Congress Should Consider NATO to Fill Gaps in European Security

The House Homeland Security Committee Task Force on Combating Terrorist and Foreign Fighter Travel released its final report in September 2015 raising 32 key findings and over 50 commendations for countering terrorist travel.[1] The report states that we are seeing the largest migration of jihadists in history. Over 4,500 Westerners are among the fighters are headed to Iraq and Syria. These foreign fighters threaten the security of the United States in three ways: 1) they bolster terrorist organizations, 2) influence other Westerners to leave home and join them, and 3) can return to their respective home countries to carryout attacks after receiving training themselves.[2]

A major point of the Report is that there are gaping holes in European security that are ultimately putting the United States at risk. Foreign fighters are using European countries with weak counterterrorism laws as a gateway to the rest of the Schengen Area countries and North America. The United Nations has attempted to combat this problem by passing U.N. Security Council Resolution 2178. This document recognizes the threat of terrorism and foreign fighters, and calls upon member state to take actions to implement the counterterrorism efforts alluded to in this document. The House Homeland Security Committee Task Force on Combating Terrorist and Foreign Fighter Travel has expressed support for the resolution and has encouraged the relevant U.S. agencies to fulfill their obligations under the resolution. However, this document is rather lofty and seems to lack backing and enforceability, and will likely not fill the security gaps in Europe.

I would like to contend that NATO should be heavily involved in the counterterrorism efforts and used to fill the security gaps in Europe. Congress should use the full extent of its authority and influence to compel NATO to become a leader in the effort. Through this article I will explore the idea of NATO being a more effective leader in the counterterrorism effort and being used to close the gaps in European security.

NATO would be an effective counterterrorism authority for the following reasons: 1) NATO is a military organization at its core, 2) NATO is made up of a concise number of states, 3) the member states of NATO have a high stake in counterterrorism and mitigating foreign fighter travel, and 4) NATO has the ability to mobilize and has experience mobilizing states in counterterrorism efforts.

NATO is a dual-faceted organization operating on both a political and military platform. The political mission of NATO is to protect freedom and ensure the security of its member states through consultation and cooperation. Even the political component of NATO has the ultimate goal of fostering security and defense cooperation to build trust and prevent future conflict. Given the violent nature of the threat we are seeing from foreign fighters and terrorists, a military-minded organization is needed counterstrike effectively.[3]

NATO is made up of a concise number of relatively like-minded states that span a specific region. The ideological similarities that the member states share can facilitate cooperation effectively because there are not large divides in opinions on tactics that are used to respond to foreign fighters and terrorism as might be seen in other security minded organizations. The geographical centrality of NATO creates an incentive to work together because if an act of terrorism is committed in one member state, it can almost just as easily be committed in the next member state. The counter terrorism effort should be especially unified between the Schengen Area member states, and Canada and the United States on the western fringe of NATO. The ease of access between Schengen Area states, and between the United States and Canada, creates a strong sense of accountability for each individual country in each region to prevent foreign fighters from initially passing through their border. If a foreign fighter initially enters into a country in either region, he is able to travel among the other countries in that region in a manner that is less restricted than his initial entrance into the first country. The same is true if a foreign fighter wishes to travel from Europe to the United States or Canada. Traveling from eastern NATO states to western NATO states is easier than traveling from most non-NATO states to NATO states. It is very important that member states cooperate to keep foreign fighters from traveling into any NATO state from any non-NATO state and also that they effectively restrict travel of any foreign fighters that are discovered within their territory. The ideological and regional similarities of the NATO states makes for an organizational culture that is keen on working toward this common goal.

The NATO states, making up most of “the west” have a very specific interest in counterterrorism because the Islamic State and most other terrorist groups have effectively declared war on the west and expressed their hate of western values.[4] Most attacks are taking place within or around Islamic State-held territory currently, but this could change if NATO countries do not strengthen their capacity to filter out terrorists attempting to enter their countries. Member states have a specific interest in counterterrorism because they are the highest value targets for terrorist organizations.

As demonstrated shortly after 9/11, NATO has the capacity to enforce Article 5 of the Washington Treaty and respond to acts of terrorism. Article 5 considers an attack on any one NATO state to be an attack on all NATO states.[5] This unifies the treaty organization and allows for the option of an actual military response. NATO should consider enforcing Article 5 and responding strongly to the threat of terrorism and the travel of foreign fighters in an attempt to fill the security gaps in Europe.

