Category Archives: terrorism

Failed U.S. leadership in foreign policy

Ali Musa DaqduqUnfortunately, examples of failed U.S. leadership in foreign policy continue to increase in both frequency and gravity:

  1. We have failed to stop Iran’s nuclear-weapons program.
  2. We have failed to punish Tehran for facilitating the deaths of American soldiers
  3. We have failed to punish them for plotting to assassinate the Saudi ambassador to Washington.

In the aftermath of September 11, 2012, an even more tragic failure,the Obama administration failed to have Iraq extradite Hezbollah terrorist Ali Musa Daqduq to the U.S. for trial. The president continues to reinforce the impression of American impotence. In December 2011, nearly a year ago, we predicted that the failure to extradite Daqduq would “have serious repercussions, measured in diplomatic defeats and lost lives.”

Did the fact that an Iraqi court cleared Daqduq of all charges embolden the attackers on Benghazi last month?

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Virginia detainee law is dangerously unconstitutional

(Published in The Washington Post, April 27, 2012)

The United States has just lost a key ally in the fight against al-Qaeda terrorists: the residents of Virginia, and state employees in particular.

Virginia’s legislature recently passed a bill that forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen.

The bill, which Gov. Robert F. McDonnell (R) signed Wednesday, is unconstitutional. It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores.

The basis of this legislation in Virginia and 11 other states (Arizona, Kansas, Maine, Maryland, Missouri, Oklahoma, Rhode Island, Tennessee, Utah, Washington and West Virginia) is a gross misunderstanding or intentional misreading of the detainee provisions in the 2011 National Defense Authorization Act (NDAA).

Some members of the tea party and the Tenth Amendment Center, a conservative group devoted to states’ rights, have joined with the American Civil Liberties Union to monger fear over federal detention authority. Under their contorted reading of the act, federal law requires all U.S. citizens suspected of terrorism to be held in military custody and strips them of all constitutional rights.

But although the NDAA describes military custody as the primary policy option for dealing with captured enemy combatants, the president retains, as is constitutionally proper, discretion to utilize the civilian justice and penal systems. In fact, the NDAA did not change settled law at all. It says that “nothing in this section shall be construed to affect existing law” related to the detention of U.S. citizens captured or arrested in the United States. Furthermore, under the Supreme Court’s post-Sept. 11 rulings, especially Hamdi v. Rumsfeld andBoumediene v. Bush , enemy combatants (regardless of citizenship) may be held for the duration of the hostilities, but anyone in military custody, whether in the United States or Guantanamo, is able to exercise habeas corpus rights to challenge the detention.

Despite these facts, some continue to fight what they see as a federal leviathan that acts extra-constitutionally all the time. But the federal government has the primary role in national security. Although comprehensive detention legislation has proved elusive, the language in the NDAA reflects the considered and constitutionally binding judgment of Congress and the president on an issue over which the federal government properly holds sway.

Since Sept. 11, 2001, al-Qaeda and its affiliates have recruited terrorists in the United States. Under the law of armed conflict — which predates the 2001 attacks — enemy combatants, regardless of citizenship, may be detained for the duration of the hostilities.

Virginia’s new law sends mixed messages to state employees, especially law enforcement officials. Imagine a state trooper pulling over a speeder and finding out through an ID check that the FBI has an alert for the driver as a suspected al-Qaeda operative. What should the trooper do if he knows or suspects the driver is a U.S. citizen? Do his duty and detain the suspect, which violates Virginia law? Or simply write the speeding ticket and send the driver on his way, not telling the FBI or the military, consequences be damned?

Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda, since 9/11 it has funneled billions of dollars to all states that require fulsome cooperation from state law enforcement authorities. Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control. For these reasons, Virginia’s legislation violates the federal law.

Beyond these practical concerns, Virginia’s legislation, especially if followed by more states, sends a powerful message that delegitimizes not just the military detention of captured enemy combatants but also the entire laws-of-war architecture. Legitimacy of government policies matters a great deal in our democracy. Unfortunately, it already was heavily battered, primarily by the left, during the George W. Bush administration.

The tea party members who are pushing for these state actions may not know that the Obama administration has, after some initial equivocation, endorsed the laws-of-war paradigm and has retained most of the Bush administration’s policies. This extremely positive development provides much-needed bipartisanship in this key area of national policy.

