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Legal Issues created by the War with Islamic Fascism
Topic: Legal Issues created by the War with Islamic Fascism (Read 68583 times)
POTH: Spy or Leaker?
Reply #450 on:
August 03, 2013, 12:50:40 PM »
Court Rulings Blur the Line Between a Spy and a Leaker
By ADAM LIPTAK
Published: August 2, 2013 336 Comments
WASHINGTON — The federal government is prosecuting leakers at a brisk clip and on novel theories. It is collecting information from and about journalists, calling one a criminal and threatening another with jail. In its failed effort to persuade Russia to return another leaker, Edward J. Snowden, it felt compelled to say that he would not be tortured or executed.
These developments are rapidly revising the conventional view of the role of the First Amendment in national security cases. The scale of disclosures made possible by digital media, the government’s vast surveillance apparatus and the rise of unorthodox publishers like WikiLeaks have unsettled time-honored understandings of the role of mass media in American democracy.
This is so even where the government was the nominal loser. Consider the case of Pfc. Bradley Manning, who dodged a legal bullet on Tuesday, winning an acquittal on the most serious charge against him: that releasing government secrets to the public amounted to “aiding the enemy.”
But a dodged bullet is still a bullet.
The military judge in Private Manning’s case ruled last year that there was no First Amendment problem with the government’s legal theory. Providing classified information for mass distribution, she said, is a sort of treason if the government can prove the defendant knew “he was giving intelligence to the enemy” by “indirect means.”
The verdict thus means only that military prosecutors did not prove their case. The legal theory stands, and it troubles even usual critics of unauthorized disclosures of government secrets.
“It blurs the distinction between leakers and spies,” said Gabriel Schoenfeld, the author of “Necessary Secrets: National Security, the Media, and the Rule of Law.” He said the government might have lost a battle but made headway in a larger war by “raising the charge and making it seem plausible.”
Something similar happened in 1971, when President Richard M. Nixon failed to stop the publication of the Pentagon Papers, a secret history of the Vietnam War. The Supreme Court’s ruling allowing The New York Times and The Washington Post to publish the papers is often said to be a high-water mark in the annals of press freedom.
But like the Manning verdict, the decision represented a shift in the understanding of the First Amendment.
“The American press was freer before it won its battle with the government,” Alexander Bickel, the Yale law professor who represented The Times in the case, wrote in his classic 1975 book, “The Morality of Consent.”
“Through the troubles of 1798, through one civil and two world wars and other wars, there had never been an effort by the federal government to censor a newspaper by attempting to impose a prior restraint,” Professor Bickel wrote. “That spell was broken, and in a sense, freedom was thus diminished.”
Worse, from the perspective of the news media, the victory in the Pentagon Papers case was distinctly limited and helped shape the Manning prosecution.
“A majority of the Supreme Court not only left open the possibility of prior restraints in other cases but of criminal sanctions being imposed on the press following publication of the Pentagon Papers themselves,” Floyd Abrams, who also represented The Times in the case, wrote in a new book, “Friend of the Court.”
According to a 1975 memoir by Whitney North Seymour Jr., who was the United States attorney in Manhattan in the early 1970s, Richard G. Kleindienst, a deputy attorney general, suggested convening a grand jury in New York to that end. Mr. Seymour said he refused. A grand jury was then convened in Boston, but it did not issue an indictment.
The “aiding the enemy” charge in the Manning case was based on military law, and it is not directly applicable to leakers in other parts of the government or to reporters and publishers. But the theory on which it was based has echoes in the more general espionage laws.
Until recently, its leading proponent was Nixon, who mused on the matter in a meeting in the Oval Office the day after The Times published the first installment of its reports on the Pentagon Papers.
“That’s treasonable,” he said to an aide, “due to the fact that it’s aid to the enemy and it’s a release of classified documents.”
In “Fighting for the Press,” a new book about the case, James C. Goodale, who was general counsel of The New York Times Company at the time, said President Obama has followed in Nixon’s footsteps.
“Obama apparently cannot distinguish between communicating information to the enemy and communicating information to the press,” Mr. Goodale wrote. “The former is espionage, the latter is not.”
But John Yoo, a law professor at the University of California, Berkeley, and a former Bush administration lawyer, said that distinction broke down in the Manning case because he did not make his disclosures directly to the establishment press.
“Manning’s defenders will say that Manning only leaked information to the 21st-century equivalent of a newspaper, and that he could not have known that Al Qaeda would read it,” Professor Yoo wrote in National Review Online.
“But WikiLeaks is not The New York Times or The Wall Street Journal, and it does not have First Amendment rights,” he added. “Manning communicated regularly with WikiLeaks’ founder and would have known about the group’s anarchic, anti-U.S. mission.”
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In June, David Gregory asked Glenn Greenwald a question in a similar vein on NBC’s “Meet the Press.” Mr. Greenwald had written articles on government surveillance programs for The Guardian based on materials from Mr. Snowden, a former National Security Agency contractor.
“To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?” Mr. Gregory asked.
Mr. Greenwald responded, “If you want to embrace that theory, it means that every investigative journalist in the United States who works with their sources, who receives classified information, is a criminal.”
