Counterterrorism Law & Prosecuting Terrorists

Obama admin defends killing American terrorists - CNN

On February 23, 2012, CNN's national security blog reported that Jeh Johnson, Defense Department General Counsel, stated during a speech at Yale University that "The targeted killing of those suspected of engaging in terrorist activities against the United States, including American citizens, is justified and legal..."  According to CNN, Johnson is the first government lawyer to officially defend the killing of American citizens engaging in terrorist activities.

In defending the Administration's position, Johnson referenced Hamdi v. Rumsfeld where the Supreme Court held that a U.S. citizen could engage in an armed conflict against America.  Johnson's position mirrors those of State Department legal adviser, Harold Koh, who had previously advocated that targeted killing is not assassination. 

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Guantanamo detainee reaches plea deal - Washington Post

On February 22, 2012 the Washington Post reported that Majid Khan, a high-value Guantanamo Bay detainee, had reached a plea agreement with prosecutors. 

According to the article, a 2008 assessment of Khan found him to be "a high risk to the United States and its allies, a low detention threat, and of 'high intelligence value.'"  The agreement, which is the first with a high-value detainee, would require Khan to testify against other detainees over the course of the next four years in exchange for a reduced sentence and eligibility to be transferred to Pakistan.

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Baltimore resident faces terror trial - MSNBC

On February 16, 2012, MSNBC reported that the Pentagon approved war crimes charges for Majid Khan, a Maryland-raised Pakistan citizen.  Khan, who has been held in Guantanamo Bay since 2006, is charged with murder, attempted murder, and providing material support to al-Qaida.  He faces a possible life sentence.

According to the article, "The military has accused Khan of plotting...to blow up underground fuel tanks in the U.S. and scheming to assassinate then President Pervez Musharraf of Pakistan."

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Dempsey "concerned" about releasing Gitmo prisoners - CNN

According to a February 14, 2012 article in CNN's national security blog, General Martin Dempsey, Chairman of the Joint Chief of Staff, expressed concerns about "transferring prisoners from Guantanamo in a deal to bring the Taliban to the negotiation table."

CNN quoted a portion of General Dempsey's testimony in front of the Senate Armed Services Committee where he stated that he is "concerned about our ability to maintain vigilance and control of those individuals" if they are released.  According to the article, Secretary of Defense Panetta told the committee that "no prisoner would be transferred out without his certification that they will not return to battlefield, a requirement created by Congress."

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The Taliban who may leave Gitmo - CNN

On February 3, 2012, CNN reported that the Obama Administration is considering the release of several senior Taliban members from Guantanamo Bay.  While the details have not been disclosed to the public, CNN reports that the individuals would likely be relocated to Qatar.  The option stems from recent efforts by the Obama Administration to explore peace talks with the Taliban.  According to CNN, "The Administration has said any discussion about releasing the detainees is very preliminary and hinges on the Taliban renouncing terrorism and agreeing to peace talks."

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Do Drones Undermine Democracy? - NYTimes.com

Peter W. Singer, director of the 21st Century Defense Initiative at the Brookings Institution, argues that, “[d]rones are blurring the civilian and military roles in war and circumventing the constitutional mandate for authorizing it,” in the 1/22/12 Opinion section of the New York Times.  Singer writes about killings by the U.S. Government using unmanned aerial vehicles:

And now we possess a technology that removes the last political barriers to war. The strongest appeal of unmanned systems is that we don’t have to send someone’s son or daughter into harm’s way. But when politicians can avoid the political consequences of the condolence letter — and the impact that military casualties have on voters and on the news media — they no longer treat the previously weighty matters of war and peace the same way.

Singer, whose book Wired for War: The Robotics Revolution and Conflict in the 21st Century, named a Book of the Year in 2009 by The Financial Times, is not arguing about the morality of the drone strikes.  Rather, he explains his concern about the policy and legal implications of this technology, writing:

I do not condemn these strikes; I support most of them. What troubles me, though, is how a new technology is short-circuiting the decision-making process for what used to be the most important choice a democracy could make. Something that would have previously been viewed as a war is simply not being treated like a war.

The article is entitled: “Do Drones Undermine Democracy?” and the permalink for the article is: http://www.nytimes.com/2012/01/22/opinion/sunday/do-drones-undermine-democracy.html .

Do Drones Undermine Democracy? - NYTimes.com

Guantanamo detainees' bleak future - CNN

On January 8, 2012, CNN's national security blog, Security Clearance featured a piece that analyzed the future of the 171 Guantanamo Bay detainees.  According to the article, Republican roadblocks buried any attempt by the Obama Administration to close the facility.  Among the 171 remaining detainees, CNN reports that seven are to be tried by military commissions, forty-six are set for indefinite detention, and sixty are expected to be transferred to another country.  The article additionally provides a review of each of the three options [military commission, indefinite detention, and transfer].

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House passes $662 billion defense bill after White House drops veto threat - Washington Post

On December 14, 2011, the Washington Post reported that the U.S. House of Representatives passed a highly contested defense appropriations bill after the Obama Administration dropped its threat to veto the bill. 

According to the article, the White House dropped its veto threat after members of the Administration were successful in obtaining key revisions to the bill.  According to White House Press Secretary Jay Carney, the new bill "does not challenge the president's ability to collect intelligence, incapacitate dangerous terrorists and protect the American people."  These powers are reinforced, in part, by a provision in the bill that states that nothing in the bill "will affect existing criminal enforcement and national security authorities of the FBI or any other domestic law enforcement agency." 

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Senate Approves Requiring Military Custody in Terror Cases - NY Times

On November 29, 2011, the New York Times reported that the U.S. Senate voted 61 to 37 to pass a defense appropriations bill without omitting a controversial provision that would "increase the role of the military in imprisoning suspected members of Al Qaeda and its allies..."

According to the article, the highly contested provision requires "the government to place into military custody any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies."  The New York Times further reported that while the provision does not apply to U.S. citizens, any foreigners arrested on U.S. soil will be detained by the military.

In voting for the provision, the article notes that the Senate defied President Obama's threat of veto.  According to the article, the Obama Administration has long opposed the provision, stating that it "would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets."

Defending his vote, the New York Times quoted Senator Lindsey Graham [R-SC] who stated "I don't believe fighting Al Qaeda is a law enforcement function.  I believe our military should be deeply involved in fighting these guys at home or abroad."

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Beth Van Schaack: Guantánamo hearing shows stark deficiencies of military justice - Mercury News

On November 20, 2011, the Silicon Valley Mercury News featured an opinion piece by Beth Van Schaack of the National Institute of Military Justice.  Ms. Van Schaack visited Guantanamo Bay Naval Base for a week to observe the arraignment of alleged terrorist, Abd al-Rahim al-Nashiri.

In her piece, Van Schaack criticized the proceeding as a "fundamentally flawed military commission system."  The principle argument that she raises is that the substance of the motions that were raised would "never have been filed in a U.S. court."  Specifically, Van Schaack noted that both parties argued the merits of whether "the jurors on the commission should be told that al-Nashiri will likely continue to be detained as an enemy combatant."  Ultimately, Van Schaack concludes by arguing that prosecution in a federal court is the better alternative.

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