Terrorism Issues, Policies and Legislation [1 ed.] 9781622570829, 9781612093277

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Copyright © 2011. Nova Science Publishers, Incorporated. All rights reserved. Terrorism Issues, Policies and Legislation, Nova Science Publishers, Incorporated, 2011. ProQuest Ebook Central,

Copyright © 2011. Nova Science Publishers, Incorporated. All rights reserved. Terrorism Issues, Policies and Legislation, Nova Science Publishers, Incorporated, 2011. ProQuest Ebook Central,

TERRORISM, HOT SPOTS AND CONFLICT-RELATED ISSUES

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TERRORISM ISSUES, POLICIES AND LEGISLATION

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TERRORISM, HOT SPOTS AND CONFLICT-RELATED ISSUES

TERRORISM ISSUES, POLICIES AND LEGISLATION

BARRY J. POURER

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EDITOR

Nova Science Publishers, Inc. New York Terrorism Issues, Policies and Legislation, Nova Science Publishers, Incorporated, 2011. ProQuest Ebook Central,

Copyright © 2011 by Nova Science Publishers, Inc. All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. For permission to use material from this book please contact us: Telephone 631-231-7269; Fax 631-231-8175 Web Site: http://www.novapublishers.com

NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers‘ use of, or reliance upon, this material. Any parts of this book based on government reports are so indicated and copyright is claimed for those parts to the extent applicable to compilations of such works. Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication.

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This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS. Additional color graphics may be available in the e-book version of this book.

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA Terrorism issues, policies, and legislation / editor, Barry J. Pourer. p. cm. -- (Terrorism, hot spots, and conflict-related issues) Includes bibliographical references and index. ISBN 978-1-62257-082-9 (E-Book) 1. Terrorism. 2. Terrorism--Prevention--Law and legislation. I. Pourer, Barry J. HV6431.T477 2011 363.325'1561--dc22 2011003497

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CONTENTS Preface Chapter 1

Chapter 2

Chapter 3

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Chapter 4

vii Analysis of Selected Legislative Proposals Addressing Guantanamo Detainees Anna C. Henning Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009 Edward C. Liu Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court Jennifer K. Elsea, Michael John Garcia and Kenneth R. Thomas Summary of the White House Review of the December 25, 2009 Attempted Terrorist Attack Office of the Press Secretary

Chapter 5

Ocean Piracy and Its Impact on Insurance Rawle O. King

Chapter 6

Latin America: Terrorism Issues Mark P. Sullivan

Chapter 7

Combating Terrorism: The United States Lacks Comprehensive Plan to Destroy the Terrorist Threat and Close the Safe Haven in Pakistan‘s Federally Administered Tribal Areas United States Government Accountability Office

Chapter 8

Food Terrorism in Nigeria: Fears, Possibilities and Action Nwoko Kenneth Chukwuemeka

Index

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11

23

85 93 101

109 133 145

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PREFACE This new book examines a variety of issues related to terrorism on a global scale, as well as the policies and legal actions surrounding these issues. Topics discussed include an analysis of selected legislative proposals addressing Guantanamo detainees; ocean piracy; terrorism issues in Latin America; enemy combatant detainees and the lack of a comprehensive plan to destroy the terrorist threat in Pakistan. Chapter 1 - Several bills introduced during the 111th Congress address the detention of suspected enemy belligerents held at the U.S. Naval Station in Guantanamo Bay, Cuba. This report identifies selected legislative proposals and analyzes pertinent legal implications. For detailed explorations of the legal issues raised by proposals addressing closure of the Guantanamo detention facility and interrogation techniques, see CRS Report R40 139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia, et. al. and CRS Report RL33 180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea, Kenneth R. Thomas, and Michael John Garcia. On January 22, 2009, President Obama issued three executive orders affecting Guantanamo detainees. Some legislative proposals would effectuate or make permanent the policies contained in the executive orders. Other bills offer alternative approaches to the disposition of the detainees. The proposals pursue dramatically different goals, ranging from mandating closure of the Guantanamo detention facility to precluding closure through various requirements and restrictions, and offering various approaches to detainee treatment, interrogation methods, and jurisdictional concerns. To date, most bills have been referred to committees and no further legislative action has been taken. Chapter 2 - Several recent amendments to the Foreign Intelligence Surveillance Act (FISA) will sunset on December 31, 2009. H.R. 1467, introduced in the 111th Congress, would extend these three provisions until December 31, 2019. Section 6001(a) of the Intelligence Reform and Terrorism Protection Act (IRTPA), also known as the ―lone wolf‖ provision, changed the rules regarding the types of individuals that could be targets of FISA-authorized searches. It permits surveillance of non-U.S. persons engaged in international terrorism, without requiring evidence linking those persons to an identifiable foreign power or terrorist organization. Section 206 of the USA PATRIOT ACT amended FISA to permit multipoint, or ―roving,‖ wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified.

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Barry J. Pourer

Section 215 of the USA PATRIOT ACT enlarged the scope of documents that could be sought under FISA, and lowered the standard required before issuance of a court order compelling the production of documents. While these provisions will cease to be prospectively effective on December 31, 2009, a grandfather clause permits them to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date. Chapter 3 - After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called ―Combatant Status Review Tribunals‖ (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue relief in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. In December 2005, Congress passed the Detainee Treatment Act of 2005 (DTA) to divest the courts of jurisdiction to hear some detainees‘ challenges by eliminating the federal courts‘ statutory jurisdiction over habeas claims by aliens detained at Guantanamo Bay (as well as other causes of action based on their treatment or living conditions). The DTA provided instead for limited appeals of CSRT determinations or final decisions of military commissions. After the Supreme Court rejected the view that the DTA left it without jurisdiction to review a habeas challenge to the validity of military commissions in the case of Hamdan v. Rumsfeld, the 109th Congress enacted the Military Commissions Act of 2006 (MCA) (P.L. 109-366) to authorize the President to convene military commissions and to amend the DTA to further reduce access to federal courts by ―alien enemy combatants,‖ wherever held, by eliminating pending and future causes of action other than the limited review of military proceedings permitted under the DTA. In June 2008, the Supreme Court held in the case of Boumediene v. Bush that aliens designated as enemy combatants and detained at Guantanamo Bay have the constitutional privilege of habeas corpus. The Court also found that MCA § 7, which limited judicial review of executive determinations of the petitioners‘ enemy combatant status, did not provide an adequate habeas substitute and therefore acted as an unconstitutional suspension of the writ of habeas. The immediate impact of the Boumediene decision is that detainees at Guantanamo may petition a federal district court for habeas review of the legality and possibly the circumstances of their detention, perhaps including challenges to the jurisdiction of military commissions. President Barack Obama‘s Executive Order calling for an at least temporary halt in military commission proceedings and the closure of the Guantanamo detention facility is likely to have implications for legal challenges raised by detainees. In March 2009, the Obama Administration announced a new definitional standard for the government‘s authority to detain terrorist suspects, which does not use the phrase ―enemy combatant‖ to refer to persons who may be properly detained. The new standard is similar in scope to the ―enemy combatant‖ standard used by the Bush Administration to detain terrorist suspects. The standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide ―substantial support‖ to such groups, regardless of whether such persons were captured away from the battlefield in Afghanistan.

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Preface

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Chapter 4 - Following the December 25, 2009 attempt to bring down the flight by detonating an explosive device onboard flight 253, the President directed that Assistant to the President for Homeland Security and Counterterrorism John Brennan conduct a complete review of the terrorist watchlisting system and directed that key departments and agencies provide input to this review. What follows is a summary of this preliminary report. First, it should be noted that the work by America's counterterrorism (CT) community has had many successes since 9111 that should be applauded. Our ability to protect the U.S. Homeland against terrorist attacks is only as good as the information and analysis that drives and facilitates disruption efforts. The thorough analysis of large volumes of information has enabled a variety of departments and agencies to take action to prevent attacks. On a great number of occasions since 9111, many of which the American people will never know about, the tremendous, hardworking corps of analysts across the CT community did just that, working day and night to track terrorist threats and run down possible leads in order to keep their fellow Americans safe. Yet, as the amount of information continues to grow, the challenge to bring disparate pieces of information - about individuals, groups, and vague plots - together to form a clear picture about the intentions of our adversaries grows as well. These actions, informed by the excellent analytic work of the very same individuals and structure that is under review, have saved lives. Unfortunately, despite several opportunities that might have allowed the CT community to put these pieces together in this case, and despite the tireless effort and best intentions of individuals at every level of the CT community, that was not done. As a result, the recent events highlight our need to look for ways to constantly improve and assist our CT analysts, who are at the forefront of providing warning of terrorist attacks and keeping Americans safe. Chapter 5 - Many Members of 111th Congress are concerned about the sharp rise in pirate attacks in the strategic waterways in the Gulf of Aden off the East coast of Africa. The hijacking of a Saudi Arabia-owned oil tanker, Sirius Star, off the coast of Kenya on November 15, 2008, by pirates, and its release after a $3 million ransom payment on January 8, 2009, was another in a series of seizures and releases that have focused worldwide attention on economic and humanitarian threats posed by pirates to the global seafaring community and the smooth flow of international trade. Given the sharp increase in the number of pirate attacks, the cost of transporting cargo in international waters could rise dramatically because of the sharp increase in ocean marine insurance rates for ships transiting the Gulf of Aden. Commercial insurers, for example, could require a special ―war risk‖ insurance premium costing an additional ten of thousands of dollars a day. These additional costs could adversely impact international trade during the current global economic slowdown. In addition to proposals for military deterrence and diplomatic engagements, policymakers may elect to consider adjustments to the federal statute (Title XII of the Merchant Marine Act of 1936, as amended) that authorizes the federal government to underwrite marine war risk insurance in circumstances such as piracy. Title XII, administered by the U.S. Department of Transportation‘s Maritime Administration, authorizes the federal government to act as an insurer or reinsurer of last resort to facilitate waterborne commerce should private ocean marine insurance markets not be able to ensure that financial losses due to war risks (and piracy) will be largely covered. Policymakers may also elect to maintain the status quo on this statutory authority. The property and casualty insurance industry policyholder surplus is calculated to be approxi-