The Obama administration seemed to adopt that view in seeking a court order to examine the e-mails of James Rosen of Fox News. The administration’s lawyers said there was “probable cause to believe” that Mr. Rosen was “at the very least” an “an aider and abettor and/or co-conspirator” in violations of the espionage laws.
New Justice Department guidelines, partly a reaction to the furor over the Rosen matter, say the department will not treat “ordinary news-gathering activities” as criminal conduct. But the guidelines do not define those activities.
Last month, a federal appeals court agreed with the Justice Department that James Risen, an author and New York Times reporter, must testify in a prosecution under the espionage laws or face contempt charges.
To date, there have been no prosecutions of journalists in the United States for seeking or publishing classified information. But two lobbyists with the American Israel Public Affairs Committee, Steven J. Rosen and Keith Weissman, were charged in 2005 with violating the espionage laws for conduct they said was functionally equivalent to journalism: they had learned government secrets and passed them along to others.
As in the Manning case, the firewall turned out not to be the First Amendment but the difficulty of proving intent. After Judge T. S. Ellis of Federal District Court in Alexandria, Va., ruled that the government had to show the defendants knew their conduct would hurt the United States, prosecutors dropped the charges.
But Judge Ellis had a larger message, too. He said the case “exposes the inherent tension between the government transparency so essential to a democratic society and the government’s equally compelling need to protect from disclosure information that could be used by those who wish this nation harm.”
“The rights protected by the First Amendment,” he added, “must at times yield to the need for national security.”
WSJ: Obama's Security Retreat
Reply #451 on:
August 12, 2013, 10:11:43 AM »
Though there are points of merit or interest in this editorial, IMHO what it misses is a lot.
Edward Snowden must be smiling. Fresh from gaining asylum from Vladimir Putin, the self-admitted stealer of U.S. security secrets can now boast that he has caused an American President to retreat on his core powers as Commander in Chief.
That's the import of President Obama's announcement late Friday, before he left for Martha's Vineyard, that he wants to overhaul the intelligence and data collection programs he inherited from George W. Bush and has used since he took office. Mr. Obama invited Congress to tie him and future Presidents down with new oversight and limits on a surveillance program that no one has found to have been abused in a single instance.
Mr. Obama's overture is dangerous politically and as policy. A President should explain to the American people why these programs are necessary against a terrorist threat that is far from defeated. As Mr. Obama spoke, the U.S. still had 19 embassies or consulates closed around the world for fear against a terror attack. While most have since been reopened, the uses of surveillance in warning of the potential attack would seem to be clear. Surveillance saves American lives.
(Not that we should know this, but the embassy closings were based upon listening in on a conference call of the much of the AQ team, not saving and reading Americans' mail)
Yet Mr. Obama has now joined the debate on his backfoot, conceding that new bureaucratic intrusions are needed to interfere and limit his own war fighters. "It's not enough for me, as President, to have confidence in these programs. The American people need to have confidence in them as well," Mr. Obama said. Well, yes, but a President's job is to give them that confidence, not to undermine that confidence at the start by saying the critics are right.
The President compounded the retreat by saying he wants a new adversarial advocate added to the current surveillance review done by the Foreign Intelligence Surveillance Court, or FISC. Even if the advocate's mandate is supposedly only for "privacy," this is a bad idea.
The President is essentially inviting into his councils someone whose duty is to oppose surveillance requests that are presumably necessary for security. But this is not a debate over whether to introduce New Coke in which you might need a devil's advocate. This is bringing in someone whose only job is to say no, and without responsibility for the consequences.
Such an advocate compounds the problems with the FISC, which is already a judicial intrusion on the executive that diffuses political accountability. This problem was predicted when Jimmy Carter created the FISC process during the last political panic over intelligence, in the 1970s.
Laurence Silberman, a former deputy Attorney General who is now a federal judge, warned in Congressional testimony in 1978 after having inspected the files of J. Edgar Hoover and others that "I am convinced that the single most important deterrent to executive branch malfeasance is the prospect of subsequent disclosure." The introduction of judicial approval into such war powers as surveillance for national security, he said by contrast, makes the executive less accountable because it offers an excuse for bad decisions or abuse: The judges said it was OK.
This is precisely what we have seen in the wake of Mr. Snowden's betrayals, with leaks and liberals blaming the FISC for being too much of a rubber stamp and even blaming Chief Justice John Roberts for naming too many Republicans and prosecutors to the FISC. So the same liberals who created the FISC as a cure-all now blame it for not constraining the President enough. Mr. Obama is also dodging responsibility by now proposing a fix for the FISC, in large part as a way to shield himself from liberal criticism.
Some of us warned in the 1970s, and have warned since, that such an executive branch role for the judiciary violated the Constitution's separation of powers and would lead to precisely such political complications. We even hear complaints now from the left and libertarian right that the FISC's proceedings are secret. No kidding.
