Crimes, War Crimes and the War on Terror

[jmm99]

Thank you, sw, for the citation to The Paquete Habana, 175 U.S. 677 (1900). This is one of a number of cases in which SCOTUS had to deal with the extraterritorial reach of the Constitution and international law in the context of US global expansion and the Spanish-American War. Those "Insular Cases" have a good deal of relevance to present-day "Small Wars" issues.

From the Paquete Habana syllabus:

Under the Act of Congress of March 3, 1891, c. 517, this Court has jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the amount in dispute and without any certificate of the district judge as to the importance of the particular case.

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

which makes a number of points:

1. The Federal courts were given jurisdiction in prize cases by statute (which was within their constitutional mandate).

2. The international law issues must be "be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination." This ties into point 1.

3. "Customary international law" comes into play only "where there is no treaty and no controlling executive or legislative act or judicial decision." In short, it is a last resort in arriving at a rule of decision in a case where the court has jurisdiction.

4. In making that determination, the court looks, "as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." Modern punditry is filled with "what the law ought to be".

The Paquete Court embarked on a multipage historical quest (starting in 1403) to determine what "customary international law" was concerning fishing vessels seized in prize cases. Nonetheless, three members of the Court differed and concluded that "customary international law" in this area was neither "customary" nor "authoritative":

In is needless to review the speculations and repetitions of the writers on international law. Ortolan, De Boeck, and others admit that the custom relied on as consecrating the immunity is not so general as to create an absolute international rule; Heffter, Calvo, and others are to the contrary. Their lucubrations may be persuasive, but not authoritative.

In my judgment, the rule is that exemption from the rigors of war is in the control of the Executive. He is bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether such immunity as may have been usually extended.
[Page 175 U. S. 721]
Exemptions may be designated in advance or granted according to circumstances, but carrying on war involves the infliction of the hardships of war, at least to the extent that the seizure or destruction of enemy's property on sea need not be specifically authorized in order to be accomplished.

The lesson to be learned is that incorporation of "customary international law" is best done by definitive joint executive and congressional action. In that, I join Judges Hogan and Brown.

Regards

Mike

[jmm99]

Abdulmutallab has been indicted on six counts:

1) attempted use of a weapon of mass destruction;

2) attempted murder within an aircraft in the jurisdiction of the US;

3) willful attempt to destroy an aircraft within the jurisdiction of the US;

4) willfully placing a destructive device on an aircraft, which was likely to endanger safety of such aircraft;

5) possession of a firearm/destructive in furtherance of a crime of violence; and

6) possession of a firearm/ destructive in furtherance of a crime of violence.

No link to AQ or any other organization is alleged in the indictment.

[davidbfpo]

From the BBC an interview whilst commuting:

Matthew G Olsen heads the US task force deciding the fate of the remaining detainees at Guantanamo Bay.
While hopes of meeting President Barack Obama's January 2010 deadline for closing the camp have ended, Mr Olsen and other US officials have been meeting at secure locations to try to resolve the outstanding cases.

The link:http://news.bbc.co.uk/1/hi/world/americas/8454351.stm

Nothing startling, but all in one place.

[davidbfpo]

Post No.411 (Pg. 21) refers to FBI action in Detroit back in September '09, with a raid on a 'radical' mosque, with one local Muslim leader shot dead, with charges following which aroused - from this armchair - little interest.

Now a local paper has a lengthy article, under the headline 'Deadly FBI raid in Dearborn prompts concern over informants' and I cite in parts:

The story of Jabril's alleged infiltration offers a rare look into the use of FBI informants in Muslim-American communities in the aftermath of Sept. 11, 2001. Members of the Detroit mosque say they believe Jabril was a key undercover informant in helping the FBI build a case against Abdullah and his followers.

Muslim advocates say there's a growing problem of improper use of informants, particularly in houses of worship. Some accuse the informant of luring Abdullah to his death in the fatal shooting, which has raised questions about excessive force.

Abdullah and his followers were not charged with any acts of terrorism. The charges against the 11 men arrested include dealing in stolen goods such as laptops and fur coats, firearms violations and tampering with vehicle identification numbers. The criminal complaint, however, highlights the radical views of the group.