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

Virginia’s new law sends mixed messages to state employees, especially law enforcement officials. Imagine a state trooper pulling over a speeder and finding out through an ID check that the FBI has an alert for the driver as a suspected al-Qaeda operative. What should the trooper do if he knows or suspects the driver is a U.S. citizen? Do his duty and detain the suspect, which violates Virginia law? Or simply write the speeding ticket and send the driver on his way, not telling the FBI or the military, consequences be damned?

Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda, since 9/11 it has funneled billions of dollars to all states that require fulsome cooperation from state law enforcement authorities. Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control. For these reasons, Virginia’s legislation violates the federal law.

Beyond these practical concerns, Virginia’s legislation, especially if followed by more states, sends a powerful message that delegitimizes not just the military detention of captured enemy combatants but also the entire laws-of-war architecture. Legitimacy of government policies matters a great deal in our democracy. Unfortunately, it already was heavily battered, primarily by the left, during the George W. Bush administration.

The tea party members who are pushing for these state actions may not know that the Obama administration has, after some initial equivocation, endorsed the laws-of-war paradigm and has retained most of the Bush administration’s policies. This extremely positive development provides much-needed bipartisanship in this key area of national policy.

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

David B. Rivkin Jr. is co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies and a partner at Baker Hostetler. He served in the Justice Department during the Reagan and George H.W. Bush administrations and has represented the 26 states that have challenged the constitutionality of the 2010 Affordable Care Act. Charles D. Stimson, senior legal fellow at the Heritage Foundation, was a deputy assistant secretary for detainee affairs at the Defense Department during the George W. Bush administration.

Source: http://www.washingtonpost.com/opinions/virginia-detainee-law-is-dangerously-unconstitutional/2012/04/26/gIQANb8zjT_story.html

‘Lawfare’ loses big

The ACLU loses its nasty suit against former defense officials.

By The Wall Street Journal 

(published January 28, 2012)

The guerrilla legal campaign against national security suffered a big defeat this week, and the good news deserves more attention. The victory for legal sanity came Monday when the Fourth Circuit Court of Appeals upheld a lower court decision to toss out a suit brought by aspiring terrorist Jose Padilla against a slew of Bush Administration officials.

Readers may remember that Padilla was arrested in 2002 for plotting to set off a dirty bomb on U.S. soil. He was detained as an enemy combatant, convicted in a Miami court and sentenced to 17 years in prison. But Padilla has been adopted as a legal mascot by the ACLU and the National Litigation Project at Yale Law School, which have sued far and wide alleging mistreatment and lack of due process.

Padilla may in fact have had more due process than any defendant in history. His case has been ruled on by no fewer than 10 civilian courts, and as a prisoner in the Navy brig in Charleston, South Carolina from 2002 to 2006 he received the benefit of protections under the highly disciplined U.S. Code of Military Justice. Your average bank robber should be so lucky.

But the lawyers suing for Padilla aren’t interested in justice. They’re practicing “lawfare,” which is an effort to undermine the war on terror by making U.S. officials afraid to pursue it for fear of personal liability.

The ACLU and the rest of the legal left have failed to persuade several Congresses and two Administrations to agree to their anti-antiterror policies. So instead they’re suing former officials in civilian court to harass them and damage their reputations. It’s shameful stuff, and if it succeeds it would have the effect of making Pentagon officials look over their shoulder at potential lawsuits every time they had to make a difficult military or interrogation decision.

In Lebron v. Rumsfeld et al., the ACLU sued under the Supreme Court’s 1971 Bivens decision, which has been interpreted as creating a right of action against the federal government. Their targets included a retinue of Pentagon officials, starting with former Secretary of Defense Donald Rumsfeld and going down to the Navy brig commander where Padilla was held. Mr. Rumsfeld doesn’t have to worry about getting another job, but the ACLU wants to make lower-level officials politically radioactive so they have a difficult time getting promoted or working in any influential position.

The good news is that the Fourth Circuit’s three-judge panel saw this for what it was and unanimously rejected the claims. In his 39-page opinion, the influential Judge J. Harvie Wilkinson wrote that the Constitution gives authority over military affairs to Congress and to the President as Commander in Chief, but it never created a similar role for the courts.

“It takes little enough imagination,” Judge Wilkinson wrote, “to understand that a judicially devised damages action would expose past executive deliberations . . . [and] would affect future discussions as well, shadowed as they might be by the thought that those involved would face prolonged civil litigation and potential personal liability.”

The decision is especially notable because one of the three judges is Clinton appointee Diana Motz, who has been a skeptic of the Bush Administration’s detainee policies and has dissented from her colleagues in cases like 2003’s Hamdi v. Rumsfeld.