These pages warned about that in the 1970s as well. "The element of judicial secrecy is particularly troubling," wrote Robert Bork, the distinguished legal scholar, in a March 9, 1978 Journal op-ed. "It would set apart a group of judges who must operate largely in the dark and create rules known only to themselves. Whatever that may be called, it debases an important idea to term it the rule of law; it is more like the uninformed, unknown and uncontrolled exercise of discretion." We can now add the secrecy complaint about one of its own creations to the list of reasons that the New York Times owes the late Judge Bork an apology.
As an unelected branch of government, the judiciary derives its authority in part because it holds proceedings and settles most disputes in plain public view. Rather than let the judiciary get further embroiled in the political branches, Chief Justice Roberts would help the credibility of judges and courts if he said the judiciary will not support any such rewrite of the FISC and would prefer to end its current participation.
Not that Mr. Obama's pre-emptive FISC concession will appease the anti-antiterror left and right. They're already pocketing this offer and calling it inadequate. This is because their real goal is to build in so many caveats and burdens on surveillance that it will cease to be a useful antiterror tool.
It's hard to believe a President as politically attuned as Mr. Obama doesn't understand this. He certainly knows how to resist Congressional pressure when he wants to. Yet the passion and argument he brings to bear on domestic issues seems to vanish when he addresses national security.
It's enough to make us wonder if he is reverting in his second term to the Senator who became the darling of the left to outflank Hillary Clinton and win the Democratic nomination. Perhaps the real Barack Obama isn't the President of the first term who used the Bush antiterror policies to pound al Qaeda. Maybe he really believes that he is the only President who can be trusted with such security powers, and so now he is going to use the controversy inspired by Mr. Snowden to hamstring his successors.
Especially if that is true, but even if he is merely trying to appease his left wing, wiser figures in both parties in Congress will need to protect the office of the Presidency and the country from his security retreat.
5th Circuit distinguishes speech and material support
Reply #452 on:
November 15, 2013, 12:36:47 AM »
Mehanna Ruling Draws Line Between Speech and Material Support
November 14, 2013
Arguments that terror prosecutions are criminalizing protected speech took another hit Wednesday, when the First Circuit Court of Appeals upheld terror-support convictions against Tarek Mehanna.
Mehanna is serving 17˝ years in prison after a Boston jury convicted him in 2011 of conspiracy to provide material support to al-Qaida, conspiracy to commit murder abroad, providing material support to terrorists and lying to federal investigators.
Likening terrorism to a "modern-day equivalent of the bubonic plague," the First Circuit Court of Appeals found jurors had ample grounds to find Mehanna's activities crossed the line into illegal material support. The ruling by Circuit Judge Bruce M. Selya acknowledged a delicate balance between "vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association."
But the evidence supports the verdict and Mehanna's sentence because his work was done in coordination with al-Qaida in an attempt to benefit the terrorist group.
The appellate court at times took a dismissive tone in addressing Mehanna's arguments to overturn his conviction. Some were cast aside as "meritless," while others were described as "convoluted theories" and "fishing in an empty stream."
Arguments offered in amicus, or friend of the court, briefs by Mehanna supporters including the American Civil Liberties Union (ACLU) also found little traction. In many cases, the external briefs raised issues Mehanna had not. "The law is settled that amici cannot ordinarily introduce into a case issues not briefed and argued by the appellant," the ruling said.
Mehanna's case drew sympathy from Islamist groups and others. ACLU Massachusetts Executive Director Nancy Murray wrote after the conviction that Mehanna's case proved that, "There is a Muslim exception to the First Amendment," and that Muslims were being prosecuted for "thought crime."
The Council on American-Islamic Relations (CAIR) Chicago chapter offered a similar claim, publishing an intern's article which cast Mehanna as a victim of overzealous FBI surveillance because he is a Muslim. The Muslim Public Affairs Council (MPAC) reposted a Guardian article on its Facebook and Twitter accounts titled, "Tarek Mehanna: Punished for Speaking Truth to Power."
But the appellate court stood by the jury's verdict in rejecting such arguments.
Mehanna came under investigation in 2006. By then, he already had traveled to Yemen in hopes of reaching a terrorist training camp. When that didn't work, he returned to Sudbury, Mass., where he began translating and posting material supporting al-Qaida and "Salafi-Jihadi perspectives," the court wrote.
Jihad may have violent and non-violent interpretations, the court noted, but "the record makes clear that the defendant used the term to refer to violent jihad — and that is the meaning that we ascribe to it throughout this opinion."
Evidence showed Mehanna's work was "in response to Al-Qa'ida's call," prosecutors wrote, "and that he was pleased to be associated with Al-Qa'ida through his work."
Mehanna's supporters rejected the appellate ruling just as they rejected the verdict. "The fundamental problem with the [appellate] ruling is that it allows the government to prosecute unpopular political speech," ACLU attorney Alex Abdo told the Boston Globe.
The argument that Mehanna merely engaged in protected speech can only be accepted by "looking at the evidence through rose-colored glasses..." the court ruled. "His coconspirators testified that [Mehanna] persistently stated his belief that engaging in jihad was 'a duty upon a Muslim if he's capable of performing it,' and that this duty included committing violence. The evidence further showed that, following United States intervention in Iraq, the defendant concluded 'that America was at war with Islam,' and saw American 'soldiers as being valid targets.'"