Congress would see positive results if it used its authority and influence to encourage NATO to become a leader in filling the gaps in European security in the fight against terrorism and foreign fighter travel. Because of NATO’s military focus, concise numbers, directly threatened member states, and mobilizing ability, it would make an effective leader in counterterrorism and be an efficient way for the United States to cooperate with Europe.

By: Daniel Patrick Shaffer

[1] “Final Report of Task Force on Combating Terrorist and Foreign Fighter Travel.” Homeland Security Committee. Web. 21 Feb. 2016. <https://homeland.house.gov/task-force-on-terrorist-and-foreign-fighter-travel/>.

[2] Id.

[3] North Atlantic Treaty Organization. Web. 22 Feb. 2016. <http://www.nato.int/>.

[4] “Isis Announces Caliphate in ‘declaration of War'” The Guardian. 29 June 2014. Web. 23 Feb. 2016. <http://www.theguardian.com/world/2014/jun/29/isis-iraq-caliphate-delcaration-war>.

[5] The North Atlantic TreatyNorth Atlantic Treaty Organization. 09 Dec. 2008. Web. 23 Feb. 2016. <http://www.nato.int/cps/en/natolive/official_texts_17120.htm>.

 

Bringing the “Crazy Bastards” Home: Ghailani and his Slow, Torturous Wait for a Speedy Trial

Simply stated, the American people do not want to close Guantanamo Bay, which is an isolated, military-controlled facility, to bring these crazy bastards who want to kill us all to the United States.

                    – Senator Lindsay Graham

I.          Crossruffing

Reviving a model created by President Franklin D. Roosevelt’s 1942 order authorizing a military commission to try eight Nazis apprehended in the United States,  President George W. Bush signed  an order on November 13, 2001 to turn a former U.S. coaling and refueling base in Guantanamo Bay, Cuba into a military jail for prisoners of the War on Terrorism.  Besides housing prisoners, there were to be military tribunals and swift justice.  “Two out of three ain’t bad.”  President Bush did get his jail and his tribunals, but justice has been anything but swift.  Twelve years later, seven detainees out of 779 men held at Guantanamo have been convicted and sentencedAhmed Khalfan Ghailani is the only detainee transported to the US to face trial in federal court.  His story highlights just some of the difficulties inherent in this transfer.

Professor Stephen Vladeck describes the process of what happens to military detainees who are prosecuted in civilian courts as “cross-ruffing.”  The government interrogates terrorism suspects under military detention at the point of capture.  The CIA holds them long enough to extract necessary intelligence information and then suspects are later prosecuted in the civilian justice system without necessarily being subject to the same criminal procedure constraints on detention prior to trial of the civilian justice system.  The government minimizes its weaknesses with this transfer and prosecutors take advantage of it.

This paper will briefly give a factual and procedural account of United States v. Ghailani, in Part II,  critically examine the reasons for the delay of Ghailani’s trial in Part III; and briefly concludes with just what happened to Ghailani in Part IV.

II.        Background

On August 24, 2013, the Second Circuit, in an opinion written by Judge José A. Cabranes, affirmed the Southern District of New York’s conviction on a single conspiracy charge of Ahmed Ghailani.  Ghailani was Osama bin Laden’s former cook and bodyguard who had “procured [for his co-conspirators] a number of items necessary for building an explosive device on the back of a truck.”  Ghailani was indicted in absentia in December 1998 for conspiracy and 281 other charges relating to the August 7, 1998 simultaneous bombings of the United States embassies in Nairobi and Dar es Salaaam, Kenya.  The two bombings resulted in the death of 224 people and injuries of thousands more.  Ghailani was captured by the CIA in Pakistan on July 25, 2004, detained as an “enemy combatant,” and subjected to “enhanced” interrogation techniques over the next two years “to obtain critical intelligence.”  He was transferred to the Department of Defense’s custody in September 2006.  Ghailani was given a Combatant Status Review Tribunal hearing at Guantanamo that confirmed his classification as an “enemy combatant.”  In 2008, President Barack H. Obama suspended all military commission proceedings, including Ghailani’s.  In 2009, Ghailani’s third habeas corpus petition filed in the Southern district of New York was granted and arraigned on the original 1998 indictment of 282 counts.  On January 25, 2011, Ghailani was convicted “on one count of conspiring to destroy United States buildings and property, in violation of 18 U.S.C. § 844(f), (n)” and was sentenced to life in prison and to pay nearly $34 million in restitution.