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mately $505 billion (as of June 2008). Vessel hull and war risk premiums in the U.S. market paid to insurers totaled approximately $350 million in 2007, and the total value of cargo insurance premiums paid in that year was approximately $833 million, according to industry data. Some may contend, as a result, that the insurance industry appears to be financially capable of handling U.S. exposure to the current piracy threat and that the existing policy ―backstop‖ will be adequate. Chapter 6 - Since the September 2001 terrorist attacks on New York and Washington, U.S. attention to terrorism in Latin America has intensified, with an increase in bilateral and regional cooperation. In its April 2008 Country Reports on Terrorism, the State Department highlighted threats in Colombia and the tri-border area of Argentina, Brazil, and Paraguay. Cuba has remained on the State Department‘s list of state sponsors of terrorism since 1982, which triggers a number of economic sanctions. U.S. officials have expressed concerns over the past several years about Venezuela‘s lack of cooperation on antiterrorism efforts, its relations with Cuba and Iran, and President Hugo Chávez‘s sympathetic statements for Colombian terrorist groups. In May 2008, for the third year in a row, the Department of State, pursuant to Arms Export Control Act, included Venezuela on the annual list of countries not cooperating on antiterrorism efforts. In the 110th Congress, the House approved H.Con.Res. 188 and H.Con.Res. 385, both condemning the 1994 bombing of the Argentine-Israeli Mutual Association in Buenos Aires, and H.Res. 435, expressing concern over the emerging national security implications of Iran‘s efforts to expand its influence in Latin America, and emphasizing the importance of eliminating Hezbollah‘s financial network in the tri-border area. The Senate approved S.Con.Res. 53, condemning the hostage-taking of three U.S. citizens for over four years by the Revolutionary Armed Forces of Colombia (FARC). To date in the 111th Congress, one legislative initiative has been introduced, H.R. 375 (RosLehtinen), with the goal of bolstering capacity and cooperation of Western Hemisphere countries to counter current and emerging threats, promoting Western Hemisphere cooperation to prevent the proliferation of nuclear, chemical, and biological weapons, and securing universal adherence to agreements regarding nuclear proliferation. For additional information, see CRS Report R40193, Cuba: Issues for the 111th Congress, and CRS Report RL32488, Venezuela: Political Conditions and U.S. Policy. Chapter 7 - Since 2002, destroying the terrorist threat and closing the terrorist safe haven have been key national security goals. The United States has provided Pakistan, a key ally in the war on terror, more than $10.5 billion for military, economic, and development activities. Pakistan‘s Federally Administered Tribal Areas (FATA), which border Afghanistan, are vast unpoliced regions attractive to extremists and terrorists seeking a safe haven. GAO was asked to assess (1) the progress in meeting these national security goals for Pakistan‘s FATA, and (2) the status of U.S. efforts to develop a comprehensive plan for the FATA. To address these objectives, GAO compared national security goals against assessments conducted by U.S. agencies and reviewed available plans. Chapter 8 - The September 11, 2001 attacks on the United States, the subsequent anthrax follow-up and the US embassy attacks in Kenya not only demonstrated the extent of the possibilities of terrorist attacks on both the weak and strong and even the most sophisticated security conscious of nations, but also the extent, methods and forms to which the perpetrators can employ to make their statement or achieve their objectives. These and other

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events around the world reflect the emerging typologies of the phenomenon in the contemporary times. The US Food and Drug Administration (FDA) recently raised fears of a high likelihood, in the future, of food terrorism or an incident of unintentional food contamination that would result in serious food borne illness that would affect a significant number of people. The question then is, since no country is isolated in international politics and bearing in mind the symbolic nature of most terrorist acts; what are the possibilities of such attacks on Nigeria‘s food supply and what are the emergency response capabilities of the country in such occurrences. The geopolitics of Nigeria and her status as the most populous black nation in the world as well as the inherent religious intolerance in her domestic politics in particular Maitasina riot, Bokoharam disturbances and Talakuta riot are all pointers to the precarious position of the country on the terrorist drawing board. This work analyzes the possibilities of food terrorism in Nigeria. It examines the factors that heighten the susceptibility of the country to such attacks and evaluates the country‘s emergency response capabilities in the face of such reality. The paper argues that just as other countries have learnt from the US experience, that Nigeria should also perfect her strategies to counter or manage such eventualities. Versions of these chapters were also published in International Journal of Terrorism and Political Hot Spots, Volume 5, Numbers 1-4, published by Nova Science Publishers, Inc. They were submitted for appropriate modifications in an effort to encourage wider dissemination of research.

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Chapter 1

ANALYSIS OF SELECTED LEGISLATIVE PROPOSALS ADDRESSING GUANTANAMO DETAINEES Anna C. Henning*

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SUMMARY Several bills introduced during the 111th Congress address the detention of suspected enemy belligerents held at the U.S. Naval Station in Guantanamo Bay, Cuba. This report identifies selected legislative proposals and analyzes pertinent legal implications. For detailed explorations of the legal issues raised by proposals addressing closure of the Guantanamo detention facility and interrogation techniques, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia, et. al. and CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea, Kenneth R. Thomas, and Michael John Garcia. On January 22, 2009, President Obama issued three executive orders affecting Guantanamo detainees. Some legislative proposals would effectuate or make permanent the policies contained in the executive orders. Other bills offer alternative approaches to the disposition of the detainees. The proposals pursue dramatically different goals, ranging from mandating closure of the Guantanamo detention facility to precluding closure through various requirements and restrictions, and offering various approaches to detainee treatment, interrogation methods, and jurisdictional concerns. To date, most bills have been referred to committees and no further legislative action has been taken.

INTRODUCTION In 2001, Congress authorized the President‘s use of ―all necessary and appropriate force‖ against those responsible for the 9/11 terrorist attacks.1 Pursuant to that authority, the United

*

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States has captured suspected al Qaeda and Taliban members and detained them at several locations, including the U.S. Naval Station at Guantanamo Bay, Cuba. Of the nearly 800 alleged enemy combatants whom the United States has detained at Guantanamo throughout the course of post-9/11 military operations, all but approximately 240 have been released or transferred from the base. For the remaining Guantanamo detainees, practical and legal hurdles, including national security concerns and questions regarding detainees‘ rights under international law and the U.S. Constitution, have delayed prosecutions and made transfers difficult.2 Highlighting the prominence of the issue, President Obama‘s first executive orders, signed on January 22, 2009, address the Guantanamo detention facility and Guantanamo detainees. To ―promptly‖ close the detention facility and ―in order to effect the appropriate disposition of‖ Guantanamo detainees, one executive order requires closure of the detention facility as soon as practicable, and no later than January 22, 2010.3 It also halts (at least temporarily) all proceedings before military commissions.4 A second executive order limits methods for interrogating persons in U.S. custody to those listed in the Army Field Manual on Human Intelligence Collector Operations, although it provides an exception for interrogations by the Federal Bureau of Investigation, stating that the FBI may ―continu[e] to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.‖5 A third executive order establishes the Special Task Force on Detainee Disposition, which is tasked with ―identif[ying] lawful options‖ for the disposition of Guantanamo detainees and others captured by the United States.6 Because executive orders can be revoked by subsequent presidential directives, legislation would be necessary to make the President‘s policies permanent. Likewise, Congress could reverse or adjust the approach taken by the President in any area in which it has the authority to act. Some bills introduced both before and after the President signed the executive orders would effectuate goals contained in the executive orders, whereas others offer alternative solutions or are perhaps intended to be emblematic of key controversies surrounding closure of the detention facility. 1

2

3

4

5

6

Authorization to Use Military Force, P.L. 107-40 (2001). The authority applies to ―nations, organizations, or persons‖ who ―planned, authorized, committed, or aided the terrorist attacks‖ and to people who harbored the perpetrators of the attacks. For more detailed background information and an analysis of legal issues implicated by the potential closure of Guantanamo, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia et al.. Executive Order, Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, January 22, 2009, available at http://www.whitehouse.gov/the _press_office/ Closure _Of _Guantanamo _Detention _Facilities/ Id. Military commissions were part of the system created by the Military Commissions Act of 2006, P.L. 109-3 66, to prosecute and try Guantanamo detainees. Although the Supreme Court has struck down the provisions in the Military Commissions Act that preclude Guantanamo detainees from pursuing habeas corpus challenges to their continued detention, see Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229 (2008), the act‘s basic framework remains. For more information, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia et al. Executive Order, Ensuring Lawful Interrogations, January 22, 2009, available at http://www.whitehouse. gov/ the_press_office/EnsuringLawfulInterrogations/; Army Field Manual, section FM 2-22.3, Human Intelligence Collector Operations, issued by the Department of the Army on September 6, 2006. Executive Order, Review of Detention Policy Options, January 22, 2009, available at http://www.white house.gov/the_press_office/ReviewofDetentionPolicyOptions/.

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Analysis of Selected Legislative Proposals Addressing Guantanamo Detainees

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This report discusses the approaches that selected legislative proposals take regarding Guantanamo detainees. Several bills discussed in this report would affect detainees held in places other than Guantanamo. This broad scope seems appropriate to address issues for which the practical and legal analyses are not specific to Guantanamo; for example, proposals addressing interrogation techniques might appropriately apply to all persons held in U.S. custody. However, the detentions at Guantanamo have arguably assumed unique significance in international relations and public perception. In addition, existing statutes such as the Military Commissions Act address Guantanamo detainees in particular. For those reasons, some bills propose repeals of existing statutes or other actions that are specific to Guantanamo detainees.

LEGISLATIVE PROPOSALS IN THE 111TH CONGRESS Legislative proposals introduced during the 111th Congress offer dramatically different approaches to the disposition and treatment of Guantanamo detainees.7 They address a range of issues, including closure of the base, transfer of detainees to the United States, detainee treatment and prosecution, and jurisdictional matters.

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Bills Requiring or Delaying Closure Some bills would, if enacted, direct the President to close the Guantanamo detention facility within a given time frame. By requiring closure of the base within 180 days of enactment, the Interrogation and Detention Reform Act of 2008, H.R. 591, gives the shortest timeframe.8 The Terrorist Detainees Procedures Act of 2009, H.R. 1315, provides a target date slightly sooner than the date set by the President‘s executive order.9 By directing the President to ensure that no detainee is held at Guantanamo after December 31, 2009, it would effectively halt detentions at Guantanamo ―as soon as practicable‖ or by that date. Two companion bills, S. 147 and H.R. 374, require closure within one year.10 The companion bills‘ timeline corresponds with the one year timetable set in President Obama‘s executive order, although the one-year mark set by the bills would track the date of the legislation‘s enactment.11 In introductory remarks on H.R. 374, Representative Harman explained that closure was necessary because the detention facility is ―so widely viewed as illegitimate, so plainly inconsistent with America‘s proud legal traditions, that it has become a stinging symbol of our tarnished standing abroad.‖12 7

Although some proposals would affect people detained at other locations, this report is limited to a discussion of provisions that address Guantanamo. 8 Interrogation and Detention Reform Act of 2008, H.R. 591, 111th Cong. (2009). 9 Terrorist Detainees Procedures Act of 2009, H.R. 1315, 111 th Cong. (2009). 10 Lawful Interrogation and Detention Act, H.R. 374, 111 th Cong. (2009); Lawful Interrogation and Detention Act, S. 147, 111th Cong. (2009). 11 When introducing S. 147 on the Senate floor, Senator Feinstein explained that the legislation is ―fully consistent with the policies and intentions of President-elect Obama.‖ 155 Cong. Rec. S132 (daily ed. Jan. 6, 2009) (statement of Sen. Feinstein). 12 155 Cong. Rec. E59 (daily ed. Jan. 9, 2009) (extended remarks of Rep. Harman).