This case marks at least the third significant prosecution in which appellate courts dismissed claims by defendants and their allies that free speech was being criminalized. In the case of the Humanitarian Law Project, the U.S. Supreme Court found that free speech rights don't apply when the speech is used in coordination with a terrorist group to provide a service. The Fifth Circuit Court of Appeals similarly found that speech was used to show the defendant's intent to help a known terrorist group in a case involving Hamas support.
Mehanna's attorneys also argued that jurors were unduly influenced by graphic videos and accounts of al-Qaida attacks. The court acknowledged that there is no clear formula to balance the prosecution's need to show the defendant's awareness and intent against "piling on" in a way that prejudices the jury. The trial judge had witnesses describe some of the more graphic imagery rather than show it to jurors, and "evinced a keen awareness of the First Amendment issues" in his rulings and jury instructions, the appellate court ruled.
The material was relevant, however, because Mehanna was "inspired by terrorist rants, developed an anti-American animus, which culminated in his decision to travel to Yemen to join in al-Qa'ida's struggle." And Mehanna claimed that his beliefs precluded him from attacking Americans anywhere. Prosecutors could use the al-Qaida videos and Internet material to show that wasn't true, the court ruled.
"It should not surprise a defendant that proof of his participation in conspiracies to provide material support to terrorist organizations and to kill Americans here and abroad will engender the presentation of evidence offensive to the sensibilities of civilized people...," the ruling said. "Terrorism trials are not to be confused with high tea at Buckingham Palace."
Goldsmith on nat'l. security law and press
Reply #453 on:
November 15, 2013, 06:19:39 AM »
The Lawfare Wiki Document Library
Reply #454 on:
January 04, 2014, 11:12:08 AM »
It goes well beyond the post 9/11 years, but I think this is a good place for it.
Last Edit: January 04, 2014, 11:54:56 AM by Crafty_Dog
Re: Legal Issues created by the War with Islamic Fascism
Reply #455 on:
January 04, 2014, 11:55:38 AM »
Good find BD. I've taken the liberty of filling in the Subject line to facilitate finding this post down the road.
Fed judge strikes down NDAA
Reply #456 on:
March 03, 2014, 11:43:19 PM »
BD et al:
Curious as to the take on this:
CIA cover up
Reply #457 on:
March 12, 2014, 10:52:55 AM »
Brits revoking citizenships
Reply #458 on:
April 10, 2014, 10:14:16 AM »
Britain Increasingly Invokes Power to Disown Its Citizens
By KATRIN BENNHOLDAPRIL 9, 2014
LONDON — The letter informing Mohamed Sakr that he had been stripped of his British citizenship arrived at his family’s house in London in September 2010. Mr. Sakr, born and raised here by British-Egyptian parents, was in Somalia at the time and was suspected by Western intelligence agencies of being a senior figure in the Shabab, a terrorist group linked to Al Qaeda.
Seventeen months later, an American drone streaked out of the sky in the Lower Shabelle region of Somalia and killed Mr. Sakr. An intelligence official quoted in news reports called him a “very senior Egyptian,” though he never held an Egyptian passport. A childhood friend of Mr. Sakr, Bilal al-Berjawi, a Lebanese-Briton also stripped of his citizenship by the British government, was killed in a drone strike a month earlier, after having escaped an attack in June 2011.
Senior American and British officials said there was no link between the British government’s decision to strip the men of their citizenship and the subsequent drone strikes against them, though they said the same intelligence may have led to both actions.
But the sequence of events effectively allowed the British authorities to sidestep questions about due process under British law, mirroring the debate in the United States over the rights of American citizens who are deemed terrorist threats. The United States and Britain have a long history of intelligence sharing and cooperation in fighting terrorist threats.
The cases of Mr. Sakr and Mr. Berjawi are among the most significant relating to the British government’s growing use of its ability to strip citizenship and its associated rights from some Britons at the stroke of a pen, without any public hearing and with only after-the-fact involvement by the courts.
Now, faced with concerns that the steady stream of British Muslims traveling to fight in Syria could pose a threat on their return, Prime Minister David Cameron’s government is pushing legislation that would give it additional flexibility to use the power, which among other things keeps terrorism suspects from re-entering the country.
In many Western countries, including the United States, citizenship is considered a right that cannot be taken away except in very limited cases, such as serving in another nation’s military or having obtained citizenship fraudulently. Others strip citizenship from people who take another passport. Britain, along with Israel, is one of the few countries that can revoke the citizenship of dual nationals — even if they are native born — if they are suspected or convicted of terrorist offenses or acts of disloyalty.
Britain is seeking to expand the practice to naturalized citizens who have no other nationality and would be rendered stateless. Citizenship, in the words of Home Secretary Theresa May, is a “privilege, not a right.”
The issue is beginning to stir public debate. A government-sponsored amendment expanding the practice to naturalized citizens who have no other nationality sailed through the House of Commons this year. But on Monday, in a rare act of parliamentary rebellion, the House of Lords rejected the amendment and asked instead for a joint committee of both houses to examine whether the additional powers are necessary. The draft legislation will now return to the House of Commons.