On appeal, Second Circuit upheld the verdict and sentence, holding:

(1) In the circumstances presented here, the District Court did not err (or “abuse its discretion” as that term is properly understood) in determining that the nearly five-year delay between the defendant’s capture and his arraignment, during which time he was interrogated as an enemy combatant and detained at Guantanamo Bay, did not constitute a violation of the Speedy Trial Clause of the Sixth Amendment.

(2) The District Court did not err either in charging the jury with a conscious avoidance instruction or in formulating that instruction.

(3) The defendant’s sentence of life imprisonment, based on a conviction for conspiring to destroy United States buildings and property and directly or proximately causing the deaths of 224 people, was neither procedurally nor substantively unreasonable.

III.       Speedy Trial

The Second Circuit analyzed the Ghailani record for the four factors from the Supreme Court’s decision in Barker v. Wingo,

that must be considered in analyzing whether a defendant’s constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right in the run-up to the trial; and (4) whether the defendant was prejudiced by the failure to bring the case to trial more quickly.

The first Barker factor is a threshold test.  The government did not contest that a delay of five years was “presumptively prejudicial.”  The trial court evaluated the reasons for delay by dividing this period in to two different periods:  his 23 months in CIA detention and his 37 months in Guantanamo Bay.  The trial court found

the decision to place Ghailani in the CIA Program was made in the reasonable belief that he had valuable information essential to combating Al Qaeda and protecting national security and because the evidence show[ed] that the government had reason to believe that this valuable intelligence could not have been obtained except by putting Ghailani into that program and that it could not successfully have done so and prosecuted him in federal court at the same time.

The Barker test does account for the public interests in favor of delay.  The Supreme Court has found that “[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”  The government caused the three year delay following his CIA detention in Pakistan and transfer to Guantanamo. The appellate court held this delay against the government in the Barker balancing test.  The Second Circuit adopted the trial court’s finding that because Ghailani could not be faulted for not demanding a trial sooner than he did nor could the government be faulted for ignoring such demands, the invocation of this right as a factor does not cut against either side.  The fourth Barker factor, whether the defendant was prejudiced by the failure to bring the case to trial more quickly, deserves a closer look that the “rather cursory analysis” given to it by the Second Circuit Court.

A.        Prejudice

The trial court treated Ghailani like a regular civilian case.  Any physical or emotional abuse he may have received at the hands of the CIA did not prejudice his case for the purposes of a Barker analysis because his CIA detention was not related to his pretrial detention.  The court removed his two-year CIA detention from its Barker analysis. The trial court also then found the subsequent three year period as non-prejudicial.  Ghailani identified no witnesses that could not testify because of the delay. Also, he did not any suffer anxiety over a looming death penalty during the course of the delay as the government did not pursue a death sentence.

On appeal, Ghailani argued that the trial court should have considered the prejudiced created by his treatment by the CIA in Pakistan. The “District Court concluded, however, that whatever treatment Ghailani endured at the hands of the CIA was not caused by the delay in his trial and therefore not relevant to the Barker analysis.  The circuit court agreed.

The Supreme Court has consistently emphasized three interests of a defendant that may be prejudiced by trial delay: oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the accused’s defense will be impaired by dimming memories and loss of exculpatory evidence.

Ghailani argued he suffered “oppressive incarceration” before his trial ever took place.  The techniques employed by the CIA were “designed to psychologically dislocate the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist the United States government’s efforts to obtain critical intelligence,” and it worked.  The circuit court defined “pretrial incarceration” differently.  The CIA detention, although it occurred prior to Ghailani’s trial, did not count as pretrial detention because the CIA investigation was independent of the trial itself and not a prelude to Ghailani’s trial.  Just as federal courts do not count state incarceration prior to federal trials as pretrial incarceration in speedy trial analyses, the CIA would have detained Ghailani for intelligence gathering purposes regardless of his impending trial.  The Second Circuit court held the Speedy Trial Clause protects against the prejudice of trial delays, not harmful interrogation.