[davidbfpo]

A long story in The Guardian, with this opener:

For nearly six years, British resident Omar Deghayes was imprisoned in Guantánamo and subjected to such brutal torture that he lost the sight in one eye. But far from being broken, he fought back to retain his dignity and his sanity

Within is this:

The British also accused him of teaching people to fight in terrorist training camps in Chechnya, and claimed they had secret video evidence.

Deghayes had never been to Chechnya, and thought all these allegations laughable. Only later did he discover through Clive Stafford Smith, director of the human rights charity Reprieve, that his apparent appearance in an Islamic terrorist training video in Chechnya was the crucial evidence in a flimsy case against him. The authorities refused to give Stafford Smith, who campaigned for Guantánamo detainees, a copy of this videotape, but he eventually obtained one through the BBC.

It was, says the Reprieve director, an obvious case of mistaken identity: the person depicted lacked Deghayes' small childhood scar on his face. *Stafford Smith was able to show that the videotape was of a completely different person, actually a Chechnyan rebel called Abu Walid, who was dead.(My emphasis) "This was typical of the whole Guantánamo experience," says Stafford Smith. "They said they had evidence and they wouldn't let you see it. Then when you did, it was incorrect.

Link:http://www.guardian.co.uk/world/2010...ive-guantanamo

[jmm99]

The Detroit Free Press story (all in one full page) is here.

Let's see what everyone says when the case is tried. Bet: they plea bargain out to the non-terrorist crimes. And, of course, since terrorism was not charged, none of them are terrorists. Right.

And, in the future, all FBI informants must announce: "I am an FBI informant looking for terrorists. Please direct me to the nearest terrorist. Oh, you don't know any terrorists. That's great. Now we can all go out and get a Stroh's. Whoops, I forgot; that alchohol - let's have Dr Peppers instead."

Mike

[davidbfpo]

I've been distracted and so slightly delayed appearance here:

The UK Supreme Court has ruled that special Treasury orders that freeze the assets of terror suspects are unlawful. The judges at the UK's highest court said the government had exceeded its powers by controlling the finances of five suspects.

From:http://news.bbc.co.uk/1/hi/uk/8482630.stm

From Scotland, which has a different legal system to England & Wales:

THE man dubbed Scotland's first Islamist terrorist had his conviction quashed yesterday after judges ruled he had suffered a miscarriage of justice.

From:http://www.scotsman.com/news/39First...d-a.6028500.jp

An arrest:

A 30-year-old man has been arrested in Birmingham under the Terrorism Act, according to West Midlands police. The man, from Sparkhill, was arrested on suspicion of possessing material likely to be of use to a terrorist and of distributing terrorist publications.

From: http://news.bbc.co.uk/1/hi/uk/8480138.stm

And more time for police to question him:

Police have been given more time to question a man arrested in Birmingham on Tuesday under the Terrorism Act.

From:http://news.bbc.co.uk/1/hi/uk/8484598.stm

[davidbfpo]

The European court has ruled that the counter-terrorism stop & search powers for the police, referred to as S.44 TACT, are illegal and HMG is considering their reaction: http://news.bbc.co.uk/1/hi/uk/8454206.stm

The national CT police co-ordinator is cited in this article, notably on the use of 'profiling':

Britain’s most senior counter terrorism officer has disclosed that police must use profiling tactics to stop suspected terrorists.

From:http://www.telegraph.co.uk/news/ukne...on-flight.html

Read alongside a columnist piece 'You cannot stop the terrorist threat if you are unable to profile it': http://www.telegraph.co.uk/comment/c...rofile-it.html

[davidbfpo]

This time in Scotland, which has a different legal system to the rest of us; a complex case and an Appeal Court has quashed a conviction; web link:
http://news.bbc.co.uk/1/hi/scotland/...al/8504952.stm

A man branded a "wannabe suicide bomber" by prosecutors will not face a retrial on terrorism charges....The most serious charge related to the possession of articles that gave rise to "reasonable suspicion" they were connected to terrorism. His conviction on that allegation resulted in a six-year prison term.