Continue reading the main story
Britain typically strips people of citizenship when they are outside the country. The procedure requires only that the home secretary find that stripping someone of citizenship would be “conducive to the public good,” then sign a deprivation order and send a letter to the person’s last known address. Loss of citizenship is effective immediately. It can be challenged in court, but that is a difficult task in most cases, given the inability of a targeted person to return to Britain for any proceedings.
“Deprivation can help disrupt the terrorist threat,” John Taylor, the junior minister for criminal information, said in a recent parliamentary debate. Mr. Taylor said the government refused to be “at the whim of other countries’ nationality laws” or the view of a court.
Other countries are watching closely. A Canadian bill giving the government some deprivation powers is now before Parliament. Australia and the Netherlands are considering drafting legislation.
In Britain, there is some unease at the implications.
Mr. Sakr, who was killed in February 2012, had appealed on the grounds that the British government was rendering him stateless. He had never sought an Egyptian passport despite being eligible for one because of his parents’ heritage. He eventually abandoned his appeal for fear that frequent communication with his lawyer on a cellphone or computer would make him vulnerable to a drone strike by giving away his location, according to his lawyer at the time, Saghir Hussain.
Mr. Berjawi was killed in January 2012, hours after using a cellphone to call his wife in a London hospital on the day their son was born.
In a case involving the United States, a Somali-born Briton, Mahdi Hashi, was stripped of his British citizenship in June 2012 and captured and detained on an American base in Djibouti two months later. He was taken to the United States, where he awaits trial on terrorism-related charges.
“The sequence of events does not look accidental,” said Mr. Hussain, who is also representing Mr. Hashi in a separate appeal against his deprivation order.
Forty-two people have been stripped of their British citizenship since 2006, 20 of them last year, according to a freedom of information request filed by the Bureau of Investigative Journalism, a research organization at City University London that first drew attention to the practice in December 2012. In Israel, by comparison, the power to revoke citizenship has been used only twice since 2000, according to the Interior Ministry there.
*Those advocating or applauding the actions of the British Government, in contravention of their Human Rights treaty obligations, assume that...
*You are not owed the right to remain a citizen if you plot against your home country. It is that simple. A country has the right to...
*Anyone who conspires with violent terrorists has already disowned the essential structure of Western democracies. They deserve to lose...
Mr. Cameron’s government, in power since 2010, has stripped more people of their citizenship than all the other British governments since World War II combined, said Matthew J. Gibney, an expert on citizenship at the University of Oxford.
During World War I, anti-German sentiment and concern over foreign spies first made citizenship deprivation a popular tool both here and in the United States.
The practice fell into disuse after World War II, when it became associated with totalitarian regimes like Nazi Germany. A landmark ruling by the United States Supreme Court in 1958 struck down a law that allowed citizenship deprivation as a punishment. Proposed legislation in Congress in 2010 to reinstate the practice did not win enough support.
In Britain, the power remained on the books but was little used until after the attacks of Sept. 11, 2001. Powers have been gradually expanded since then.
The most significant expansion came in 2006, after the July 7, 2005, attacks on the London transportation system that killed 56 people, including four bombers. The previous standard — whether someone’s conduct was “seriously prejudicial to the vital interests” of the country — was replaced with more elastic wording that allows deprivation on the grounds that it is “conducive to the public good.”
The 2006 legislation was shaped by the case of Abu Hamza al-Masri, a British-Egyptian cleric the government had been seeking to strip of citizenship since 2003. He was deprived of his Egyptian citizenship while his appeal against the British order was pending, forcing the British government to drop its efforts. Mr. Masri remains a British citizen, but has since been extradited to the United States to face terrorism charges.
The latest proposed amendment may also have been inspired by a specific case in which the government did not get its way.
Hilal al-Jedda, an Iraqi-born naturalized Briton, lost his British nationality in 2007 after being detained in Iraq on suspicion of smuggling explosives.
Out of 15 appeals, his is the only one to have succeeded. Britain’s Supreme Court ruled in October that Mr. Jedda could not be deprived of his British nationality because that action would make him stateless: Iraq bans dual citizenship and canceled Mr. Jedda’s passport in 2000 when he was naturalized in Britain. The British government was forced to reinstate his citizenship on Oct. 9, 2013.
But on Nov. 1, Mr. Jedda was stripped of his nationality a second time, and in January the Home Office rushed before Parliament the amendment allowing deprivation even if it results in statelessness, provided that a suspect’s citizenship is “seriously prejudicial to the vital interests of the United Kingdom.”
POTH: DOJ modifies profiling rules
Reply #459 on:
April 10, 2014, 10:40:04 AM »
This is from Pravda on the Hudson so caveat lector:
WASHINGTON — Attorney General Eric H. Holder Jr.’s long-awaited revisions to the Justice Department’s racial profiling rules would allow the F.B.I. to continue many, if not all, of the tactics opposed by civil rights groups, such as mapping ethnic populations and using that data to recruit informants and open investigations.
The new rules, which are in draft form, expand the definition of prohibited profiling to include not just race, but religion, national origin, gender and sexual orientation. And they increase the standards that agents must meet before considering those factors. But they do not change the way the F.B.I. uses nationality to map neighborhoods, recruit informants, or look for foreign spies, according to several current and former United States officials either involved in the policy revisions or briefed on them.
