Fake Underreported Terrorism Attacks

The quick response to the hastily published list of 78 “terrorism” incidents which the Administration feels haven’t garnered enough media attention has been to point out that many entries are misspelled (“ATTAKERS” and “SAN BERNADINO”, for example). That’s a cheap and easy criticism. First, who hasn’t had an employer ask you to drop everything you’re doing and bang out a report immediately, due 30 minutes before being tasked with the assignment? Second, for whatever reason, Word doesn’t automatically spell-check words that are in all-caps, so, there won’t necessarily be red squiggles to catch your attention. (Then again, unless all the names on the list have been added to Word’s spell-check dictionary, the document was probably a sea of red squiggles, anyway, so…💁‍♂️)

No, there are more problematic aspects of the list, more so even than the incidents which absolutely *did* receive wall-to-wall coverage (Nice, for example, and San Bernardino–which led to a huge fight between the FBI and Apple regarding unlocking a phone, and which led to Trump calling for a boycott of the latter).

Read more “Fake Underreported Terrorism Attacks”

KSM and Others Leave Gitmo for New York?

Interesting.  According to the AP (and others), five Gitmo detainees will be tried in a civilian court in New York for the 9/11 attacks.  Among these detainees will apparently be Khalid Sheikh Mohammed, who purportedly confessed to masterminding the attacks after severe waterboarding.  Which raises all sorts of evidentiary issues, as Charlie Savage of the New York Times points out:

The decisions about how to prosecute Mr. Mohammed and Mr. Nashiri have been particularly difficult because their defense lawyers are expected to argue that they were illegally tortured by the Central Intelligence Agency during their confinement, tainting any evidence gathered from their interrogations.

In addition to the civilian trial(s), five others will be sent to a brig (probably in South Carolina) for trial before a military commission.  Attorney General Eric Holder is expected to make an official announcement at 11a today.

This announcement, like the under-reported news that President Obama has sent war planners back to the table to come up with better ideas about Afghanistan, signals a potential shift in Obama’s resolve.  Neither decision will be politically popular, and we haven’t seen Obama flex his muscles in quite a while.

Terrorism Charges

As expected, according to the AP, one of the individuals arrested last week in Denver for making false statements has apparently been indicted in New York on conspiracy to use weapons of mass destruction charges.

Under 18 U.S.C. § 2332a, it is a crime to conspire to use a weapon of mass destruction against, among other things, any person or property in the United States.  It is a crime punishable by up to life imprisonment.  A couple of really important caveats about this charge, though.  First, if the alleged target is a person or property located in the United States, some jurisdictional requirements need to be satisfied; one of the following must be shown:

  • the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;
  • such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce;
  • any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense; or
  • the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce;

Second, “weapons of mass destruction” does not mean what many think it means.  Yes, it means the nuclear, biological, or chemical weapons which were the supposed reason for invading Iraq.  But it has a much broader definition than just the nasty stuff.  It also includes a destructive device as defined by 18 U.S.C. § 921:

  • a bomb,
  • a grenade,
  • a rocket having a propellant charge of more than four ounces,
  • a missile having an explosive or incendiary charge of more than one-quarter ounce,
  • a mine, or
  • a device similar to any of the devices described in the preceding clauses.

It also means a rifle (other than a shotgun) having a barrel with a bore of more than one-half inch in diameter.  Antique rifles are exempted from this particular definition, however.  Flare guns, too.

Pretrial Detention

I mentioned the other day that certain individuals had been arrested in Denver for allegedly making false statements to investigators.  According to Agence France-Presse, two of the men have been ordered to be detained pending further review, while a third has been released on bond.

Pretrial detention hearings are a crucial part of the federal criminal process, occurring at the time of the individual’s initial appearance.  During the hearing, the magistrate judge makes a determination of two things: whether the individual is a flight risk, and whether the individual poses a danger to the community.  See 18 U.S.C. § 3142(b) (“The judicial officer shall order the pretrial release of the person … unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.”)