In a broader commentary:

The quashing of one of Mohammed Atif Siddique's terrorism convictions poses tough questions about Section 57 of the 2000 Terrorism Act - the offence of possessing "articles" for terrorist purposes. The offence emerged from the lessons of Northern Ireland where detectives sometimes caught paramilitaries with DIY bomb parts - but no actual bomb or plot. In the age of al-Qaeda inspired extremism, Section 57 has been used against suspects found with extremist material on their computers.

Two years ago the English Court of Appeal criticised the vague phraseology of the offence as it cleared five students in very similar circumstances to Mohammed Atif Siddique.

All these young men say they were criminalised for what they had thought, rather than what they did. And Edinburgh and London's appeal judges say juries need to be given clearer guidance on when the line between thoughts and deeds is crossed.

Alas HMG is not in the mood or mode to listen and respond. Other sections of the CT law are much criticised, partly for their wording and also for their impact on innocent parties.

[davidbfpo]

The Binyam Mohammed case has appeared here many times and today the Appeal Court has issued a judgement regarding the government's refusal to disclose US intelligence documents (in fact seven paragraphs):

BBC:http://news.bbc.co.uk/1/hi/uk/8507852.stm
Daily Telegraph:http://www.telegraph.co.uk/news/ukne...ay-judges.html
FCO:http://www.fco.gov.uk/en/news/latest...ws&id=21722320

In the radio reports and on the FCO website reference has been made to a US court decision that led to the documents being disclosed - "so the pass had been sold". Secondly that the judgement upheld the principle of 'control' that the UK could not release intelligence documents provided by the USA.

The BBC:

BBC home affairs reporter Dominic Casciani said the seven-paragraph summary released by the court provides details of what London learnt about Mr Mohamed's treatment in 2002, following his detention in Pakistan. At the time he was being held by Pakistani interrogators at the behest of the US, who suspected him of having received firearms and explosives training from al-Qaeda in Afghanistan. The summary says that Mr Mohamed was intentionally subjected to continuous sleep deprivation during his initial period of captivity. Along with the sleep deprivation, it says the interrogators subjected him to threats and inducements, including playing on his fears that he would be passed on to another country.

Perhaps JMM can explain if "the pass was sold"?

There remains a UK police investigation into whether the intelligence officers involved were complicit with inhuman treatment / torture.

[jmm99]

although, since there were no bidders over here, the "pass" wasn't sold, but more put up as a free-will offering.

The US case is 12/16/2009 2005cv1347-253 Civil Action No. 2005-1347 (MOHAMMED et al v. BUSH et al) Doc No. 253 (order) by Judge Gladys Kessler (81 page opinion), which I reported back in December in this post, DC Habeas Cases - Update.

The bottom line is that Judge Kessler ordered the release of Farhi Saeed Bin Mohammed. The government's major evidence against that Mohammed was his presence at an AQ training camp, established by statements from Binyam Mohamed. The opinion devotes many pages to those statements (pp. 40-70), which are probably the longest judicial findings of facts re: Binyam Mohamed so far filed. The Binyam Mohamed evidence was excluded based on the Fruit of the Poisonous Tree doctrine.

A summary of the torture allegations is at pp.48-57. The details are included in several joint exhibits, which are part of the case file. Note (at p.57):

The Government does not challenge or deny the accuracy of Binyam Mohamed's story of brutal treatment.

As example of same (pp.52-53):

After this exchange, Marwan had Binyam Mohamed tied to a wall. Three men stripped him of his clothes with "some kind of doctor's scalpel." The witness claims he feared rape, electrocution, or castration. rd. at 12. His captors cut one side of his chest with the scalpel, and then the other. One of the men then "took [Binyam Mohamed's] penis in his hand and began to make cuts" with the scalpel as Marwan looked on. Id. at 13. They cut "allover [his] private parts" while Binyam Mohamed screamed. He estimates that they cut him 20-30 times over two hours; "[t]here was blood all over." Id. He was given a cream from some doctors. This precise conduct continued about once per month for the 18 months that he was in Morocco. ~ at 12-13; 16 (describing "routine" cuttings and use of liquids to burn him). He reports that a guard told him that the purpose of the scalpel treatment was to "degrade" him, so that when he left, he'd "have these scars and [he'd] never forget. So [he'd] always fear doing anything but what the US wants." Id. at 13.