While the draft rules allow F.B.I. mapping to continue, they would eliminate the broad national security exemption that former Attorney General John Ashcroft put in place. For Mr. Holder, who has made civil rights a central issue of his five years in office, the draft rules represent a compromise between his desire to protect the rights of minorities and the concern of career national security officials that they would be hindered in their efforts to combat terrorism.
The Justice Department has been reworking the policy for nearly five years, and civil rights groups hope it will curtail some of the authority granted to the F.B.I. in the aftermath of the 9/11 terrorist attacks. Muslims, in particular, say federal agents have unfairly singled them out for investigation. The officials who described the draft rules did so on the condition of anonymity because they were not authorized to discuss them.
Mr. Holder, who officials say has been the driving force behind the rule change, gave a personal account of racial profiling on Wednesday before the National Action Network, the civil rights group founded by the Rev. Al Sharpton.
“Decades ago, the reality of racial profiling drove my father to sit down and talk with me about how, as a young black man, I should interact with the police if I was ever stopped or confronted in a way I felt was unwarranted,” he said.
Throughout the review process, however, the attorney general and his civil rights lawyers ran up against a reality: Making the F.B.I. entirely blind to nationality would fundamentally change the government’s approach to national security.
The Bush administration banned racial profiling in 2003, but that did not apply to national security investigations. Since then, the F.B.I. adopted internal rules that prohibited agents from making race or religion and nationality the “sole factor” for its investigative decisions.
Civil rights groups see that as a loophole that allows the government to collect information about Muslims without evidence of wrongdoing.
Intelligence officials see it as an essential tool. They say, for example, that an F.B.I. agent investigating the Shabab, a Somali militant group, must be able to find out whether a state has a large Somali population and, if so, where it is.
As written, the new rules are unlikely to satisfy civil rights groups and some of the administration’s liberal allies in Congress. Senator Richard J. Durbin, Democrat of Illinois, has said the existing rules “are a license to profile.”
The Justice Department rules would also apply to the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, Firearms and Explosives, but it is the F.B.I. that takes the lead on most national security investigations.
Farhana Khera, the president of Muslim Advocates, said expanding the rules to cover nationality and religion would be a significant step forward. But she opposed any rule that allowed the F.B.I. to continue what it calls “domain mapping” — using census data, public records and law enforcement data to build maps of ethnic communities. Agents use this data to help assess threats and locate informants.
“It would certainly mean we have work to do,” said Ms. Khera, who was one of several rights advocates who met with Mr. Holder about the profiling rules last week. “We want an effective ban on all forms of profiling.”
Before federal agents could consider religion or other factors in their investigations under the new rules, they would need to justify it based on the urgency and totality of the threat and “the nature of the harm to be averted,” according to an official who has seen the draft.
That would not prevent agents from considering religion or nationality, but officials said the goal was to establish clear rules that made doing so rare.
Department officials were prepared to announce the new rules soon and had told Congress to expect them imminently. But recently, the White House intervened and told Mr. Holder to coordinate a larger review of racial profiling that includes the Department of Homeland Security, officials said.
That is significant because the Bush-era racial profiling rules also contained an exception for border investigations, which are overseen by the department. Hispanic advocacy groups are as opposed to that caveat as Muslims are to the exception for national security investigations.
Mr. Holder cannot tell Homeland Security what rules to follow. But he has told colleagues that he believes border agents can conduct their investigations without profiling and by following the same rules as the Justice Department, one law enforcement official said.
It is not clear how long this broader review will take, but for now it has delayed release of the Justice Department rules.
Relations between the F.B.I. and Muslims have at times been strained since the weeks after 9/11, when agents arrested dozens of Muslim men who had no ties to terrorism.
Since then, the F.B.I. has adopted new policies and invested heavily to explain them to Muslim populations. Senior agents speak at mosques and meet regularly with imams and leaders of Muslim nonprofit groups, but suspicions remain.
Internal F.B.I. documents revealed that agents used their relationship-building visits at mosques as a way to gather intelligence. Leaked training materials, which the F.B.I. quickly disavowed, described the Prophet Muhammad as a cult leader and warned that mainstream Muslims shared the same “strategic themes” as terrorists.
The draft rules would establish a program to track profiling complaints. The current process is less organized, making it difficult to track patterns in complaints or how they are resolved.
FBI spying claims
Reply #460 on:
April 22, 2014, 10:37:47 AM »
Justice Breyer’s intriguing suggestions in Hussain
Reply #461 on:
April 29, 2014, 02:20:23 PM »
From the article:
In the post-Boumediene habeas cases, the government has argued, and the habeas courts have agreed, that being part of al Qaeda or Taliban forces is, in and of itself, sufficient for AUMF detention. And that’s (at most) all the government demonstrated in Hussain — that the individual had been a part of Taliban forces. The government did not try to demonstrate that Hussain had engaged in any belligerent acts or otherwise been involved in the armed conflict against the United States.