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When introducing S. 147, Senator Feinstein noted that ―the hard part about closing Guantanamo is not deciding to go do it; it is figuring out what to do with the remaining detainees.‖13 To address such concerns, all of these bills proffer corresponding options and restrictions, discussed infra, governing the transfer and prosecution of detainees. Although it is a position that has been advocated,14 no bill strictly prohibits closure of the Guantanamo detention facility. However, S. 291 and H.R. 1069 require the President to notify, present study findings, and offer a relocation plan to the congressional committees responsible for defense at least 90 days prior to closing it.15 The study would assess ―the legal ramifications and the security, infrastructure, and other support requirements associated with closing the detention facility and transferring persons to a new detention facility.‖ The relocation plan would provide for relocating detainees in a manner consistent with the results of the study. As discussed infra, proposals have also been introduced to restrict detainees‘ transfer into the United States. These proposals might have the effect of precluding an imminent closure of the Guantanamo detention facility because legal and practical barriers could prevent transfers to locations outside the United States. For example, Article 3 of the U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and its implementing legislation prohibit the transfer of persons to countries where there are substantial grounds for believing that they would be subjected to torture.16

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Bills Restricting Transfer to or Release in the United States Prompted by perceived security risks to U.S. citizens that some argue could arise if suspected terrorists were detained or tried in the United States,17 several legislative proposals would inhibit detainees‘ transfer to or release in the United States. Perhaps anticipating separation of powers concerns that might arise if Congress directly forbade the President from transferring detainees to the United States,18 most proposals restrict relocation indirectly by prohibiting the use of federal funds, forbidding extension of immigration status, or by restricting judicial authority. 13

155 Cong. Rec. S157 (daily ed. Jan. 7, 2009) (statement of Sen. Feinstein). See, e.g., Mitch McConnell, Don‟t Close It, Wash. Post. (March 15, 2009) at A19. 15 Guantanamo Bay Detention Facility Safe Closure Act of 2009, S. 291, 111 th Cong. (2009); Guantanamo Bay Detention Facility Safe Closure Act of 2009, H.R. 1069, 111th Cong. (2009). Relevant committees would include the Senate Committee on Armed Services, the Senate Committee on Appropriations, the House Committee on Armed Services, and the House Committee on Appropriations. 16 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984). CAT Article 3 requirements were implemented by the United States pursuant to the Foreign Affairs Reform and Restructuring Act of 1998, P.L. 105-277 [hereinafter ―FARRA‖]. 17 See, e.g., Press release, Rep. J. Randy Forbes, Members Introduce Bill to Prevent Transfer of Terrorists to Virginia Prisons (Mar. 2, 2009), available at http://forbes.house.gov/News/DocumentSingle.aspx? =113008. 18 Although the war powers and foreign affairs powers are shared between the political branches, traditional notions dictate that Congress should not interfere with the President‘s direction of wartime campaigns, See Hamdan v. Rumsfeld, 548 U.S. 557, 591-92 (2006) (citing Ex Parte Milligan, 71 U.S. 2, 139-40 (1866)). However, Congress has occasionally purported to limit executive authority in the conduct of wars. See, e.g., War Powers Resolution, 50 U.S.C. §§ 1541-1548. The boundaries between executive and congressional war and foreign affairs powers are unclear, as is the scope of activities which fall under those powers in the modern war on terror. 14

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Analysis of Selected Legislative Proposals Addressing Guantanamo Detainees

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One set of bills – H.R. 148, H.R. 565, H.R. 633, and H.R. 701, H.R. 794, H.R. 817, H.R. 829, H.R. 951, H.R. 1073, H.R. 1186, and H.R. 1566 – would restrict the use of federal funds for transferring Guantanamo detainees to particular locations within the United States. Such locations include, respectively: Fort Leavenworth, Kansas; the Naval Consolidated Brig in Charleston, South Carolina; brigs in Miramar and Camp Pendleton, California; any facility in Oklahoma; the Florence Federal Correctional Complex in Colorado; any facility in Georgia; any facility in North Carolina; any facility in Florida; any facility in Arizona; any facility in Virginia; and any military installation or federal detention center in Minnesota.19 Some would also restrict the use of federal funds to construct new detention facilities or house detainees in those locations. Explaining the concern prompting one such bill, Representative Forbes of Virginia explained that Guantanamo detainees‘ suspected ―connections with terrorist organizations ... rais[es] significant security questions about moving these suspects to facilities within Virginia, especially as many of the [Virginia] facilities are within miles of neighborhoods, military bases, and schools.‖20 S. 370 and H.R. 1012 are broader in scope. S. 370 prohibits the use of federal funds to transfer detainees or construct detention facilities for them anywhere within the United States.21 H.R. 1012 prohibits the use of Department of Defense funds for such purposes and forbids the Department from coordinating with another department to effect transfers into the United States.22

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19

A bill to prohibit the use of funds to transfer enemy combatants detained by the United States at Naval Station, Guantanamo Bay, Cuba, to the United States Disciplinary Barracks, Fort Leavenworth, Kansas, H.R. 148, 111th Cong. (2009); A bill to prohibit the use of funds to transfer individuals detained by the United States at Naval Station, Guantanamo Bay, Cuba, to Naval Consolidated Brig, Charleston, South Carolina, H.R. 565, 111th Cong. (2009); A bill to prohibit the use of funds to transfer enemy combatants detained by the United States at Naval Station, Guantanamo Bay, Cuba, to the Naval Consolidated Brig, Miramar, California, or the Camp Pendleton Base Brig, Camp Pendleton, California, or to construct facilities for such enemy combatants at such locations, H.R. 633, 111th Cong. (2009); A bill to prohibit the use of funds to transfer enemy combatants detained by the United States at Naval Station, Guantanamo Bay, Cuba, to any facility in Oklahoma, or to construct any facility for such enemy combatants in Oklahoma, H.R. 701, 111 th Cong. (2009); A bill to prohibit the use of funds to transfer enemy combatants detained by the United States at Naval Station, Guantanamo Bay, Cuba, to the Florence Federal Correctional Complex in Colorado, or to construct facilities for such enemy combatants at such location, H.R. 794, 111th Cong. (2009); A bill to prohibit the use of funds to transfer individuals detained at Naval Station, Guantanamo Bay, Cuba, to facilities in Georgia or to house such individuals at such facilities, H.R. 817, 111 th Cong. (2009); A bill to prohibit the use of funds to transfer individuals detained at Naval Station, Guantanamo Bay, Cuba, to facilities in North Carolina or to house such individuals at such facilities, H.R. 829, 111 th Cong. (2009); A bill to prohibit the use of funds to transfer enemy combatants detained at Naval Station, Guantanamo Bay, Cuba, to facilities in Arizona or to build, modify, or enhance any facility in Arizona to house such enemy combatants, H.R. 951, 111 th Cong. (2009); A bill to prohibit the use of funds to transfer individuals detained at Naval Station, Guantanamo Bay, Cuba, to facilities in Florida or to house such individuals at such facilities, H.R. 1073, 111 th Cong. (2009); A bill to prohibit the use of funds to transfer individuals detained at Naval Station, Guantanamo Bay, Cuba, to facilities in Virginia or to house such individuals at such facilities, H.R. 1186, 111th Cong. (2009); A bill to prohibit the use of funds to transfer individuals detained at Naval Station, Guantanamo Bay, Cuba, to facilities in Minnesota or to house such individuals at such facilities, H.R. 1566, 111 th Cong. (2009). 20 Press release, Rep. J. Randy Forbes, Members Introduce Bill to Prevent Transfer of Terrorists to Virginia Prisons (Mar. 2, 2009), available at http://forbes.house.gov/News/DocumentSingle.aspx?DocumentID =113008. 21 A bill to prohibit the use of funds to transfer detainees of the United States at Naval Station, Guantanamo Bay, Cuba, to any facility in the United States or to construct any facility for such detainees in the United States, and for other purposes, S. 370, 111th Cong. (2009). 22 Guantanamo Bay Detention Facility Safe Closure Act of 2009, H.R. 1012, 111th Cong. (2009).

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Rather than restrict the use of funds, some bills would restrict entry through provisions governing detainees‘ immigration status or restricting judicial authority. H.R. 1238 makes an alien detained at Guantanamo ―permanently ineligible‖ for both ―admission to the United States for any purpose‖ and ―parole into the United States or any other physical presence in the United States that is not regarded as an admission.‖23 Similarly, the Protection from Enemy Combatants Act, S. 108, would forbid the release by a U.S. court of any ―covered alien‖ – defined as any person who ―was detained‖ at Guantanamo – into the United States.24 It would also bar the issuance of an immigration visa or the granting of any immigration status that might facilitate a detainee‘s entry into the United States or continued presence after release from custody. However, S. 108 contains a waiver provision that would allow the President to remove the restriction where doing so would be ―consistent with the national security of the United States.‖

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Bills Permitting Detainee Transfer to the United States Several proposals contemplate the transfer, in specific circumstances, of Guantanamo detainees into the United States. Specifically, the bills requiring closure of the detention facility – S. 147, H.R. 374, H.R. 591, and H.R. 1315 – would also authorize transfer to a detention facility in the United States for criminal prosecution.25 With sponsors noting that the Guantanamo detention ―experiment‖ has lasted seven years and resulted in only three convictions,26 the bills appear to emphasize a priority on transfer for the purpose of initiating criminal prosecutions in a timely manner. Appearing to counter other lawmakers‘ concerns regarding ensuing security risks, Senator Feinstein noted that ―federal civilian or military justice systems ... have handled terrorists and other dangerous individuals before and are capable of dealing with classified evidence and other unusual factors.‖27 All of the bills also contain options for transferring detainees to international tribunals, transfer to a detainee‘s home country or a different country, and release. The bills differ in their approaches to continued preventative detention – i.e., detention for purposes other than prosecution or punishment. S. 147, H.R. 374, and H.R. 1315 would allow further preventative detention ―in accordance with the law of the armed conflict.‖ In contrast, H.R. 591 does not contain a provision expressly authorizing detainees‘ transfer to the United States for the purpose of continued preventative detention.28 23

A bill to prohibit the presence in the United States of any alien formerly detained at the Department of Defense detention facility at Naval Station, Guantanamo Bay, Cuba, H.R. 1238, 111th Cong. (2009). 24 Protection from Enemy Combatants Act, S. 108, 111th Cong. (2009). 25 Interrogation and Detention Reform Act of 2008, H.R. 591, 111th Cong. (2009); Lawful Interrogation and Detention Act, H.R. 374, 111th Cong. (2009); Lawful Interrogation and Detention Act, S. 147, 111 th Cong. (2009); Terrorist Detainees Procedures Act of 2009, H.R. 1315, 111 th Cong. (2009). However, transfer to the United States under H.R. 1315 would apply only after a panel of military judges had reviewed a detainee‘s status and determined that he was an unlawful enemy combatant. For all bills, it is unclear whether detainees might then be released into the United States if acquitted after a criminal trial. Even if the bills contemplate such release, detainees would presumably lack immigration status and be subject to U.S. immigration laws. 26 155 Cong. Rec. S157 (daily ed. Jan. 7, 2009) (statement of Sen. Feinstein). 27 Id. 28 In Hamdi v. Rumsfeld, the Supreme Court held that pursuant to the 2001 Authorization for Use of Military Force, the President may preventatively detain persons properly determined to be ―enemy combatants‖ – a category

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H.R. 1315 also differs from the other bills in that it expressly creates a preliminary step, whereby a panel of three military judges would first conduct a ―status review‖ to determine whether a detainee is an unlawful enemy combatant. The outcome of the status review would trigger the various options: whereas detainees found to be unlawful enemy combatants would be transferred for criminal prosecution or continued detention, detainees found not to be unlawful enemy combatants would be transferred to their home countries or other countries, or released.