This kind of doublespeak and compartmentalization on the part of the government leads to an interesting result.  By finding that Ghailani’s trial was not delayed because of the CIA detention, the court effectively ignores the fact that, along with his military detention in Guantanamo, the CIA detention was the delay in Ghailani’s trial.  Without Ghailani’s involvement in the conspiracy he was convicted of, he may never have been a high-value target for the CIA.  There would have been less reason to detain Ghailani or interrogate him using “enhanced” techniques to obtain valuable intelligence.  The court splits Ghailani’s detention into two separate periods:  one period of pre-pretrial CIA detention for reasons of national security necessity and another period of pretrial military detention all of which took place before the beginning of his civilian trial.  The courts, of course, do not address what happens when the government attempts to introduce into civilian court evidence obtained by CIA interrogation.

This is not the first time five years has been ruled speedy.  However, it is the first time a defendant’s first 23 months of a five-year delay was in CIA custody before being brought before a civilian court.  In the transfer between the two paradigms of justice, military and civilian, the government managed to round off enough rough edges around the square peg that is Ghailani’s military case to make him fit into the round hole of a civilian court.  This decision tells us nothing about the limits of the government to detain and prosecute terrorism suspects, much less how to deter potential abuses “crossruffing” may engender going forward.  The courts have yet to identify any relief or remedies to deter governmental abuse.  The closing of Guantanamo also offers no solution to cases like Ghailani as it would not have affected his CIA detention and interrogation at the point of capture. This conversation continues even if the jailer chooses to give up its jail.

IV.       Conclusion

The Second Circuit successfully applied the Sixth Amendment Speedy Trial Clause in Ghailani by ignoring the unique circumstances that brought Ahmed Ghailani into the civilian courthouse in the first place, namely his CIA detention and “enhanced” interrogation.


Article 2(4) and the Rise of the Non-State Actor

In 1993, Samuel Huntington published The Clash of Civilizations. Huntington theorized that nation states will remain powerful actors in world affairs, but the principal conflicts of global politics will occur between nations and groups of different civilizations. While Huntington’s theory is not perfectly applicable to the world today, it is not without salience. A considerable portion of contemporary conflict arises from the action and reaction to non-state actors.

The rise of the non-state actor in global conflict is problematic because it threatens the integrity of certain aspects of the UN Charter which was written, drafted, and ratified during a time when the “principal conflicts of global politics” were between nation states. The UN Charter, Art 2(4) reads: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Contemporary national security concerns put significant stress on this section of the charter. Targeted killing and capture may be the most effective and efficient form of defense the United States has against non-state aggressors such as al-Qaeda, but such practice often conflicts with Article 2(4).

Article 2(4) does not permit the targeted killing or capture of individuals residing in other states without consent, as such use of force would violate the other state’s sovereignty. However, in instances of targeted killing or capture, the United States has generally circumvented the issue of state sovereignty by relying on the 2001 Authorization for the Use of Military Force (AUMF) or Article 51 of the UN Charter.

Washington asserts the “right to self-defense” under Article 51 permits the killing or capture of high-level al-Qaeda operatives in other states, regardless of that state’s consent. This broad interpretation of Article 51, as well as assertions of justification under domestic law (AUMF), suggests the rise of non-state actors makes state sovereignty and Article 2(4) only a secondary concern.

On October 5, 2013, U.S. forces captured al-Qaeda leader Nazih Abdul-Hamed al-Ruqai, commonly known as Abu Anas al-Liby outside of Tripoli. Anas al-Liby is accused of masterminding the bombing of U.S. embassies in Kenya and Tanzania in 1998. Subsequently, he was indicted in a federal court in Manhattan and placed on the FBI’s most wanted list. Washington’s assertion that al-Liby was a “legal and appropriate target” is valid; given the charges against al-Liby, the United States had the right and the obligation to take the necessary steps to apprehend him. Under domestic law, the United States committed no error in his capture. Furthermore, a broad interpretation of Article 51 might also affirm the legality of this capture. Given al-Liby’s alleged involvement in past attacks and his association with al-Qaeda, the United States could argue the capture was a necessary and proportionate force made in self-defense.

However, under Article 2(4), al-Liby’s capture loses international legality. Libya is a member state of the United Nations, making the use of force by another state in Libyan territory absent Libya’s consent expressly prohibited by Article 2(4). In al-Liby’s case, the issue of consent is unsettled:  Libya maintains that it did not authorize the “kidnapping” of al-Liby, while U.S. officials suggest that Libya did consent to the capture operation. By contrast, a failed raid targeting al-Shabab leader, Ahmed Godane, in Somalia coincided with the raid in Libya but had the express consent of Somalia’s prime minister.