As Justice Breyer notes, however, the Supreme Court has never actually opined on whether being a member of Taliban forces, standing alone, is sufficient for AUMF detention. Justice O’Connor’s controlling plurality opinion in the leading case, Hamdi v. Rumsfeld, held only that the AUMF authorized military detention of (in her words) “an individual who . . . was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there” (emphasis added).
Rand Paul: Show us the Drone Kill memos
Reply #462 on:
May 12, 2014, 07:23:59 AM »
Show Us the Drone Memos
By RAND PAULMAY 11, 2014
WASHINGTON — I BELIEVE that killing an American citizen without a trial is an extraordinary concept and deserves serious debate. I can’t imagine appointing someone to the federal bench, one level below the Supreme Court, without fully understanding that person’s views concerning the extrajudicial killing of American citizens.
But President Obama is seeking to do just that. He has nominated David J. Barron, a Harvard law professor and a former acting assistant attorney general, to a seat on the United States Court of Appeals for the First Circuit.
While he was an official in the Justice Department’s Office of Legal Counsel, Mr. Barron wrote at least two legal memos justifying the execution without a trial of an American citizen abroad. Now Mr. Obama is refusing to share that legal argument with the American people.
On April 30, I wrote to the Senate majority leader, Harry Reid, urging him to delay this nomination, pending a court-ordered disclosure of the first memo I knew about. Since that letter, I have learned more. The American Civil Liberties Union sent a letter to all senators on May 6, noting that in the view of the Senate Intelligence Committee chairwoman, Dianne Feinstein, “there are at least eleven OLC opinions on the targeted killing or drone program.” It has not been established whether Mr. Barron wrote all those memos, but we do know that his controversial classified opinions provided the president with a legal argument and justification to target an American citizen for execution without a trial by jury or due process.
I believe that all senators should have access to all of these opinions. Furthermore, the American people deserve to see redacted versions of these memos so that they can understand the Obama administration’s legal justification for this extraordinary exercise of executive power. The White House may invoke national security against disclosure, but legal arguments that affect the rights of every American should not have the privilege of secrecy.
I agree with the A.C.L.U. that “no senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.” The A.C.L.U. cites the fact that in modern history, a presidential order to kill an American citizen away from a battlefield is unprecedented.
The Bill of Rights is clear. The Fifth Amendment provides that no one can be “deprived of life, liberty, or property, without due process of law.” The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” as well as the right to be informed of all charges and have access to legal counsel. These are fundamental rights that cannot be waived with a presidential pen.
In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.
No one argues that Americans who commit treason shouldn’t be punished. The maximum penalty for treason is death. But the Constitution specifies the process necessary to convict.
Anwar al-Awlaki was an American citizen who was subject to a kill order from Mr. Obama, and was killed in 2011 in Yemen by a missile fired from a drone. I don’t doubt that Mr. Awlaki committed treason and deserved the most severe punishment. Under our Constitution, he should have been tried — in absentia, if necessary — and allowed a legal defense. If he had been convicted and sentenced to death, then the execution of that sentence, whether by drone or by injection, would not have been an issue.
But this new legal standard does not apply merely to a despicable human being who wanted to harm the United States. The Obama administration has established a legal justification that applies to every American citizen, whether in Yemen, Germany or Canada.
Defending the rights of all American citizens to a trial by jury is a core value of our Constitution. Those who would make exceptions for killing accused American citizens without trial should give thought to the times in our history when either prejudice or fear allowed us to forget due process. During World War I, our nation convicted and imprisoned Americans who voiced opposition to the war. During World War II, the government interned Japanese-Americans.
The rule of law exists to protect those who are minorities by virtue of their skin color or their beliefs. That is why I am fighting this nomination. And I will do so until Mr. Barron frankly discusses his opinions on executing Americans without trial, and until the American people are able to participate in one of the most consequential debates in our history.
Did Baraq want terrorist trade as way of closing Gitmo?
Reply #463 on:
June 05, 2014, 04:24:14 PM »
Re: Legal Issues created by the War with Islamic Fascism
Reply #464 on:
July 02, 2014, 02:41:21 PM »
Deporting Al-Arian May Be Easier Said Than Done
July 2, 2014
In dropping their criminal contempt case last week against Sami Al-Arian, a member of the Palestinian Islamic Jihad's board of directors during the 1990s, prosecutors said they will seek to deport him under terms of a related 2006 plea agreement.
That may not happen anytime soon. Similar deportation cases have ended successfully, but took several years to complete. In the interim, Al-Arian is free to resume a normal life, and return to political activity, something he already started to do at pro-Muslim Brotherhood events even under terms of pre-trial release.
Nothing was happening in the contempt case, which had been frozen by U.S. District Judge Leonie Brinkema for five years as she found herself unable to grant a defense motion to dismiss and unwilling to let it proceed to trial. She offered no signs that would change. Twice, she promised a written order on the pending motions keeping the case from going to trial. It never materialized.
The contempt case grew out of Al-Arian's refusal to testify before a federal grand jury in Northern Virginia that was investigating possible terror financing by a group that helped fund Al-Arian's operations. He was given immunity for his truthful testimony, but still refused, claiming that his 2006 plea agreement to conspiring to provide services to the PIJ included a government promise that his "cooperation" with it was over.