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Bills Relating to Interrogation, Treatment, or Prosecution Several legislative proposals address the treatment or prosecution of Guantanamo (and other) detainees. Treatment is currently governed by the Detainee Treatment Act of 2005 and Common Article 3 of the Geneva Conventions.29 Pursuant to the Detainee Treatment Act of 2005, all persons in the custody or control of the U.S. military (including Guantanamo detainees) must be treated in accordance with Army Field Manual requirements.30 Under Common Article 3, detainees must be treated humanely and protected from ―violence to life and person,‖ ―cruel treatment and torture,‖ and ―outrages upon personal dignity, in particular, humiliating and degrading treatment.‖31 The same requirements would apply if detainees were transferred to the United States. In contrast, prosecution is governed by the Military Commissions Act of 2006, which addresses only detainees held at Guantanamo; inside the United States, it is unclear whether a civilian, military, or an alternative judicial process that is in accordance with constitutional rights afforded to persons located in the United States will be used to prosecute detainees. Perhaps in response to judicial opinions invalidating provisions of the Military Commissions Act32 and to concerns regarding detainee abuse,33 legislation has been introduced which would eliminate the military commissions framework for prosecution or provide additional standards governing interrogation and treatment. H.R. 591 would institute

not fully defined but which includes those captured while fighting U.S. forces in Afghanistan – for the duration of the conflict. 542 U. S. 507 (2004). Under Hamdi, it appears that Guantanamo detainees properly determined to be ―enemy combatants‖ may be held in preventative detention by military authorities even if transferred to the United States. It is unclear whether H.R. 591 would purport to reverse that grant of authority as applied to Guantanamo detainees. 29 The U.S. Supreme Court determined that Common Article 3 applies to Guantanamo detainees in a 2006 case, Hamdan v. Rumsfeld, 548 U.S. 557 (2006). 30 Section 1002 of P.L. 109-148 requires the DOD to follow the Army Field Manual for intelligence interrogation. See Department of the Army Field Manual 2-22.3 (FM 34-52), Human Intelligence Collector Operations (2006). 31 ―Common Article 3‖ refers to the third article in each of the four Geneva Conventions, the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949 (6 UST 3114); the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949 (6 UST 3217); the Convention Relative to the Treatment of Prisoners of War, August 12, 1949 (6 UST 3316); and the Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949 (6 UST 3516). 32 See Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229 (2008) (invalidating the provision in the act that purported to foreclose habeas corpus challenges brought by Guantanamo detainees). 33 See, e.g., Senate Armed Services Committee, Inquiry into the Treatment of Detainees in U.S. Custody, available with redactions at http://levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf.

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or prompt the formulation of major reforms for interrogating and prosecuting detainees.34 Referring to the ―failure of the military commissions system,‖ it contains provisions that repeal the Military Commissions Act and abolish the military commission system established by the act. Instead, prosecutions would take place in federal civilian courts or in courtsmartial proceedings. In addition, it would direct the President to establish a ―Center for Excellence in Human Intelligence Collection‖ and develop ―uniform standards for the interrogation of persons in the custody or under the effective control of the United States.‖ It would also require that interrogations be videotaped. Similarly, H.R. 1315 would repeal the Military Commissions Act.35 In place of military commissions, it proposes status review hearings, whereby a panel of three military judges would determine whether a detainee is an unlawful enemy combatant. S. 147 and H.R. 374 require that interrogations of all persons in custody of U.S. intelligence agencies be conducted in accordance with the U.S. Army Field Manual.36 The bills would foreclose the possibility, left open in President Obama‘s executive order on interrogation, that techniques other than those in the Army Field Manual could eventually be deemed appropriate for use by agencies outside the military.37 Another bill would restrict detainees‘ use of medical facilities. Finding that Guantanamo detainees ―often receive better medical treatment and food than members of the United States Armed Forces‖ and ―are often treated better than inmates in American prisons,‖ H.R. 1042 prohibits the provision of medical treatment to Guantanamo detainees in any facility where members of the armed forces also receive treatment or in any facility operated by the Department of Veteran‘s Affairs.38 It is possible that such a provision could raise concerns regarding U.S. compliance with the Common Article 3 requirement to treat detainees humanely.

Bills Addressing Executive Authority to Detain Enemy Combatants and Judicial Authority to Hear Habeas Corpus Claims The Enemy Combatant Detention Review Act of 2009, H.R. 630, ―reaffirms that the President is authorized to detain enemy combatants in connection with the continuing armed conflict with al Qaeda, the Taliban, and associated forces, regardless of the place of capture, until the termination of hostilities.‖39 This provision would reaffirm, and perhaps extend, the President‘s authority to preventatively detain enemy combatants as part of post-9/11 military operations. In Hamdi v. Rumsfeld, the Supreme Court held that the 2001 Authorization to Use Military Force authorized the President to preventatively detain enemy combatants captured 34

Interrogation and Detention Reform Act of 2008, H.R. 591, 111th Cong. (2009). Terrorist Detainees Procedures Act of 2009, H.R. 1315, 111th Cong. (2009). 36 Lawful Interrogation and Detention Act, H.R. 374, 111 th Cong; Lawful Interrogation and Detention Act, S. 147, 111th Cong. 37 Executive Order, Ensuring Lawful Interrogations, January 22, 2009, available at http://www.whitehouse. gov/the_press_office/EnsuringLawfulInterrogations/. 38 To prohibit the provision of medical treatment to enemy combatants detained by the United States at Naval Station, Guantanamo Bay, Cuba, in the same facility as a member of the Armed Forces or Department of Veterans Affairs medical facility, H.R. 1042, 111th Cong. (2009). 39 Enemy Combatant Detention Review Act of 2009, H.R. 630, 111th Cong. (2009). 35

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Analysis of Selected Legislative Proposals Addressing Guantanamo Detainees

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during hostilities in Afghanistan but did not address whether such authority extends to captures made in other locations.40 With the language ―regardless of place of capture,‖ H.R. 630 appears to authorize preventative detentions of any alleged al Qaeda or Taliban belligerent, even if captured outside military operations in Afghanistan. H.R. 630 would also amend the federal habeas corpus statute.41 For example, it would: (1) grant exclusive jurisdiction over habeas challenges to the U.S. District Court in the District of Columbia; (2) establish a rebuttable presumption that detainees are enemy combatants for the purpose of habeas review; and (3) require that habeas proceedings be stayed after charges are brought under the Military Commissions Act and until a detainee has exhausted review procedures established by that act. Because it stays habeas review only for detainees against whom charges have been brought, this proposal differs from the broader denial of habeas review which the Supreme Court struck down as constitutionally invalid in Boumediene v. Bush.42 It is unclear whether this distinction would be sufficient to withstand judicial scrutiny. The Terrorist Detainees Procedures Act of 2009, H.R. 1315, would likewise grant exclusive jurisdiction over habeas challenges to the U.S. District Court in the District of Columbia and stay pending habeas cases.43 However, in contrast to H.R. 630, it would stay habeas proceedings not to facilitate Military Commissions Act procedures but to await the outcome of status review hearings held by panels of military judges. In addition, the time period in which judges would render decisions in the status review process would be sharply limited – to 120 days from the legislation‘s enactment for all detainees.

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CONCLUSION Legislative proposals introduced during the 111th Congress offer various responses to closing the Guantanamo detention facility, transfer and disposition of detainees, and detainee treatment. Although President Obama has addressed several of these issues in executive orders, legislation may be necessary to make measures taken in an executive order permanent or to effect alternative approaches to the disposition of Guantanamo detainees. To date, none of the legislative proposals have been reported from committee. Congress‘s approach to the issue may be shaped by the recommendations of the Special Task Force on Detainee Disposition, established by executive order, which will likely address many issues raised by the legislative proposals.

40

542 U.S. 507 (2004). 28 U.S.C. §2241. 42 553 U.S. __, 128 S.Ct. 2229 (2008) (holding that the constitutional privilege of habeas corpus applies to Guantanamo detainees and that provisions in the Military Commissions Act do not provide an adequate substitute for habeas claims). For more information on the Boumediene decision, see CRS Report RL34536, Boumediene v. Bush: Guantanamo Detainees' Right to Habeas Corpus, by Michael John Garcia. 43 Terrorist Detainees Procedures Act of 2009, H.R. 1315, 111 th Cong. (2009). 41

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In: Terrorism Issues, Policies and Legislation Editor: Barry J. Pourer, pp. 11-22

ISBN: 978-1-61209-327-7 © 2011 Nova Science Publishers, Inc.

Chapter 2

AMENDMENTS TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT SET TO EXPIRE IN 2009 Edward C. Liu*

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SUMMARY Several recent amendments to the Foreign Intelligence Surveillance Act (FISA) will sunset on December 31, 2009. H.R. 1467, introduced in the 111th Congress, would extend these three provisions until December 31, 2019. Section 6001(a) of the Intelligence Reform and Terrorism Protection Act (IRTPA), also known as the ―lone wolf‖ provision, changed the rules regarding the types of individuals that could be targets of FISA-authorized searches. It permits surveillance of non-U.S. persons engaged in international terrorism, without requiring evidence linking those persons to an identifiable foreign power or terrorist organization. Section 206 of the USA PATRIOT ACT amended FISA to permit multipoint, or ―roving,‖ wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 of the USA PATRIOT ACT enlarged the scope of documents that could be sought under FISA, and lowered the standard required before issuance of a court order compelling the production of documents. While these provisions will cease to be prospectively effective on December 31, 2009, a grandfather clause permits them to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date.

