The Year in Counter-Terrorism

by JOANNE MARINER

As we reach the end of the year, it’s a good moment to look back at some of the court cases, books, and–of course–leaked diplomatic cables that marked 2010. Although we’re now approaching the tenth anniversary of the September 11 terrorist attacks, a review of the year’s counterterrorism-related publications suggests that elements of the post-September 11 world are still very much in flux.

The legal rules applicable to the targeted killings of terrorist suspects and the use of indefinite detention without trial are still being worked out in the courts. And well past the end of the Bush presidency, the debate over torture, rendition, and other “enhanced” counterterrorism practices continues.

One unfortunate constant is the military detention facility at Guantanamo, which still holds 174 prisoners, only three of whom have been convicted of any crime.

Court Cases

Al-Maqaleh v. Gates. In May, the U.S. Court of Appeals for the D.C. Circuit overturned a district court ruling that held the federal courts had jurisdiction to hear the habeas corpus petitions of a handful of detainees held at Bagram Air Base in Afghanistan. Unlike the large majority of detainees at Bagram, the petitioners in Al-Maqaleh had been arrested outside of Afghanistan, far from any battlefield, and flown to Bagram to be held indefinitely. The decision of the D.C. Circuit limits the Supreme Court’s landmark ruling in Boumediene v. Bush to detainees at Guantanamo, inviting the government to make Bagram–or some other overseas prison–into another, more lawless Guantanamo.

Holder v. Humanitarian Law Project. In a 6-3 decision handed down in June, the Supreme Court held that speech that constitutes “material support” of a terrorist group could be banned without violating the Constitution. The case involved conflict-resolution and humanitarian activists who wanted to provide advice and training on international law and related topics to the Tamil Tigers and a Turkish militant group. Chief Justice Roberts wrote the majority opinion in the case, while Justice Breyer, joined by Justices Ginsburg and Sotomayor, penned a strongly-felt dissent. The majority opinion instructed the courts to defer to the executive branch on these issues, stating “[w]hen it comes to collecting evidence and drawing factual inferences in this area, the lack of competence on the part of the courts is marked ?and respect for the Government’s conclusions is appropriate.”

United States v. Ghailani. In mid-November, after a five-week trial, former Guantanamo detainee Ahmed Khalfan Ghailani was convicted of one count of conspiracy to destroy government buildings and property. Ghailani, a Tanzanian, had faced a 280-count indictment for involvement in the 1998 bombings of American embassies in Tanzania and Kenya that killed 224 people, but his prosecution faced legal hurdles resulting from his abusive multi-year detention by the CIA. Given that the trial went smoothly, without unusual security problems, and that the defendant now faces a possible life sentence, many observers saw it as a useful test-run for the federal trials of other former CIA detainees.

Al-Aulaqi v. Obama. In early December, District Judge John D. Bates dismissed a lawsuit challenging the possible targeted killing of Anwar al-Awlaki, a dual US-Yemeni citizen and alleged al Qaeda operative. The judge ruled that Awlaki’s father, the plaintiff in the suit, lacked standing to file the petition on behalf of his son. He also concluded that decisions about targeted killings in such circumstances were a “political question” reserved to the executive branch. Acknowledging that it was “a unique and extraordinary case,” Judge Bates emphasized that it implicated “vital considerations of national security and of military and foreign affairs.”

Books

Steve Hendricks, A Kidnapping in Milan. Published in October, the book explores the CIA’s 2003 abduction of an Egyptian imam in Milan, a bungled operation that led to the 2009 conviction of 23 US citizens (nearly all of them CIA operatives) for kidnapping and other crimes. Under the leadership of prosecutor Armando Spataro, who had extensive experience pursuing the Mafia and the Red Brigades, Italian investigators uncovered the details of Abu Omar’s kidnapping using cell phone records, credit card information, and other documentary and forensic evidence.

George W. Bush, Decision Points. Rather than buy the book and wade through 512 pages of self-justification, you might just pick it up in a bookstore and turn to the index. You’ll find that even though torture indelibly marked Bush’s presidency, the word “torture” doesn’t rate an entry. “Ethical concerns” are there, but only as a sub-topic of “stem cell research funding.” The book itself doesn’t give a lot of new information about how and why the Bush administration used torture as an interrogation technique, and it says even less about ethical qualms. The response “Damn right,” which Bush says that he made when asked by then-CIA head George Tenet about whether detainee Khalid Sheikh Muhammed could be subjected to waterboarding, pretty well sums up the tone.