Overall, there seems to have been little Brit involvement in the rough stuff (based on Judge Kessler's 40 pages).

Regards

Mike

[davidbfpo]

The Appeal Court judgement in the Binyam Mohammed case has taken both expected and unexpected routes. Criticism of the judges for taking decisions on policy that should be the executive's or Crown; the impact on the much prized UK-US 'Special Relationship' in the intelligence sharing arena and the revelation that the senior Crown lawyer wrote a letter challenged parts of the draft, written judgement as being too critical of the Security Service (MI5).

The Guardian (the most extensive report): http://www.guardian.co.uk/world/2010...m-mohamed-case
BBC:http://news.bbc.co.uk/1/hi/uk/8509787.stm
DT:http://www.telegraph.co.uk/news/worl...-warns-US.html

Whatever the "smoke" generated, notably by the Foreign Secretary in his parliamentary statement yesterday, the case has been over the release in the UK to a court seven, short paragraphs summarising Binyam Mohammed's treatment written by the CIA for MI5 use before they interrogated Binyam at G-Bay were pre-empted as JMM reports in the release of pages of evidence in a US court case.

Some here will be happy to exclude the courts from a role in such cases, others will use the case as an opportunity to "beat" the government, especially over the alleged official complicity in torture; meantime others will challenge whether 'trust & confidence' in the security services, government and UK society has been weakened by all the revelations.

[jmm99]

The "seven paragraphs" (see below) seem more a summary by the judges of a series of reports, with editorial comments by the judges (esp. the last two paragraphs).

From the Telegraph:

Here are the seven paragraphs from the High Court judgments in full:

- It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer.

- It was reported that at some stage during that further interview process by the United States authorities, BM (Binyam Mohamed) had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

-It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and ''disappearing'' were played upon.

-It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews.

- It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.

- We regret to have to conclude that the reports provided to the SyS (security services) made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

-The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities.

The controversy certainly does not lie in the content - compare Judge Kessler's findings of fact (post # 471).

The controversy hinges on the fact that the underlying report(s) from USG to the Brits was classified and still remains so. Apparently, the British judicial system (at least in this type of case) has no process to protect classified evidence.

Rather than releasing Binyam, he ought to have been tried before the military commission which was in the process of doing just that (1 Sep 2008). But, because that case looked "messy", the decision was made to release the man. Much of the evidence re: Binyam was open-source at that time - see Binyam Mohamed (1 Sep 2008).

Regards

Mike

[davidbfpo]

The Kings of War blogsite weighs in: http://kingsofwar.org.uk/2010/02/ooo...+(Kings+of+War)

JMM,

Yes, I understand the 'seven paragraphs' to be written by officials, not judges, as a summary of the secret papers and the papers themselves remained secret. Why HMG went 'all the way' to stop the summary eludes me.

[davidbfpo]

This appeared yesterday in The Daily Telegraph, but was not linked last night: 'Jonathan Evans: conspiracy theories aid Britain's enemies MI5 was not involved in any torture 'cover-up’, says its director general, Jonathan Evans:http://Jonathan Evans: conspiracy theories aid Britain's enemies MI5 was not involved in any torture 'cover-up’, says its director general, Jonathan Evans.

Worth reading IMHO and how the public reacts is unclear. Torture is an issue that has a habit of lingering on and causing concern - not I agree on a mass basis or 'the man on the Clapham omnibus' being greatly concerned.

JMM,

Note Jonathan Evans says:

...the paragraphs were received on intelligence channels and provided on the basis that they would not be disclosed...

[jmm99]

to The Daily Telegraph and Jonathan Evans, Jonathan Evans: conspiracy theories aid Britain's enemies.

And, indeed, Evans says this:

The “seven paragraphs” now published are, in fact, less politically explosive than some commentators had imagined. The Government would not have objected to their publication in themselves, despite the unacceptable actions they describe. But the appeal was necessary because the paragraphs were received on intelligence channels and provided on the basis that they would not be disclosed.