OVERVIEW The Foreign Intelligence Surveillance Act (FISA) provides a statutory framework for government agencies to seek a court order from a specialized Foreign Intelligence Surveillance Court (FISC) authorizing the collection of foreign intelligence information via *

Email: [email protected]

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electronic surveillance1 or physical searches.2 FISA also provides procedures governing the use of pen registers and trap and trace devices,3 and access to certain business records for foreign intelligence collection.4 The extent to which the Fourth Amendment‘s warrant requirement is applicable to the government‘s collection of foreign intelligence is unclear.5 But, FISA‘s statutory requirements arguably provide a minimum standard that must be met before foreign intelligence searches or surveillance may be conducted by the government.6 A substantial purpose of a FISA court order must be the collection of foreign intelligence information.7 Therefore, the procedures for obtaining a court order under FISA differ from the procedures used in the criminal law enforcement context. While both FISA orders and criminal warrants incorporate impartial judicial review to determine if probable cause exists, the propositions that must be supported by probable cause are substantially different in either case. In the case of a FISA court order, the FISC must find probable cause to believe both (1) that the person targeted by the order is a foreign power or its agent, and (2) that the subject of the search (i.e., the telecommunications or place to be searched) will be used by the target.8 Three relatively recent amendments to FISA will expire on December 31, 2009. These provisions are: 

Section 6001(a) of the Intelligence Reform and Terrorism Protection Act (IRTPA), also known as the ―lone wolf‖ provision, which simplified the evidentiary showing needed to obtain a FISA court order to target individuals, other than U.S. citizens or permanent residents, engaged in international terrorism; 9

1

50 U.S.C. §§ 1801-1808 (2008). 50 U.S.C. §§ 1822-1826 (2008). 3 50 U.S.C. §§ 1841-1846 (2008). Pen registers capture the numbers dialed on a telephone line; trap and trace devices identify the originating number of a call on a particular phone line. See 18 U.S.C. § 3127(3)-(4) (2008). 4 50 U.S.C. §§ 1861-1862 (2008). 5 The Supreme Court has held that the Fourth Amendment‘s warrant requirement applies in instances of domestic security surveillance. U.S. v. U.S. District Court, 407 U.S. 297, 323-4 (1972) (also referred to as the Keith case, so named for the District Court judge that initially ordered disclosure of unlawful warrantless electronic surveillance to the defendants). But, see In re Directives, 2008 U.S. App. LEXIS 27417 (U.S. Foreign Intell. Survellance Ct. Rev. 2008) (holding that the foreign intelligence surveillance of targets reasonably believed to be outside of the U.S. qualifies for the ―special needs‖ exception to the warrant requirement). See, also, CRS Report WD00002, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, by Elizabeth B. Bazan and Jennifer K. Elsea, at 9-12 (discussing courts‘ differing application of the Fourth Amendment to searches for the purpose of foreign intelligence collection). 6 But, see CRS Report WD00002, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, by Elizabeth B. Bazan and Jennifer K. Elsea, at 29-3 3 (―While the congressional intent to cabin the President‘s exercise of any inherent constitutional authority to engage in foreign intelligence electronic surveillance may be clear from the exclusivity provision in FISA and from the legislative history of the measure, some support may be drawn from the [Foreign Intelligence Surveillance] Court of Review‘s decision in In re Sealed Case for the position that the President continues to have the power to authorize warrantless electronic surveillance to gather foreign intelligence outside the FISA framework‖). 7 See, e.g., 50 U.S.C. § 1 804(a)(7)(B) (2008). Prior to 2001, the statute had required that ―the purpose‖ of a FISA warrant be foreign intelligence collection. 8 50 U.S.C. § 1805(a)(3) (2008). In contrast, federal criminal search warrants require probable cause to believe that instrumentalities, evidence, or fruits of a crime will be found in the place to be searched. See Fed. R. Crim. P. 41(c). Criminal warrants authorizing electronic surveillance additionally require probable cause to believe that the target is engaged in criminal activities, that normal investigative techniques are insufficient, and that the facilities that are the subject of surveillance will be used by the target. 18 U.S.C. § 2518(3) (2008). 9 P.L. 108-458, § 6001(a).

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Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009 



13

Section 206 of the USA PATRIOT Act, which permitted multipoint, or ―roving,‖ wiretaps in certain circumstances by adding flexibility to the manner in which the subject of a FISA court order is specified;10 and Section 215 of the PATRIOT Act, which broadened the types of records that could be made accessible to the government under FISA.11

This report will discuss the state of the law prior to enactment of these provisions, the changes wrought by each of these provisions, and the expected state of the law after the pending sunset date.

“LONE WOLF” TERRORISTS Commonly referred to as the ―lone wolf‖ provision, § 6001(a) of IRTPA simplified the evidentiary standard used to determine whether an individual, other than a citizen or a permanent resident of the U.S., who was engaged in international terrorism, could be the target of a FISA court order. This amendment did not modify other standards used to determine the secondary question of whether the electronic surveillance or a physical search of the subject of a court order is justified in a specific situation.

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Historical Context The historical impetus behind enactment of the ―lone wolf‖ provision came to light shortly after the terrorist attacks of September 11, 2001. During the examination of the events leading up to those attacks, it was reported that investigations into one of the individuals believed to be responsible for those attacks had been potentially hampered by the legal requirements governing FISA.12 Specifically, Federal Bureau of Investigations (FBI) agents investigating Zacarias Moussaoui suspected him of planning a terrorist attack involving piloting commercial airliners, and had detained him in October of 2001 based on a violation of immigration law.13 The FBI agents had then sought a court order under FISA to examine the contents of Moussaoui‘s laptop computer.14 But, the agency apparently concluded that it had insufficient information at that time to demonstrate that Moussaoui was an agent of a foreign power, as required by FISA.15 FISA, as it then existed, would have authorized, among other things, physical searches of a laptop if probable cause existed to believe the laptop was owned or used by a foreign power or its agent.16 The definition of a ―foreign power‖ included ―groups engaged in international

10

P.L. 107-56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B) (2008). P.L. 107-56, § 215, codified at 50 U.S.C. §§ 1861-2 (2008). 12 NAT‘L COMM. ON TERRORIST ATTACKS UPON THE U.S., The 9/11 Commission Report, at 273-274 [hereinafter ―9/11 Comm ‟n Rep.‖] 13 Id. at 273. Moussaoui, a French national, was present in the United States with an expired visa. 14 Id. at 273-274. 15 Id. at 274. Based upon this conclusion, the FBI ―declined to submit a FISA application‖ to the FISC. 16 50 U.S.C. § 1821-1824 (2001). 11

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terrorism or activities in preparation therefor.‖17 Individuals involved in international terrorism for or on behalf of those groups were considered ―agents of a foreign power.‖18 In the weeks leading up to the attacks, it appears that the FBI encountered an actual or perceived insufficiency of information demonstrating probable cause to believe that Moussaoui was acting for or on behalf of an identifiable group engaged in international terrorism.19

Legislative Responses

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Following these revelations, a number of legislative proposals were put forth to amend the definition of ―agents of a foreign power‖ under FISA so that individuals engaged in international terrorism did not need to be linked to a specific foreign power.20 One such amendment was ultimately enacted with passage of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA).21 This ―lone wolf‖ provision provides that persons, other than citizens or permanent residents of the U.S., that are engaged in international terrorism are presumptively considered to be agents of a foreign power. 22 Enactment of this provision obviated any need to provide an evidentiary connection between that individual and a foreign government or terrorist group. Critics of the ―lone wolf‖ provision argued that the laptop in the Moussaoui case could have been lawfully searched under FISA or the laws governing generic criminal warrants.23 Critics also expressed concern that the simplified ―lone wolf‖ standard would lead to ―FISA serving as a substitute for some of our most important criminal laws.‖24 On the other hand, proponents of the ―lone wolf‖ provision note that the increased selforganization among terror networks has made proving connections to identifiable groups more difficult, and that a ―lone wolf‖ provision is necessary to combat terrorists who use a modern organizational structure.25

Sunset The ―lone wolf‖ provision was originally scheduled to sunset on December 31, 2005.26 However, § 103 of the USA PATRIOT Improvement and Reauthorization Act of 2005 17

50 U.S.C. § 180 1(a)(4) (2001). At the time, foreign powers also included foreign governments, entities controlled by those governments, and factions of foreign nations and foreign-based political organizations that are not substantially composed of United States persons. Id. at § (a)(1-6) 18 50 U.S.C. § 1801(b)(2)(C) (2001). 19 See 9/11 Comm ‟n Rep. at 274. It is unclear whether a search of Moussaoui‘s laptop before September 11, 2001, would have provided enough information to prevent or minimize those attacks. 20 S. 2586, 107th Cong. (2002); S. 113, 108th Cong. (2003). 21 P.L. 108-458, § 6001(a). 22 50 U.S.C. § 180 1(b)(1)(3) (2008). 23 See S.Rept. 108-40 at 33-41 (additional views of Sen. Leahy and Sen. Feingold on a similar ―lone wolf‖ provision in S. 113). 24 Id. at 73 (additional views of Sen. Feingold). 25 S.Rept. 108-40 at 4-6. 26 P.L. 108-458, § 6001(b).

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extended the sunset date of the ―lone wolf‖ provision until December 31, 2009.27 The original sunset provision also included a grandfather clause which allowed it to continue to be effective with respect to investigations that began, or potential offenses that took place, before the provision‘s sunset date.28 For example, if an individual is engaged in international terrorism on December 30, 2009, he may still be considered a ―lone wolf‖ for FISA court orders sought after the provision has expired. This grandfather clause is unaffected by the extension of the sunset date to December 31, 2009.

ROVING WIRETAPS Section 206 of the USA PATRIOT ACT amended FISA to permit multipoint, or ―roving,‖ wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified.29 It is often colloquially described as allowing FISA wiretaps to target persons rather than places.

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Background Prior to enactment of § 206, the scope of electronic surveillance authorized by a court order was limited in two ways. First, the location or facility that was the subject of surveillance had to be identified.30 Second, only identifiable third-parties could be directed to facilitate electronic surveillance by the government.31 Conducting electronic surveillance frequently requires the assistance of telecommunications providers, landlords, or other thirdparties. Furthermore, telecommunications providers are generally prohibited from assisting in electronic surveillance for foreign intelligence purposes, except as authorized by FISA.32 In cases where the location or facility was unknown, the identity of the person who would need to assist the government could not be specified in the order. Therefore, limiting the class of persons who could be directed to assist the government by a FISA court order effectively limited the reach of FISA court orders to known and identifiable locations.