The ACLU may appeal to all of the Fourth Circuit judges, but Judge Wilkinson’s ruling is comprehensive enough that an appeal is unlikely to prevail. The judges deserve credit for understanding that the Constitution gave war powers to the political branches, not to courts. The country will be safer for it.

Source: http://online.wsj.com/article/SB10001424052970203718504577181191271527180.html?mod=WSJ_Opinion_AboveLEFTTop

ICYMI: David Rivkin debates how the U.S. treats its terror suspects

 

Constitutional defender and appellate attorney David Rivkin debates Vincent Warren of the Center for Constitutional Rights on the tenth anniversary of Guantanamo, how the U.S. treats its terror suspects, the U.S. Justice paradigm, and current legislation. “For the first time Congress has explicitly put its stamp of approval on what here to for has been done either based upon indirect congressional support and authorization to use military force, executive branch practices and judicial decisions.” – David Rivkin on not seeing the legislation as “new.”

For more information, visit http://www.DavidRivkin.com

Source Link: David Rivkin debates how the U.S. treats its terror suspects

Obama and the Hezbollah terrorist

In Jan. 2007, Ali Musa Daqduq helped kill five Americans in Iraq. He may soon be released into Iranian custody.

By DAVID B. RIVKIN, JR. And CHARLES D. STIMSON

Call it the triumph of ideology over national interest and honor. Having dithered for nearly three years, the Obama administration has only a few weeks to bring to justice a Hezbollah terrorist who slaughtered five U.S. soldiers in Iraq in 2007. Unfortunately, it appears more likely that Ali Musa Daqduq will instead be transferred to Iran, to a hero’s welcome.

In the early evening of Jan. 20, 2007, in the city of Karbala, south of Baghdad, five black SUVs approached the location of a regular meeting between U.S. and Iraqi military officers. Inside the vehicles, which mimicked U.S. transports (to avoid heightened scrutiny), were a dozen individuals dressed in U.S. military uniforms and bearing U.S. weapons. Their drivers spoke English.

Upon reaching their target, the occupants opened fire on the Americans. One U.S. soldier was killed on the spot. Four others were kidnapped, tortured and executed.

The mastermind of this brutal attack? Ali Musa Daqduq, a Lebanese national and Hezbollah commander. U.S. forces captured him in March 2007, and, in interrogation, he allegedly provided a wealth of information on Iran’s role in fomenting, training and arming Iraqi insurgents of all stripes.

With U.S. troops set to exit Iraq at the end of December, all detainees in American custody there have been transferred to the Iraqis except for Daqduq. He is set to be turned over in a matter of weeks. Based on past experience with released detainees who were in Iranian employ, U.S. officials know that Daqduq will promptly re-emerge in Iran, shaking hands with dignitaries and leading parades, before rejoining his Hezbollah colleagues.

This outcome would be an insult to the American servicemen who have lost many comrades to insurgents such as Daqduq, who consistently failed to comply with the laws of war. Indeed, the Iraq war is the first conflict in modern history where the U.S.—having complied with the laws of war by promptly prosecuting American troops believed to have violated those laws—did not bring to justice a single one of the hundreds of captured enemy combatants who have killed Iraqi civilians, American soldiers and contractors. Impunity for war criminals debases the laws of war, violates our international legal obligations, and is inconsistent with American values.

We have already failed to stop Iran’s nuclear-weapons program. We have also failed to punish Tehran for facilitating the deaths of American soldiers, or for plotting to assassinate the Saudi ambassador to Washington. Allowing Daqduq to slip through U.S. hands would further reinforce the impression of American impotence. That will have serious repercussions, measured in diplomatic defeats and lost lives.

There is an obvious solution: Transfer Daqduq from Iraq to Guantanamo Bay to be tried by a military commission there. But this is where the Obama administration’s rigid ideology comes into play—beginning with flawed, self-defeating legalistic arguments.

A successful prosecution of Daqduq would be relatively easy. He killed American soldiers and, as an unprivileged belligerent, has no combatant immunity. Yet the administration purports to be troubled by our lack of an extradition treaty with Iraq. It also points out that the Iraqis have refused to accord the U.S. legal custody of Daqduq, although the U.S. has him in physical custody. The Iraqis, of course, are being pressured by the Iranians not to accommodate this legal-custody request.

Yet we don’t need an extradition treaty with Iraq to transfer Daqduq, a Lebanese citizen captured by American forces in a war zone. Since his capture occurred when the U.S. and other coalition members were the occupying power in Iraq, there is ample basis in existing international law for the American exercise of legal jurisdiction over him.

