008 there have been 39 terror plots by non-Muslim domestic extremists. By comparison, there have been 16 plots by Muslim domestic and international extremists. Each of these cases constitutes close to 50% of all violent extremism cases since 9/11/01.

The report also found “little evidence of a rise in ideological extremism. It concluded that those involved in 13 out of the 15 post-election plots (86.7%) were engaged in ideological extremism before the vote. Of the 15, 10 (66%) were engaged in ideological extremism since 2007.

It declares that Al-Qaeda does not appear to be making new ideological gains into the American Muslim community. Instead, the data is pointing toward greater numbers of longstanding ideological extremists turning to violence.

The report asserts that Muslim communities have helped foil almost one out of every three Al Qaeda-related terror plots threatening America since 9/11/01. It says this highlights the importance of law enforcement partnering with citizens through community-oriented policing.

The report recommended that the government: Expand community-oriented policing initiatives; increase support for research on combating biased policing; expand investments in better human capital acquisitions; highlight citizen contributions to national security; and reform the fusion center process to increase coordination among law enforcement communities.

The report examined the challenges posed by violent extremists in two ways. The first was by examining the quantitative and qualitative nature of terrorism trials. Second, it looked at the number of actual and attempted attacks within the United States, including a comparative analysis of incidents involving Muslim and non-Muslim perpetrators.

The report appears amidst a resurgence of anti-Muslim sentiment in the U.S. Some of this has been triggered by the proposed building of an Islamic community center two blocks from “Ground Zero”, the site where the World Trade Centers once stood.

A number of individual and community groups, including some families of 9/11 victims, have blasted the Center idea as “a celebration of Islam.” Supporters see it as a vehicle for bringing diverse faiths closer together.

In communities throughout the U.S., there have been “copycat” campaigns to thwart mosque planning or construction.

The recent American midterm elections have also provided some candidates with platforms from which to verbally attack Muslims, including Muslim-Americans. These candidates have largely been Republicans and members of the Tea Party, on the extreme right wing of the political spectrum. While a few Democrats attempted to debunk the “all Muslims are terrorists” mantra, most remained silent.

Several recent unsuccessful terrorist plots have also contributed to heightened public anxiety – and the search for scapegoats. The so-called Times Square bomber was a home-grown terrorist who admitted attending training school in Pakistan; the “underwear bomber” who attempted to bring a passenger plane down over Detriot last Christmas day was a Nigerian believed to have been trained in Yemen. Both men are Muslims.

And the successful interception of two parcel bombs shipped as cargo from Yemen further raised the public’s level of apprehension that another terrorist attack was in the making.

The backlash takes a number of forms. For example, ordinary Muslims are experiencing renewed discrimination in the workplace. The New York Times reports that Muslim workers filed a record 803 such claims in the year ended Sept. 30, 2009. That was up 20 percent from the previous year and up nearly 60 percent from 2005, according to federal data.

The Times says the number of complaints filed since then will not be announced until January,” but Islamic groups say they have received a surge in complaints recently, suggesting that 2010’s figure will set another record.”

The federal Equal Employment Opportunity Commission has filed several lawsuits connected with anti-Muslim discrimination. It sued JBS Swift, a meatpacking company, on behalf of 160 Somali immigrants; it filed a case against Abercrombie & Fitch, the
clothing retailer, for refusing to hire a Muslim who wore a head scarf; and it sued a Four Points by Sheraton hotel in Phoenix, charging that an Iraqi immigrant was called a “camel jockey.”

Finally, MPAC and similar groups are angry and disappointed at the Federal Bureau of Investigation (FBI), which has acknowledged placing “agent provocateurs” inside mosques in attempts to root out terrorists, terrorist plots, and terrorist cells.

“We feel betrayed,” says Alejandro Beutel.