The United States does not have to share intelligence with us. Nor do other countries. The US government has expressed its deep disappointment at the publication of the paragraphs and has said that the judgment will be factored into its decision-making in future. We must hope, for our safety and security, that this does not make it less ready to share intelligence with us.

In our (US) jargon, the seven paragraphs were classified and had to be treated as all classified information is treated.

What that means in the context of US legal actions is very clear (as any number of the DC habeas cases establish in their divisions between the classified and non-classified case records, and their public and sealed opinions). A party generally has a right to discover the relevant evidence (inculpatory and exculpatory) in the government's possession.

In the case of classified information, that requirement is satisfied by allowing view of the evidence (subject to various safeguards) to the party's attorney who has the necessary security clearence to view the evidence. That requirement does not mean that the evidence can be made public - and published in The Times or in a public judicial opinion.

So, the problem with the UK process, so far as the US was concerned, was public disclosure of classified information. Since the substance of that classified information already was open-source, one can question whether the seven paragraphs ought to have remained classified. Something of a tail wagging the dog situation.

Regards

Mike

[davidbfpo]

A very long (on a screen) academic paperhttp://www6.lexisnexis.com/publisher...366&isRss=true

This is the Abstract:

This article explores the symbiotic relationship between organizedcrime and terrorist organizations including when there is evidence that such relationships have become indistinguishable. The authors examine the symbiotic relationships detected within the United States ofAmerica and other areas of the world. They focus on cigarette diversion, narcotics, and illegal immigrant smuggling. Specific groups suchas Hezbollah, the Irish Republican Army, and other crime-terror organizations are used to illustrate these. This article outlines tools that can be used to identify crime-terror overlaps. Recommendations derived from the importance of using multi-agency working groups coupled with the emerging importance of forensic examiners in the fight against the crime-terror nexus are offered.

It features:

Drawing on a military intelligence method called Intelligence Preparation of the Battlefield (IPB), the proposed method, Preparation of the Investigation Environment (PIE), allows investigators to identify the areas where terrorism and organized crime aremost likely to interact.

On my first read useful, but 'skates" over detailing PIE.

[davidbfpo]

I have seen this report before, but it took time to trace and even if nine years old is still relevant IMHO.

An FBI team sent to Kabul in 2001 to fingerprint all arrested insurgents made a surprising discovery: hundreds of arrested people in Afghanistan who were supposed to be local fighters (1% of the total) were already in the FBI's database for arrests ... in the US. Many arrests were for drunken driving, passing bad checks and traffic violations. That means that there were probably a far higher percentage of arrested ‘insurgents’ who went through the US without being arrested, and that the already arrested guys had ‘normal’ delinquency, not related to Islam.

From:Ellen Nakashima, “Post-9/11 Dragnet Turns Up Surprises: Biometrics Link Foreign Detainees to Arrests in U.S.”, Washington Post, 6 July 2008.http://www.washingtonpost.com/wp-dyn...070501831.html

I've not seen similar reports on other nations discovering and proving this, so if anyone knows of similar please let me know.

[Boondoggle]

The recent court decision in Britain also brings up an issue much closer to home. When the US shares information, not classified, with state and local law enforcement, it loses its protection under the FOIA and falls under the state "sunshine laws" of the particular jurisdiction. With much more aggresive use of those laws, it most definitely will affect the way the federal government can share information with state and locals. You can classify things if necessary, but that closes off a large group of people from access to the information and for those who need to see it, may make access expense, and time consuming in acquiring the necessary clearances.

[davidbfpo]

Boondongle,

In the UK the product of the Security Service (MI5) and other official bodies in CT plus other areas comes with a notice saying ownership remains with the originator, disclosure other than to those specified needs to be referred back to the originator. IIRC MI5 is specifically exempt from FOI too. To date this appears to have worked.

Another body involved in policing (and CT) the Association of Chief Police Officers (ACPO) has somehow gained a specific exemption from FOI laws; a notice to that effect etc is all their documents. The ACPO statement is a little odd as it is a registered private company, although funded largely by public money.

A distinction needs to be made between 'information', 'intelligence' and any assessment or conclusions reached. IMHO it is the later which gets more protection, for many reasons including CYA.