A more serious obstacle is the administration’s policy of eschewing military tribunals. Earlier this year, the administration considered bringing Daqduq into the U.S. to face trial in a civilian court. In response, six Republican senators wrote President Obama, warning against trying Daqduq in federal court, and urging the president to refer him to a military commission.

The administration briefly flirted with the idea of a military commission, perhaps in Charleston, S.C. or at Fort Leavenworth, Kan. That idea seems to have been dropped after a Nov. 8 Senate Judiciary Committee hearing where Republican Sen. Lindsey Graham told Attorney General Eric Holder that if the administration were to bring Daqduq to the U.S. for a civilian or military trial, “all hell would break loose.”

The administration believes that bringing anyone new, even high-value detainees, to Guantanamo is inconsistent with the goal of eventually closing the facility. This proposition is absurd, and not only because that facility remains vital and relevant to this day. It raises the question of whether administration’s detention policy is actually shaped by a crass political calculus of not antagonizing its liberal base in advance of what promises to be a difficult 2012 election.

The administration should press the Maliki government in Baghdad harder to allow the U.S. to maintain custody of Daqduq following the withdrawal of U.S. forces from Iraq. If the Iraqis still refuse, the administration should unilaterally transfer Daqduq to Guantanamo to face justice.

While the Maliki government may protest publicly, it will rejoice privately, since Daqduq’s rendition would demonstrate Washington’s resolve in the face of Tehran’s pressure. Allowing him to go unpunished is both inexcusable and dangerous.

Mr. Rivkin served in the Justice Department during the Reagan and George H.W. Bush administrations. Mr. Stimson, senior legal fellow at the Heritage Foundation, was a deputy assistant secretary for detainee affairs at the Defense Department.

Source: http://online.wsj.com/article/SB10001424052970204903804577082383203542526.html?mod=googlenews_wsj

Bill’s detainee provisions reaffirm the law of war

(from Roll Call, October 27, 2011)

By David B. Rivkin Jr. and Lee A. Casey

Gen. David Irvine’s objections to the detainee provisions in the 2012 defense budget bill miss the mark.

These provisions do not change existing U.S. counterterrorism policy, much less challenge the country’s values or character. Rather, they reaffirm measures adopted shortly after 9/11, which the Bush and Obama administrations have rightly seen fit to maintain.

In the wake of 9/11, President George W. Bush concluded that a military response to al-Qaida and its allies was in order, for the obvious reason that the civilian law enforcement system was unable to prevent those devastating attacks. Congress wholeheartedly supported Bush’s decision, adopting a specific Authorization for the Use of Military Force on Sept. 18, 2001.

The United States is, therefore, at war with al-Qaida, its allies and its supporters. U.S. operations against those groups and individuals are governed by the laws of war, which clearly permit U.S. forces to attack al-Qaida’s leadership, operatives, and others who themselves engage in or support hostilities against the United States. In addition, throughout the conflict, the United States is entitled to capture and detain such persons, without criminal charge or trial. Although these detentions may be protracted, they are not “indefinite” because they must end when the fighting does. The Supreme Court has repeatedly upheld the legality of this policy.

It is for this very reason that the 2012 defense authorization bill would reaffirm both the nature of hostilities between al-Qaida and the United States, and these basic rules. In fact, the bill makes clear that detainees’ “disposition” is governed by the law of war — including “long term detention under the law of war without trial until the end of hostilities.”

It also clarifies that U.S. citizens can be held on the same basis but only “to the extent permitted by the Constitution of the United States.”

This is no invitation to remake constitutional law, but the invocation of existing Supreme Court precedent (some dating back to the Civil War and some that are post-9/11) that clearly permits the military detention (and even trial) of citizens who have themselves engaged in hostile acts or have supported such acts to the extent that they are properly classified as “combatants” or “belligerents.”

The bill does not define all of the groups who are al-Qaeda’s “associated forces” — a practical impossibility because of the irregular nature of al-Qaeda’s own organization and its transnational jihad — but makes clear that these forces must be “engaged in hostilities against the United States or its coalition partners.”

This basic limiting factor prevents improper action against groups or individuals who merely sympathize with al-Qaida or its goals.

In no way does the defense bill “militarize our system of justice.” Rather, it makes clear that the primary U.S. response to al-Qaida is, and will remain, military.