Diplomatic Cables

A series of cables from US diplomatic representatives in Spain and Germany, released by WikiLeaks in late November, documents the US government’s unhappiness with those countries’ judicial investigations of Bush-era counterterrorism abuses. They also describe continuing US efforts to derail the investigations, including pressuring political and judicial officials.

JOANNE MARINER is a human rights lawyer working in New York and Paris.

This column previously appeared on Justia’s Verdict.

 

Like What You’ve Read? Support CounterPunch
August 03, 2015
Joseph Mangano – Janette D. Sherman
The Atomic Era Turns 70, as Nuclear Hazards Endure
Nelson Valdes
An Internet Legend: the Pope, Fidel and the Black President
Robert Hunziker
The Perfectly Nasty Ocean Storm
Jack Dresser
The Case of Alison Weir: Two Palestinian Solidarity Organizations Borrow from Joe McCarthy’s Playbook
Ahmad Moussa
Incinerating Palestinian Children
Greg Felton
Greece Succumbs to Imperialist Banksterism
Binoy Kampmark
Stalling the Trans-Pacific Partnership: the Failure of the Hawai’i Talks
Ted Rall
My Letter to Nick Goldberg of the LA Times
Mark Weisbrot
New Greek Bailout Increases the Possibility of Grexit
Jose Martinez
Black/Hispanic/Women: a Leadership Crisis
Victor Grossman
German Know-Nothings Today
Patrick Walker
We’re Not Sandernistas: Reinventing the Wheels of Bernie’s Bandwagon
Norman Pollack
Moral Consequences of War: America’s Hegemonic Thirst
Ralph Nader
Republicans Support Massive Tax Evasion by Starving IRS Budget
Alexander Reid Ross
Colonial Pride and the Killing of Cecil the Lion
Suhayb Ahmed
What’s Happening in Britain: Jeremy Corbyn and the Future of the Labour Party
Weekend Edition
July 31-33, 2015
Jeffrey St. Clair
Bernie and the Sandernistas: Into the Void
John Pilger
Julian Assange: the Untold Story of an Epic Struggle for Justice
Roberto J. González – David Price
Remaking the Human Terrain: The US Military’s Continuing Quest to Commandeer Culture
Lawrence Ware
Bernie Sanders’ Race Problem
Andrew Levine
The Logic of Illlogic: Narrow Self-Interest Keeps Israel’s “Existential Threats” Alive
ANDRE VLTCHEK
Kos, Bodrum, Desperate Refugees and a Dying Child
Paul Street
“That’s Politics”: the Sandernistas on the Master’s Schedule
Ted Rall
How the LAPD Conspired to Get Me Fired from the LA Times
Mike Whitney
Power-Mad Erdogan Launches War in Attempt to Become Turkey’s Supreme Leader
Ellen Brown
The Greek Coup: Liquidity as a Weapon of Coercion
Stephen Lendman
Russia Challenges America’s Orwellian NED
Will Parrish
The Politics of California’s Water System
John Wight
The Murder of Ali Saad Dawabsha, a Palestinian Infant Burned Alive by Israeli Terrorists
Jeffrey Blankfort
Leading Bibi’s Army in the War for Washington
Mary Lou Singleton
Gender, Patriarchy, and All That Jazz
Robert Fantina
Israeli Missteps Take a Toll
Pete Dolack
Speculators Circling Puerto Rico Latest Mode of Colonialism
Ron Jacobs
Spying on Black Writers: the FB Eye Blues
Paul Buhle
The Leftwing Seventies?
Binoy Kampmark
The TPP Trade Deal: of Sovereignty and Secrecy
David Swanson
Vietnam, Fifty Years After Defeating the US
Robert Hunziker
Human-Made Evolution
Shamus Cooke
Why Obama’s “Safe Zone” in Syria Will Inflame the War Zone
David Rosen
Hillary Clinton: Learn From Your Sisters
Sam Husseini
How #AllLivesMatter and #BlackLivesMatter Can Devalue Life
Shepherd Bliss
Why I Support Bernie Sanders for President
Louis Proyect
Manufacturing Denial
Howard Lisnoff
The Wrong Argument
Tracey Harris
Living Tiny: a Richer and More Sustainable Future