Section 206 and “Other Persons” Section 206 of the USA PATRIOT ACT amended § 105(c)(2)(B) of FISA to provide that ―in circumstances where the Court finds, based on specific facts provided in the application, that the actions of the target of the application may have the effect of thwarting the identification of a specified person‖ a FISA order may direct ―other persons‖ to assist with 27

P.L. 109-177, § 103. P.L. 108-458, § 6001(b) (referencing PATRIOT Act sunset provision in P.L. 107-56, § 224(b)). 29 P.L. 107-56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B) (2008). 30 See 50 U.S.C. § 1805(c)(1)(B) (2001) (requiring FISA warrants to specify the ―nature and location of each of the facilities or places at which electronic surveillance will be directed‖). 31 See 50 U.S.C. § 1805(c)(2)(B) (2001). 32 See 50 U.S.C. §§ 1809(a) and 1810 (2008). 28

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the electronic surveillance.33 In a technical amendment later that year, the requirement that the order specify the location of the surveillance was also changed so that this requirement only applied if the facilities or places were known.34 These modifications had the effect of permitting FISA orders to direct unspecified individuals to assist the government in performing electronic surveillance, thus permitting court orders to authorize surveillance of places or locations that were unknown at the time the order was issued. This section was further amended by the USA PATRIOT Improvement and Reauthorization Act of 2005 to require that the FISC be notified within 10 days after ―surveillance begins to be directed at any new facility or place.‖35 In addition, the FISC must be told the nature and location of each new facility or place, the facts and circumstances relied upon to justify the new surveillance, a statement of any proposed minimization procedures that differ from those contained in the original application or order, and the total number of facilities or places subject to surveillance under the authority of the present order. 36

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Particularity Requirement of the Fourth Amendment The Fourth Amendment imposes specific requirements upon the issuance of warrants authorizing searches of ―persons, houses, papers, and effects.‖37 One of the requirements, referred to as the particularity requirement, states that warrants shall ―particularly describ[e] the place to be searched.‖38 Under FISA, roving wiretaps are not required to identify the location that may be subject to surveillance. Therefore, some may argue that roving wiretaps do not comport with the particularity requirement of the Fourth Amendment. Initially, it is not clear that the Fourth Amendment would require that searches for foreign intelligence information be supported by a warrant,39 but prior legal challenges to similar provisions of Title III of the Omnibus Crime Control and Safe Streets Act (Title III) may be instructive in the event that challenges to § 206 are brought alleging violations of the particularity requirement of the Fourth Amendment. Similar roving wiretaps have been permitted under Title III since 1986, in cases where the target of the surveillance takes actions to thwart such surveillance.40 The procedures under Title III are similar to those currently used under FISA, but two significant differences exist. First, a roving wiretap under Title III must definitively identify the target of the surveillance.41 Fixed wiretaps under Title III and all wiretaps under FISA need only identify 33

P.L. 107-56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B) (2008). P.L. 107-108, § 314(a)(2)(A). 35 P.L. 109-177, § 108(b)(4), codified at 50 U.S.C. § 1805(c)(3) (2008). This deadline for notification can be extended to up to 60 days by the FISC upon a showing of good cause. 36 Id. 37 U.S. CONST. amend. IV. The Supreme Court has held that electronic surveillance of private conversations qualifies as a search for purposes of the Fourth Amendment. 38 Id. 39 See supra footnote 5. 40 Electronic Communications Privacy Act of 1986, P.L. 99-508, § 106(d)(3), codified at 18 U.S.C. § 2518(11) (2008). 41 18 U.S.C. § 2518(11)(b)(ii) (2008). 34

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the target if the target‘s identity is known. FISA permits roving wiretaps via court orders that only provide a specific description of the target.42 Second, Title III requires that the surveilled individuals be notified of the surveillance, generally 90 days after surveillance terminates.43 FISA contains no similar notification provision. In United States v. Petti, the Ninth Circuit was presented with a challenge to a roving wiretap under Title III alleging that roving wiretaps do not satisfy the particularity requirement of the Fourth Amendment.44 The Ninth Circuit initially noted that the test for determining the sufficiency of the warrant description is whether the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable 45 probability that another premise might be mistakenly searched.

Applying this test, the Ninth Circuit held that roving wiretaps under Title III satisfied the particularity clause of the Fourth Amendment.46 The court in this case relied upon the fact that targets of roving wiretaps had to be identified and that they were only available where the target‘s actions indicated an intent to thwart electronic surveillance.47 Critics of roving wiretaps under FISA may argue that § 206 increases the likelihood that innocent conversations will be the subject of electronic surveillance. They may further argue that the threat of these accidental searches of innocent persons is precisely the type of injury sought to be prevented by the particularity clause of the Fourth Amendment. Such a threat may be particularly acute in this case given the fact that there is no requirement under FISA that the target of a roving wiretap be identified, although the target must be specifically described.48

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Sunset Section 206 of the USA PATRIOT ACT was initially set to sunset on December 31, 2005.49 But, it was extended by the USA PATRIOT Improvement and Reauthorization Act of 2005 until December 31, 2009. After this date, § 105(c)(2) of FISA will read as it read on October 25, 2001,50 eliminating the authority for FISA court orders to direct other unspecified persons to assist with electronic surveillance.51

42

See 50 U.S.C. §§ 1804(a)(3), 1805(c)(1)(A) (2008). 18 U.S.C. § 251 8(8)(d) (2008). This notification may be postponed upon an exparte showing of good cause. 44 U.S. v. Petti, 973 F.2d 1441, 1443-5 (9th Cir. 1992). 45 Id. at 1444 (internal quotation marks omitted). 46 Id. at 1445. 47 Id. See also, United States v. Bianco, 998 F.2d 1112, 1124 (2nd Cir. 1993) (similarly holding that a similar provision authorizing roving bugs under Title III was constitutional). 48 50 U.S.C. §§ 1804(a)(3), 1805(c)(1)(B) (2008). 49 P.L. 107-56, § 224(a). 50 P.L. 109-177, § 102(b). The relevant section of FISA will then provide that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the 43

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The original sunset provision also provided a grandfather clause for investigations that began, or potential offenses that took place, before the date of the provision‘s expiration.52 For example, if an individual is engaged in international terrorism on December 30, 2009, he may be the target of a roving wiretap under FISA even after authority for new roving wiretaps has expired. This grandfather clause is unaffected by the extension of the sunset date to December 31, 2009.

ACCESS TO BUSINESS RECORDS UNDER FISA Section 215 of the USA PATRIOT ACT enlarged the scope of documents that could be sought under FISA, as well as lowered the standard required before a court order could be issued compelling the production of documents.

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Background In 1976, the Supreme Court held that an individual‘s bank account records did not fall within the protection of the Fourth Amendment‘s prohibition on unreasonable searches and seizures.53 Subsequently, Congress passed laws protecting various types of transactional information, but built in exceptions providing some access to statutorily protected records for counter intelligence purposes.54 Similar statutory protections were also enacted for electronic communications records and credit bureau records.55 As with financial records, these later statutes also included exceptions for access to records relevant to counter intelligence investigations. These exceptions comprise the authority for so-called national security letters (NSL), which can be used to compel the production of certain types of records. In 1998, Congress amended FISA to provide access to certain records that were not available through NSL‘s.56 Specifically, it created a mechanism for federal investigators to compel the production of records from common carriers, public accommodation facilities, storage facilities, and vehicle rental facilities.57 Applications for orders under this section had to be made by FBI agents with a rank of Assistant Special Agent in Charge or higher and investigations could not be conducted solely on the basis of activities protected by the First Amendment.58 Under these procedures the FISC would issue an order if, inter alia, the application contained ―specific and articulable facts giving reason to believe that the person to services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance. 50 U.S.C. § 1805(c)(2) (2001). 51 The sunset will not repeal the provision of FISA that permits a FISA warrant to fail to identify facilities or places that will be subject to electronic surveillance. However, the authority for most new roving wiretaps may be effectively repealed because new orders may not direct unspecified persons to assist with surveillance. 52 P.L. 107-56, § 224(b). 53 U.S. v. Miller, 425 U.S. 435 (1976). 54 See CRS Report RL33320, National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments, by Charles Doyle, at 3. 55 Id. at 3-4. 56 P.L. 105-272, tit. VI, § 602. 57 50 U.S.C. § 1862(a) (2001). 58 50 U.S.C. § 1862(a)(1) (2001).

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whom the records pertain is a foreign power or an agent of a foreign power.‖59 Recipients of an order under this section were required to comply with it, and were also prohibited from disclosing to others that an order had been issued.60

Expansion of Scope of Documents Subject to FISA

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In 2001, § 215 of the USA PATRIOT ACT made several changes to the procedures under FISA for obtaining business records.61 Among these was an expansion of the scope of records that were subject to compulsory production. Whereas, prior to enactment of the USA PATRIOT ACT, only records from four explicit categories of businesses could be obtained, § 215 applied to ―any tangible things.‖62 This expanded scope drew strong opposition from the library community, so much so that § 215 came to be known as the ―library provision‖ despite the fact that the original text of the provision did not mention libraries.63 Opposition from this group appears to have been primarily based upon the chilling effect such access could have on the exercise of First Amendment rights and purported intrusions into areas protected by the Fourth Amendment.64 Opposition from library advocates may have also been a residual response to prior attempts by the FBI to gather foreign intelligence information from library staff and records during the Cold War.65 In response to these concerns, a library-specific amendment was made to the § 215 procedures by the USA PATRIOT Improvement and Reauthorization Act of 2005. Under this amendment, if the records sought were ―library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person,‖ the application has to be approved by one of three high-ranking FBI officers.66

Changes to the Standard of Review Section 215 of the USA PATRIOT ACT also modified the standard that had to be met before an order compelling production of documents could issue from the FISC. Prior to 59

50 U.S.C. § 1862(b)(2)(B) (2001). 50 U.S.C. § 1862(d)(1)-(2) (2001). 61 P.L. 107-56, § 215 codified at 50 U.S.C. § 1862(a)-(b) (2008). 62 50 U.S.C. § 1861(a)(1) (2008). 63 E.g. Richard B. Schmitt, House Weakens Patriot Act‟s „Library Provision‟, L.A. TIMES, June 16, 2005, at A-1. 64 See, e.g., AMERICAN LIBRARY ASSOCIATION, Resolution on the USA Patriot Act and Related Measures That Infringe on the Rights of Library Users, Jan. 29, 2003, available at http://www.ala.org; Judith King, Director ALA Office for Intellectual Freedom, Letter to the Editor, FBI „Fishing Expeditions‟ Librarians‟ Biggest Worry, WALL ST. J., May 24, 2004, at A15; David Mehegan, Reading Over Your Shoulder: The Push Is On To Shelve Part Of The Patriot Act, BOSTON GLOBE, Mar. 9, 2004, at E5. 65 See Ulrika Ekman Ault, The FBI‟s Library Awareness Program: Is Big Brother Reading Over Your Shoulder?, 65 N.Y.U. L. REV. 1532 (1990). 66 Applications for these records could be made only by the Director of the Federal Bureau of Investigation, the Deputy Director of the Federal Bureau of Investigation, or the Executive Assistant Director for National Security. This authority cannot be further delegated. 50 U.S.C. § 1861(a)(3) (2008). 60

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enactment of § 215, an applicant had to have ―specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.‖67 In contrast, under § 215 as originally enacted, the applicant only needed to ―specify that the records concerned [were] sought for a [foreign intelligence investigation.]‖68 Subsequently, in 2005, Congress further amended FISA procedures for obtaining business records as part of the USA PATRIOT Improvement and Reauthorization Act of 2005. The applicable standard was again changed to require ―a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to a [foreign intelligence investigation.]‖69 Records are presumptively relevant if they pertain to a foreign power or an agent of a foreign power; the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation.