For 10 years now, debate has raged about whether a criminal justice approach to al-Qaida would more effectively protect U.S. national interests than a military one. Those who support a law enforcement model, however, have yet to articulate an answer to the most fundamental legal and practical objection to their position: If al-Qaida is to be treated merely as another global criminal organization, then U.S. forces cannot lawfully attack it anywhere in the world.

The legal rules governing law enforcement and war are fundamentally different. Authorities can use deadly force against criminal suspects only in the most narrow circumstances and almost always as a last resort. Unless perpetrators are caught in the act, they can be arrested only on properly issued warrants, and custody of perpetrators in foreign jurisdictions must be secured through the often time-consuming processes of international judicial cooperation.

Once apprehended, criminal suspects enjoy a plethora of rights designed to even the playing field between them and their governmental accusers. Moreover, the entire criminal justice system is based on the assumption that the potential for prosecution and punishment will, for the most part, deter illegal conduct. This system is manifestly unsuited to confronting a worldwide network of zealots who are determined to make war on the United States for their own ideological and geopolitical purposes.

Certainly, terrorism prosecutions in civilian courts can, and have, made a difference in the fight against international terror. However, redefining that fight as solely a law-enforcement problem in which such proceedings are the central mechanism to “defeat” al-Qaida is a recipe for disaster. President George W. Bush and President Barack Obama have rightly chosen not to take that path. Military force, and the body of law associated with it, is the only means by which the United States can degrade al-Qaida’s capabilities and ultimately grind it out of existence.

Force also is the only means by which Washington can effectively protect the American people from future attacks by al-Qaida, its allies and supporters. Demanding that protection does not transform our country into the home of the chicken-hearted. As law and morality make clear: Civilians are not legitimate targets of attack.

The American people have a right to expect that their government will secure them from attack by armed enemies so  that they can continue to enjoy the liberties that define the nation.

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker Hostetler LLP, and served in the Justice Department during the Reagan and George H.W. Bush administrations. Rivkin is also co-chairman of the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.

Source: http://www.rollcall.com/issues/57_49/david_rivkin_lee_casey_defense_detainee_provisions_reaffirm_law_war-209805-1.html

Richmond’s Fourth Circuit is stage for next “lawfare” battle against military and national security officials

David Rivkin to present oral arguments for Donald Rumsfeld, Robert Gates, other Secretaries of Defense

Published on 25 October 2011

by Staff

(OfficialWire)

RICHMOND, VIRGINIA (USA)
OfficialWire PR News Bureau

Jose Padilla, a U.S. citizen, former gang member, and designated enemy combatant who was sentenced to 17 years in prison, is mounting an aggressive appeal. The oral arguments on October 26 in Richmond’s Fourth Circuit will strike at the heart of the Constitution.

Padilla brought a lawsuit against former Secretary of State Donald Rumsfeld and other high-ranking officials, alleging he was illegally detained and tortured in the military brig after his 2002 arrest. That suit, which has been described as “lawfare” or exacting personal and financial “flesh” from an opponent, was dismissed last February by a federal judge in Charleston, South Carolina, who ruled Padilla had no right to sue for constitutional violations.

Now Padilla’s appeal, Estela Lebron, for herself and as Mother and Next Friend of Jose Padilla vs. Donald Rumsfeld et al, will be heard in the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. In addition to the issue of “lawfare,” this appeal will seek to decide several questions related to legal rights of “enemy combatants”:

  • Whether U.S. officials are entitled to “qualified immunity” against claims that they unconstitutionally and unlawfully seized, detained, abused, and tortured a U.S. citizen on U.S. soil.
  • Whether “special factors” preclude a Bivens remedy (a Bivens claim involves whether an individual alleging a Fourth Amendment violation, such as unreasonable search and seizure, can sue the offenders under the Constitution) for the unconstitutional seizure, detention, abuse, and torture of a U.S. citizen on U.S. soil.
  • Whether the district court erred in holding that Plaintiffs lack standing to contest Jose Padilla’s ongoing designation as an “enemy combatant.”

The case is scheduled for the morning of Wednesday, Oct. 26 in the Red Room (Room 412) of the Lewis F. Powell, Jr. United States Courthouse in Richmond, beginning at 9:30 a.m. and the media is invited to attend.

Former White House lawyer, David B. Rivkin, Jr., the attorney famous for crafting the successful constitutional challenge to ObamaCare, as well as other attorneys from the law firm Baker Hostetler, will be in Richmond representing Mr. Rumsfeld and is available after the hearing for interviews.

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Source: http://www.officialwire.com/main.php?action=posted_news&rid=304009