There was no such language in his plea agreement, but he argued that the absence of a cooperation clause proved his claim. A grand jury subpoena is compelled testimony, not voluntary. And, as U.S. District Judge James Moody noted in a hearing on the matter, before his plea "Dr. Al-Arian could have been subpoenaed to testify as a witness just like anybody else in this country; right?"
The defense argument amounted to giving Al-Arian a unique exemption because he became a convicted felon. Appellate courts in the 4th and 11th circuits rejected Al-Arian's claims. He prevailed in the end by refusing to budge, an awful precedent for prosecutors trying to compel testimony from hostile witnesses.
That example grows worse if Al-Arian skirts his plea's specific language calling for his eventual deportation.
Removing stateless Palestinians is difficult, however, especially in a case involving a man who served on a terrorist group's Shura council. It requires travel documents and a country willing to accept him.
But it has been done. In 2012, Bayan and Basman Elashi were deported three years after a final order was issued against them. Both were part of Infocom, a webhosting company in Richardson Texas, connected to Hamas political leader Mousa Abu Marzook. Both were convicted of doing business with a terrorist and conspiring to violate export regulations.
The Elashi brothers made their way to Gaza by way of Egypt.
And two of Al-Arian's associates were deported to the West Bank. Sameeh Hammoudeh, a co-defendant in Al-Arian's terror support trial, was deported in 2006 under terms in a separate tax case. And Fawaz Damra, a fiery imam who raised money for the PIJ, urging that checks be written to Al-Arian's charity, was deported in 2007 after being convicted three years earlier of immigration fraud. Damra introduced Al-Arian as head of "the active arm of the Islamic Jihad Movement in Palestine" during one of their fundraisers.
The Cleveland Plain Dealer later found him selling drapes and doing some teaching in Ramallah.
Hammoudeh's was an exceptionally fast removal. The other cases took years to complete. For Al-Arian, that could mean years to take advantage of his status as a hero to American Islamists and their allies. The contempt case's dismissal was a cause for celebration among those supporters. The Muslim Public Affairs Council (MPAC), which casts itself as a moderate political organization and enjoys close ties to the White House called it "a joyous day." The Council on American-Islamic Relations (CAIR), which was created by a Muslim Brotherhood support network for Hamas in America, first offered praise to God for the case's demise. Then, Executive Director Nihad Awad followed up with a statement noting CAIR's longtime support for "Dr. Al-Arian and his family through this harrowing trial ... This is a victory for the entire community, but of course most of all the Al-Arian family."
On his Twitter feed, Awad posted a similar message in English. In Arabic, however, he wrote that Al-Arian endured "11 years of suffering because of the Israeli lobby."
Journalist Glenn Greenwald, recipient of tens of thousands of secret NSA files stolen by Edward Snowden, called the case "One of the worst post-9/11 persecutions."
None of these happy supporters acknowledged Al-Arian's documented role on the PIJ board. Wiretaps showed that he spent the bulk of 1994 arguing with handlers in Iran to keep the PIJ from imploding. Al-Arian's commitment to violent jihad extended beyond running "the active arm of the Islamic Jihad Movement in Palestine." He used the occasion of a double-suicide bombing to write a solicitation for donations for "the jihad effort in Palestine so that operations such as these can continue."
He arranged to bring Ramadan Shallah into the United States on a work visa, and then feigned shock when Shallah emerged in 1995 as the new PIJ secretary general.
To supporters, however, he remains an activist and civil rights advocate. If he is deported – something he promised to help facilitate in his 2006 guilty plea and where willful obstruction could now be a separate criminal offense – those same advocates likely will decry it as an injustice.
Al-Arian was born in Kuwait and raised in Egypt. Neither is likely to want him back, especially Egypt, which waged a violent crackdown on the Muslim Brotherhood and staged mass arrests.
The United States may have options, however. Start with the Palestinian Authority, currently functioning as a unified partnership between Fatah, which dominates the West Bank, and Hamas in Gaza. The U.S. did not break relations with the PA or cut its funding when Hamas, a designated terrorist group, joined the government.
Task the PA with taking Al-Arian in, either in the West Bank or Gaza. The trick would be in getting him past entry points in Egypt or Israel, but the Damra and Elashi cases are examples of previous successes. Another U.S. "ally," the Gulf emirate of Qatar, provided refuge for Hamas political leader Khaled Meshaal.
Al-Arian flouted the system by concocting an imaginary benefit allowing him to rebuff a grand jury subpoena and insisting it was real even if no one could see it. He must not be further rewarded with the comforts and privileges of life here.
As Judge Moody said in sentencing Al-Arian in 2006, "The evidence was clear in this case that you were a leader of the Palestinian Islamic Jihad. You were on the board of directors and an officer, the secretary. Directors control the actions of an organization, even the PIJ; and you were an active leader."
Right now, he's free in America. The Department of Homeland Security needs to do everything it can to send him packing.
Tsarnaev friend nears sentencing on Obstruction charge
Reply #465 on:
July 14, 2014, 08:14:47 PM »
Verdict expected this week...
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