In making this determination, the magistrate judge has certain statutory considerations he must take into account, including the nature and circumstances surrounding the charge, specifically, “whether the offense is a crime of violence, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device.”  Id. § 3142(g)(1).  And here’s where things get a little sticky, because as far as I’ve seen, the only charges levied at this point are false statements, albeit false statements involving terrorism.  So, facially, one wonders whether false statements involving terrorism is a “Federal crime of terrorism.”  It may become a moot point, as it appears from most news accounts that the individuals were arrested on a criminal complaint in the anticipation that an indictment would issue shortly, which indictment might even get superseded with even more charges.

It also is important to note that the standard Rules of Evidence that apply to trials do not apply to detention hearings.  Magistrate judges may hear hearsay evidence, and can hear evidence about activities which don’t necessarily apply to the specific charges.

False Statements and Terrorism

Well, it looks like three people in Denver were arrested for giving false statements in what is being called a terrorism investigation.  (Source.)

False Statements is one of those federal criminal laws that gets used a lot, and it’s fairly simple: under 18 U.S.C. § 1001, it is a crime for a person to knowingly and willfully make any materially false, fictitious or fraudulent statement or representation during a matter which is under the purview of the executive, judicial, or legislative branches.  (There are a few other components to section 1001, but this is the part that trips most people up.)

Now, “materially” means that it has the tendency to influence the course of the investigation, and it’s really, really, really important to note that the threshold is pretty steep.  There’s not even an “exculpatory no” doctrine to account for nervousness.

So, we’ll see what happens with this case.

Animal “Terrorism”

Looks like there’s a Constitutional challenge happening in San Jose.  At issue, in a nutshell, is whether the Animal Enterprise Terrorism Act is overbroad and squelches legitimate free speech.  (Source.)

The law, codified at 18 U.S.C. § 43 reads, in pertinent part, as:

(a) Offense.— Whoever travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility of interstate or foreign commerce—

(1) for the purpose of damaging or interfering with the operations of an animal enterprise; and
(2) in connection with such purpose—
(A) intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise;
(B) intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family (as defined in section 115) of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; or
(C) conspires or attempts to do so;
shall be punished as provided for in subsection (b).

(d) Definitions.— As used in this section—

(1) the term “animal enterprise” means—
(A) a commercial or academic enterprise that uses or sells animals or animal products for profit, food or fiber production, agriculture, education, research, or testing;
(B) a zoo, aquarium, animal shelter, pet store, breeder, furrier, circus, or rodeo, or other lawful competitive animal event; or
(C) any fair or similar event intended to advance agricultural arts and sciences;
(2) the term “course of conduct” means a pattern of conduct composed of 2 or more acts, evidencing a continuity of purpose;
(3) the term “economic damage”—
(A) means the replacement costs of lost or damaged property or records, the costs of repeating an interrupted or invalidated experiment, the loss of profits, or increased costs, including losses and increased costs resulting from threats, acts or vandalism, property damage, trespass, harassment, or intimidation taken against a person or entity on account of that person’s or entity’s connection to, relationship with, or transactions with the animal enterprise; but
(B) does not include any lawful economic disruption (including a lawful boycott) that results from lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise;
(4) the term “serious bodily injury” means—
(A) injury posing a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty; and
(5) the term “substantial bodily injury” means—
(A) deep cuts and serious burns or abrasions;
(B) short-term or nonobvious disfigurement;
(C) fractured or dislocated bones, or torn members of the body;
(D) significant physical pain;
(E) illness;
(F) short-term loss or impairment of the function of a bodily member, organ, or mental faculty; or
(G) any other significant injury to the body.
(e) Rules of Construction.— Nothing in this section shall be construed—

(1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution;
(2) to create new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution, regardless of the point of view expressed, or to limit any existing legal remedies for such interference; or
(3) to provide exclusive criminal penalties or civil remedies with respect to the conduct prohibited by this action, or to preempt State or local laws that may provide such penalties or remedies.

Violating the statute could potentially lead to spending up to life in prison (if death occurs), but there is a sliding scale, pegging the penalty at a maximum of 1, 5, 10, or 20 years imprisonment depending on the physical harm and/or economic damage caused.  (18 U.S.C. § 43(b))

So, what is being argued here?  You can go to the Civil Liberties Defense Center, which has filed a brief (PDF) to dismiss the indictment, to find out.