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Nondisclosure and Judicial Review Orders issued under § 215 are accompanied by nondisclosure orders prohibiting the recipients from disclosing that the FBI has sought or obtained any tangible things pursuant to a FISA order. However, the recipient may discuss the order with other persons as necessary to comply with the order, with an attorney to obtain legal advice or assistance, or with other persons as permitted by the FBI.70 The recipient must identify persons to whom disclosure has been made, or is intended to be made, if the FBI requests, except that attorneys with whom the recipient has consulted do not need to be identified.71 The USA PATRIOT Improvement and Reauthorization Act of 2005 also provided procedures for recipients of § 215 orders to challenge the judicial review of orders compelling the production of business records.72 Once a petition for review is submitted by a recipient, a FISC judge must determine whether the petition is frivolous within 72 hours.73 If the petition is frivolous, it must be denied and the order affirmed.74 Otherwise the order may be modified or set aside if it does not meet the requirements of FISA or is otherwise unlawful.75 Appeals by either party may be heard by the Foreign Intelligence Court of Review and the Supreme Court.76 Judicial review of nondisclosure orders operates under a similar procedure,77 but such orders are not reviewable for one year after they are initially issued.78 If the petition is not determined to be frivolous, a nondisclosure order may be set aside if there is 67

50 U.S.C. § 1862(b)(2)(B) (2001). P.L. 107-56, § 215. 69 P.L. 109-177, § 106(b). 70 50 U.S.C. § 186 1(d)(1) (2008). 71 50 U.S.C. § 1861(d)(2)(C) (2008). 72 50 U.S.C. § 1861(f)(2)(A)(i) (2008) 73 50 U.S.C. § 186 1(f)(2)(A)(ii) (2008). 74 Id. 75 50 U.S.C. § 186 1(f)(2)(B) (2008). 76 50 U.S.C. § 186 1(f)(3) (2008). 77 Judicial review of nondisclosure orders was added by P.L. 109-178, § 3. 68

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no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, 79 interfere with diplomatic relations, or endanger the life or physical safety of any person.

A petition to set aside a nondisclosure order may be defeated if the government certifies that disclosure would endanger the national security or interfere with diplomatic relations.80 Absent any finding of bad faith, such a certification is to be treated as conclusive by the FISC. If a petition is denied, either due to a certification described above, frivolity, or otherwise, the petitioner may not challenge the nondisclosure order for another year.81 Appeals by either party may be heard by the Foreign Intelligence Court of Review and the Supreme Court.82

DOJ OIG Report The USA PATRIOT Improvement and Reauthorization Act of 2005 directed the Inspector General of the Department of Justice (OIG) to audit the FBI‘s use of § 215 authority and report its findings to Congress.83 The OIG‘s most recent audit for calendar year 2006 was released in March of 2008.84 According to that report, 21 applications for § 215 orders were made in 2006, of which six were withdrawn and 15 granted. The report also indicates that one of the six applications was withdrawn because the FISC indicated that it would not sign the order due to First Amendment concerns.85

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Sunset Section 215 of the USA PATRIOT ACT was initially set to sunset on December 31, 2005.86 But, it was extended by the USA PATRIOT Improvement and Reauthorization Act of 2005 until December 31, 2009. After this date, § 501 and 502 of FISA will read as they read on October 25, 2001,87 restricting the types of business records that are subject to FISA and reinstating the requirement for ―specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.‖88

78

50 U.S.C. § 1861(f)(2)(A)(i) (2008). 50 U.S.C. § 1861(f)(2)(C)(i) (2008). 80 Such certifications must be made by the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation. 50 U.S.C. § 1861(f)(2)(C)(ii) (2008). 81 50 U.S.C. § 1861(f)(2)(C)(iii) (2008). 82 50 U.S.C. § 186 1(f)(3) (2008). 83 P.L. 109-177, § 106A. 84 OFFICE OF THE INSPECTOR GENERAL, DEP‘T OF JUSTICE, A Review of the FBI‟s Use of Section 215 Orders for Business Records in 2006, Mar. 2008, available at http://www.usdoj.gov/oig/special /s0803a/final.pdf. 85 Id. at 33. In indicating that it would deny the application, the FISC appears to have decided that ―the facts were too ‗thin‘ and that this request implicated the target‘s First Amendment rights.‖ Id. at 68. 86 P.L. 107-56, § 224(a). 87 P.L. 109-177, § 102(b). Access will then be limited to records held by common carriers, public accommodation facilities, physical storage facilities, and vehicle rental facilities. 50 U.S.C. § 1862(c)(2) (2001). 88 50 U.S.C. § 1862(b)(2)(B) (2001). 79

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The original sunset provision also provided a grandfather clause for investigations that began, or potential offenses that took place, before the date of the provision‘s expiration.89 For example, in the case of investigations that had already begun before December 30, 2009, a broader scope of records could be made accessible to the government under FISA even after the expiration date. This grandfather clause is unaffected by the extension of the sunset date to December 31, 2009.

PROPOSED LEGISLATION IN THE 111TH CONGRESS

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H.R. 1467, the Safe and Secure America Act of 2009, would extend all three provisions for ten years, creating a new sunset date of December 31, 2019. This bill would not otherwise change any of the procedures or legal standards relevant to these three provisions.

89

P.L. 107-56, § 224(b).

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In: Terrorism Issues, Policies and Legislation Editor: Barry J. Pourer, pp. 23-83

ISBN: 978-1-61209-327-7 © 2011 Nova Science Publishers, Inc.

Chapter 3

ENEMY COMBATANT DETAINEES: HABEAS CORPUS CHALLENGES IN FEDERAL COURT Jennifer K. Elsea*, Michael John Garcia and Kenneth R. Thomas

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SUMMARY After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called ―Combatant Status Review Tribunals‖ (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue relief in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. In December 2005, Congress passed the Detainee Treatment Act of 2005 (DTA) to divest the courts of jurisdiction to hear some detainees‘ challenges by eliminating the federal courts‘ statutory jurisdiction over habeas claims by aliens detained at Guantanamo Bay (as well as other causes of action based on their treatment or living conditions). The DTA provided instead for limited appeals of CSRT determinations or final decisions of military commissions. After the Supreme Court rejected the view that the DTA left it without jurisdiction to review a habeas challenge to the validity of military commissions in the case of Hamdan v. Rumsfeld, the 109th Congress enacted the Military Commissions Act of 2006 (MCA) (P.L. 109-366) to authorize the President to convene military commissions and to amend the DTA to further reduce access to federal courts by ―alien enemy combatants,‖ wherever held, by eliminating pending and future causes of action other than the limited review of military proceedings permitted under the DTA. In June 2008, the Supreme Court held in the case of Boumediene v. Bush that aliens designated as enemy combatants and detained at Guantanamo Bay have the constitutional *

Corresponding address: Email: [email protected]

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privilege of habeas corpus. The Court also found that MCA § 7, which limited judicial review of executive determinations of the petitioners‘ enemy combatant status, did not provide an adequate habeas substitute and therefore acted as an unconstitutional suspension of the writ of habeas. The immediate impact of the Boumediene decision is that detainees at Guantanamo may petition a federal district court for habeas review of the legality and possibly the circumstances of their detention, perhaps including challenges to the jurisdiction of military commissions. President Barack Obama‘s Executive Order calling for an at least temporary halt in military commission proceedings and the closure of the Guantanamo detention facility is likely to have implications for legal challenges raised by detainees. In March 2009, the Obama Administration announced a new definitional standard for the government‘s authority to detain terrorist suspects, which does not use the phrase ―enemy combatant‖ to refer to persons who may be properly detained. The new standard is similar in scope to the ―enemy combatant‖ standard used by the Bush Administration to detain terrorist suspects. The standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide ―substantial support‖ to such groups, regardless of whether such persons were captured away from the battlefield in Afghanistan.

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INTRODUCTION Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force (AUMF), which granted the President the authority ―to use all necessary and appropriate force against those ... [who] planned, authorized, committed, or aided the terrorist attacks" against the United States.‖1 Soon thereafter, President Bush issued a military order formulating guidelines for the detention and treatment of foreign belligerents captured in the ―war on terror‖ and establishing military commissions to try some detainees for violations of the law of war.2 Beginning in early 2002, the United States began transferring foreign belligerents captured in the ―war on terror‖ to the U.S. Naval Station in Guantanamo Bay, Cuba for preventative detention and potential prosecution for any war crimes they may have committed. In 2004, the Supreme Court issued two key rulings concerning the Executive‘s authority to detain persons in the ―war on terror.‖ In Hamdi v. Rumsfeld, 3 a majority of the Court found that the 2001 AUMF permitted the preventative detention of enemy combatants captured during hostilities in Afghanistan, including those who were U.S. citizens. A divided Court found that persons deemed ―enemy combatants‖ have the right to challenge their detention before a judge or other ―neutral decision-maker.‖ The Hamdi case concerned the rights of a U.S. citizen detained as an enemy combatant, and the Court did not decide the extent to which this right also applied to noncitizens held at Guantanamo and elsewhere. However, on the same day that Hamdi was decided, the Court issued an opinion in the case of Rasul v. Bush,4 holding that the federal habeas corpus statute, 28 U.S.C. § 2241, provided federal courts with 1

P.L. 107-40. Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, November 13, 2001, 66 Federal Register 57833 (2001)(hereinafter ―MO‖ or ―military order‖). 3 542 U.S. 507 (2004). 4 542 U.S. 466 (2004). 2