At best the international legality of al-Liby’s capture is unclear under Article 2(4).  Yet according to legal scholar, Stephen Vladeck, “[T]he legality of the raid under international law shouldn’t—and almost certainly won’t—bear on the ability of the United States to try al-Libi in a criminal court”. Vladeck supports this statement by citing the Ker-Frisbie doctrine, which holds that criminal suspects cannot object to how they got into court, even if there are international law concerns with the means by which they were captured.

Using domestic law to circumvent an international standard that does not effectively consider current international circumstances may very well be the best way to serve U.S. national security concerns. However, such a practice sets a precedent that the U.S. doesn’t necessarily want other states to follow. While the increasingly salient role of non-state actors in global conflict puts pressure on Article 2(4), state sovereignty is still an important concern. In some situations, such as the capture of al-Liby, breaking from the language of Article 2(4) supplies the best remedy for a security threat. Nonetheless, the circumvention of Article 2(4) creates legal ambiguity around an international standard that carries with it significant national security interests.

House Begins Hearings on Domestic Radicalization of Muslims

On March 10, Representative Peter King (R-NY), chairman of the House Committee on Homeland Security, opened a series of hearings exploring, “The Extent of Radicalization in the American Muslim community and That Community’s Response.” The wisdom of holding these hearings was the subject of much debate in the days preceding. Congressional Democrats, including John Dingell (D-MI) who represents a large Muslim community, warned that the hearings should not question the loyalty of Muslims or Arabs as a group. In addition, Attorney General Eric Holder warned, “We don’t want to stigmatize, we don’t want to alienate entire communities.”

However, Representative King refused to back down, stating, “To back down would be a craven surrender to political correctness and an abdication of what I believe to be the man responsibility of this committee—to protect America from a terrorist attack.” Representative King cited Attorney General Holder in his statement opening the hearings, noting that Mr. Holder said the number of young Americans being radicalized, “keeps him awake at night.” Representative King also noted that Department of Homeland Security Secretary Janet Napolitano has said the threat to the United States is as high as it has been since September 11, 2001 because of increased levels of radicalization within the U.S. Representative King closed his statement by recalling the days following the September 11th attacks, urging people not to, “allow the memories of that tragic day fade away.”

The hearing itself was more political theater than substantive hearing. Melvin Bledsoe, the father of Carlos Bledsoe, testified about his son’s conversion to Islam and radicalization which culminated in Carlos shooting up a U.S. military recruiting station in Arkansas, killing one soldier. Abdirizak Bihi, the uncle of a Minnesota man who was radicalized and encouraged to fight in a Somali militia, also described how the process of radicalization led to his nephew’s death. For a more complete record of the testimony given, check out the

“>Washington Post.

However, the majority of the Committee’s time was spent arguing over whether it was proper to hold these hearings at all. Representative Keith Ellison (D-MN), himself a Muslim, recounted the story of Mohammad Hamdani, a Muslim first responder who died in the September 11th attacks. Representative Ellison told of how Mr. Hamdani was suspected of a connection to the attacks until his remains were found and said that Hamdani, “gave his life for other Americans.” Representative Sheila Jackson Lee (D-TX) criticized the hearings as, “a way to demonize and castigate,” American Muslims. Representative Bennie Thompson (D-MS) warned that extremists could use the hearings as propaganda to inspire young people to their cause.

The Economist criticized Representative King for having a “conveniently elastic” attitude toward terrorism. The magazine noted that King, an Irish-Catholic, held strong sympathies with the Irish Republican Army during the 1980s, even going as far as comparing Gerry Adams to George Washington. The article also noted a Triangle Centre on Terrorism study which indicated that 48 of the 120 Muslims who have been suspected of plotting terrorist attacks since 2001 were turned in by other Muslims. However, the article also noted that high ranking Al-Qaeda members, such as Anwar al-Awlaki and Adnan Shukrijumah are U.S. citizens who grew up in New Mexico and New York respectively.

It is important to note that these hearings are not the first of their kind. Senator Joe Liberman (I-CT) and former Representative Jane Harman (D-CA), held several hearings on extremism and its threat to the U.S. However, the difference between those hearings and those led by Representative King is that they did not specifically focus on the threat from Muslims in the U.S.

These hearings raise serious concerns about national security as well as a host of personal freedoms, including freedom of religion and freedom from discrimination. The manner in which the U.S. counters the continuing domestic threat from Al-Qaeda impacts both the rights and safety of its citizens as well as its international credibility in leading the fight against terrorism.

zp8497586rq