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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.
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.”
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.
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.