Indefinite Detentions

I am wary of brushing with broad strokes, and I suppose President Obama is deserving of a wee but of lee-way, but I’m getting sick of feeling the cynical “meet the new boss, same as the old boss.”  Again, at the risk of even pointing to an AP article, the AP says that U.S. District Judge John Bates has ruled that the United States can continue to hold detainees indefinitely.  This policy, of course, was created under the Bush administration with the help of a pliant Congress.  The reason why Obama is deserving of scorn is that it provided Judge Bates with a definition of who can continue to be held at Gitmo: those who the president has determined “planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks,” as well as those “who are or were part of Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed (i.e., directly participated in) a belligerent act in aid of such enemy armed forces.”

Judge Bates opinion  (Hamlily et al., v. Obama, No. 05-0763 (JDB) (civil) (D.D.C. 2009) (and others)) is interesting in a number of ways.  

  1. First, it notes that the Government no longer argues that authorization for detention comes from the President’s authorities under Article II of the Constitution, but from Congress’s Authorization for the Use of Military Force.  Hamlily at 1 n.1.  I suppose that’s refreshing from an overreaching-Executive perspective, but it still doesn’t change the fact that indefinite detention is still being sought.  
  2. Second, Judge Bates bases his opinion on a prior, substantially similar case, Gherebi v. Obama, Civ. A. No. 04-1164, 2009 WL 1068955 (D.D.C. Apr. 22, 2009) which states that the law of war actually supports the detentions.  
  3. Third, Judge Bates rejects the Government’s detainability framework–which includes “substantially support” (language cribbed from 18 U.S.C. § 2339A)–insomuch as it includes “support.”  (Everything else, as I’ve noted, is fine.)  The reason for this?  Judge Bates “can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of ‘support’ as a valid ground for detention.”  Hamlily, at 7.
  4. Fourth, Judge Bates has noted that the government has abandoned the argument that the detainees are “enemy combatants,” because such a classification doesn’t exist in a “non-international” conflict.  Id. at 13, citing Int’l Comm. of the Red Cross, Official Statement: The Relevance of IHL in the Context of Terrorism (July 21, 2005) available at http://www.icrc.org/Web/eng/siteeng0.nsf/html/terrorism-ihl-210705. As such, “The Court also concludes that the authority claimed by the government to detain those who were “part of . . . Taliban or al Qaida forces” is consistent with the law of war. Even though this portion of the government’s framework is consistent with the law of war, however, the government’s position cannot be said to reflect customary international law because, candidly, none exists on this issue.” Id. at 15.

There are other nuggets in there, but that’s the gist of the opinion.  It’s surprising to see some of the things the Obama administration was asking for (such as advocating for the indefinite detention of those who provide financial support), and it really does make one ask what’s going on?  Is it, like some are arguing vis-a-vis the release of the abuse photos, that the Obama administration is really just trying to lay out a sop that will eventually get rejected?  If so, that’s a risky move, in my opinion, as Courts have been brow-beaten into submission to make sure they don’t step on the President’s toes.  See Hamlily at 6.  Or is it that Obama really has no interest in the Change message he ran on, as satirized by the Daily Show? 

Yes We Can…

I don’t know the answer, but I know I’m not the only one getting restive.

Gitmo Releases

The New York Times (and hundreds of others) is reporting that five individuals being held at Guantanamo Bay have been ordered to be released.  District Judge Richard J. Leon is overseeing the first challenges brought by individuals who have been held at Guantanamo Bay, and he has ruled that five of the first six who have brought such challenges have been held for seven years without any justification other than intelligence purposes.  It should be noted that Judge Leon is a Bush appointee who previously ruled against the detainees the first time their case came around.  (The sixth man was deemed to have provided support to al Qaeda.)

Judge Leon ordered the men to be released “forthwith,” and urged the United States not to appeal, but I suspect that an appeal will come.  Of course, things could get shaken up quite a bit if Eric Holder is named as Attorney General and he gets confirmed for the post, because he is on record as being very outspoken against the maintenance of Guantanamo Bay.  (See this ABC blog for a little more info.)