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Enemy Combatant Detainees

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jurisdiction to consider habeas corpus petitions by or on behalf of persons detained at Guantanamo. The Court‘s rulings in Hamdi and Rasul had two immediate consequences. First, the Department of Defense (DOD) established Combatant Status Review Tribunals (CSRTs), an administrative process to determine whether a detainee at Guantanamo was an ―enemy combatant.‖ Secondly, lawyers filed dozens of petitions on behalf of the detainees in the U.S. District Court for the District of Columbia, where judges reached conflicting conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. After the Supreme Court granted certiorari to hear a challenge by one of the detainees to his trial by military tribunal, Congress passed the Detainee Treatment Act of 2005 (DTA)5. The DTA requires uniform standards for interrogation of persons in the custody of the DOD, and expressly bans cruel, inhuman, or degrading treatment of detainees in the custody of any U.S. agency. At the same time, however, it divested the courts of jurisdiction to hear challenges by those detained at Guantanamo Bay based on their treatment or living conditions. The DTA also eliminated the federal courts‘ statutory jurisdiction over habeas claims by aliens challenging their detention at Guantanamo Bay, but provided for limited appeals of status determinations made pursuant to the DOD procedures for CSRTs, along with final decisions by military commissions. However, in the 2006 case of Hamdan v. Rumsfeld,6 the Supreme Court interpreted these provisions as being inapplicable to habeas cases that were pending at the time the DTA was enacted, and it reviewed the validity of military commissions established pursuant to President Bush‘s 2001 military order. The Court held that the military tribunals established by the President did not comply with the Uniform Code of Military Justice or the law of war which the Code incorporates, including the 1949 Geneva Conventions. In response to the Hamdan ruling, Congress enacted the Military Commissions Act of 2006 (MCA).7 The act authorized the President to convene military commissions to try ―unlawful alien combatants‖ for war crimes, and also established procedural requirements for the commissions. As was the case under the DTA, final decisions of military commissions are appealable to the D.C. Circuit. However, the MCA provided that appeals of military commission judgments shall first be routed through the newly-created Court of Military Commission Review. Of more immediate legal significance, the MCA also expressly eliminated court jurisdiction over all pending and future causes of action, other than pursuant to the limited review permitted under the DTA. The complete elimination of habeas corpus review by Congress compelled the courts to directly address an issue they had avoided reaching in earlier cases: Does the constitutional writ of habeas corpus extend to noncitizens held at Guantanamo? The Constitution‘s Suspension Clause prohibits the suspension of habeas corpus except when public safety requires it in the case of invasion or surrender. The MCA did not purport to be a suspension of habeas, and the government did not make such a claim to the courts. Instead, the government argued that noncitizens detained at Guantanamo receive no constitutional protections. Therefore, denying these persons access to habeas review would not run afoul of 5

P.L. 109-148, Title X; P.L. 109-163, Title XIV. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). 7 P.L. 109-366. 6

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the Suspension Clause. In the 2008 case of Boumediene v. Bush, the Court rejected this argument in a 5-4 opinion, and ruled that the constitutional privilege of habeas extends to Guantanamo detainees.8 As a result of the Boumediene decision, detainees currently held at Guantanamo may petition for habeas review of their designation as enemy combatants. Several legal issues remain unsettled, including the scope of habeas review available to detainees, the remedy available for those persons found to be unlawfully held by the United States, and the extent to which other constitutional provisions extend to noncitizens held at Guantanamo and elsewhere. The continuing availability of the judicial process established by the DTA is also uncertain given the D.C. Circuit‘s ruling in January 2009 that the Boumediene decision effectively nullified this review process.9 In the meantime, the U.S. Court of Appeals for the Fourth Circuit addressed whether it retained jurisdiction under the MCA to hear a habeas petition on behalf of Ali Saleh Kahlah al-Marri, an alien arrested in the United States and detained as an enemy combatant. In 2007, the appellate court initially granted relief to al-Marri, who had been arrested in Illinois on criminal charges but then transferred to South Carolina and detained in military custody as an ―enemy combatant.‖10 While one judge on the panel dissented with respect to the holding that the detention was not authorized by Congress, all three judges on the panel agreed that the MCA did not divest it of jurisdiction to hear the petition, notwithstanding the MCA‘s lack of geographical limits. The government asked for, and was granted, a rehearing en banc.11 In 2008, the en banc court agreed that the jurisdictional issue had been resolved by the Supreme Court‘s decision in Boumediene, but found little agreement as to the scope of activity making a person an ―enemy combatant.‖12 The petitioner subsequently sought to appeal the ruling to the Supreme Court, and the Court granted certiorari to review the appellate court‘s decision in December, 2008.13 In January 2009, President Barack Obama issued a memorandum instructing the Attorney General, Secretary of Defense, and other designated officials to review the factual and legal basis for al-Marri‘s continued detention as an enemy combatant, and ―identify and thoroughly evaluate alternative dispositions.‖14 Subsequently, al-Marri was indicted by a federal grand jury for providing material support to Al Qaeda and conspiring with others to provide such support. The government immediately requested that the Supreme Court dismiss al-Marri‘s pending case and authorize his transfer from military to civilian custody for criminal trial. On March 6, 2009, the Supreme Court granted the government‘s application concerning the transfer of al-Marri, vacated the Fourth Circuit‘s judgment, and remanded the case back to the appellate court with instructions to dismiss the case as moot.15 As a result, a definitive pronouncement by the Supreme Court regarding the President‘s authority to detain suspected terrorists captured inside the United States has been avoided, at least temporarily. 8

Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229 (2008). Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009). 10 Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007). 11 Al-Marri v. Pucciarelli, Case No. 06-7427 (4th Cir. 2008). 12 Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008). 13 Al-Marri v. Pucciarelli, 129 S.Ct. 680 (U.S. 2008). 14 Memorandum from President Barack Obama to the Attorney General and Other Officials, ―Review of the Detention of Ali Saleh Kahlah al-Marri,‖ January 22, 2009, available at http://www.whitehouse gov/the_press_office/ ReviewoftheDetentionofAliSalehKahlah/ (hereinafter ―al-Marri Memo‖). 15 Al-Marri v. Spagone, -- S.Ct. --, 2009 WL 564940 (U.S. March 6, 2009). 9

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On January 22, 2009, President Obama issued an Executive Order requiring that the Guantanamo detention facility be closed as soon as practicable, and no later than a year from the date of the Order.16 The Order further requires specified officials to review all Guantanamo detentions to assess whether the detainee should continue to be held by the United States, transferred or released to a third country, or be prosecuted by the United States for criminal offenses.17 During this review process, the Secretary of Defense is required to take steps to ensure that all proceedings before military commissions and the United States Court of Military Commission Review are halted.18 The closure of the Guantanamo detention facility and its resulting effects seem likely to have implications for legal challenges raised by detainees, particularly if detainees are brought to the United States, where they would arguably receive additional constitutional protections.19 In March 2009, the Obama Administration announced a new definitional standard for the government‘s authority to detain terrorist suspects, which does not use the phrase ―enemy combatant‖ to refer to persons who may be properly detained.20 The new standard is largely similar in scope to the ―enemy combatant‖ standard used by the Bush Administration to detain terrorist suspects. The Obama Administration standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide ―substantial support‖ to such groups, regardless of whether these individuals were captured away from the battlefield in Afghanistan.21 The Obama Administration has also claimed that this definitional standard does ―not rely on the President‘s authority as Commander-in-Chief independent of Congress‘s specific authorization.‖22 This report provides an overview of the CSRT procedures; summarizes selected court cases related to the detentions and the use of military commissions; discusses the Detainee Treatment Act, as amended by the Military Commissions Act of 2006, analyzing its effects on detainee- related litigation in federal court; and discusses the Supreme Court‘s decision in Boumediene and possible effects upon legal challenges raised by detainees. In the 110th Congress, several legislative proposals were introduced which address the detention of persons in the ―war on terror.‖ This legislation is discussed in the Appendix to this report. For discussion of legislation introduced in the 111th Congress concerning detainees, see CRS Report R40419, Analysis of Selected Legislative Proposals Addressing Guantanamo Detainees, by Anna C. Henning.

16

Executive Order 13492, ―Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities,‖ 74 Federal Register 4897, January 22, 2009. 17 Id. at § 4. 18 Id. at § 7. 19 For further discussion, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia et al. 20 Department of Justice, ―Department of Justice Withdraws ‗Enemy Combatant‘ Definition for Guantanamo Detainees,‖ press release, March 13, 2009, http://www.usdoj.gov/opa/pr/2009/March/ 09-ag-232.html (hereinafter ―DOJ Press Release‖); In re Guantanamo Bay Detainee Litigation, Respondents‘ Memorandum Regarding the Government‘s Detention Authority Relative to Detainees Held At Guantanamo Bay, No. 08-0442, filed March 13, 2009 (D.D.C.) (hereinafter ―Detention Authority Memorandum‖). 21 Detention Authority Memorandum, supra footnote 20, at *7-8. 22 DOJ Press Release, supra footnote 20.

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EARLY DEVELOPMENTS IN THE DETENTION AND TRIAL OF ENEMY COMBATANTS CAPTURED IN THE "WAR ON TERROR" The Bush Administration determined in February 2002 that Taliban detainees are covered under the Geneva Conventions,23 while Al Qaeda detainees are not,24 but that none of the detainees qualifies for the status of prisoner of war (POW).25 The Administration deemed all of them to be ―unlawful enemy combatants,‖ and claimed the right to detain them without trial or continue to hold them in preventative detention even if they are acquitted of criminal charges by a military tribunal. Fifteen of the detainees had been determined by the President to be subject to his military order (―MO‖) of November 13, 2001,26 making them eligible for trial by military commission for war crimes offenses.27 The Supreme Court, however, found that the procedural rules established by the Department of Defense to govern the military commissions were not established in accordance with the Uniform Code of Military Justice (UCMJ).28 The following sections trace the judicial developments with respect to the detention of alleged enemy combatants.

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Rasul v. Bush29 Petitioners were two Australians and twelve Kuwaitis (a petition on behalf of two U.K. citizens was mooted by their release) who were captured during hostilities in Afghanistan and were being held in military custody at the Guantanamo Bay Naval Base, Cuba. The Bush Administration argued, and the court below had agreed, that under the 1950 Supreme Court case Johnson v. Eisentrager,30 ―‗the privilege of litigation‘ does not extend to aliens in military custody who have no presence in ‗any territory over which the United States is sovereign.‘‖ The Supreme Court distinguished Rasul by noting that Eisentrager concerned the constitutional right to habeas corpus rather than the right as implemented by statute. The Rasul Court did not reach the constitutional issue, but found authority for federal court jurisdiction in 28 U.S.C. § 2241, which grants courts the authority to hear applications for

23

The two most relevant conventions are the Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3317 (hereinafter ―GPW‖); and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516 (hereinafter ―GC‖). 24 White House Memorandum, ―Humane Treatment of al Qaeda and Taliban Detainees‖ (February 7, 2002), available at http://www.washingtonpost.com/wp-srv/nation 25 For more history and analysis, see CRS Report RL31367, Treatment of “Battlefield Detainees” in the War on Terrorism, by Jennifer K. Elsea. 26 Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, November 13, 2001, 66 Federal Register 57833 (2001)(hereinafter ―MO‖ or ―military order‖). 27 For an analysis of the military commission rules, see CRS Report RL33688, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice, by Jennifer K. Elsea. 28 10 U.S.C. § 801 et seq. 29 542 U.S. 466 (2004). 30 339 U.S. 763 (1950).

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habeas corpus ―within their respective jurisdictions,‖ by any person who claims to be held ―in custody in violation of the Constitution or laws or treaties of the United States.‖31 The Court also declined to read the statute to vary its geographical scope according to the citizenship of the detainee. Justice Kennedy, in a concurring opinion, would have found jurisdiction over the Guantanamo detainees based on the facts that Guantanamo is effectively a U.S. territory and is ―far removed from any hostilities,‖ and that the detainees are ―being held indefinitely without the benefit of any legal proceeding to determine their status.‖ Noting that the Writ of Habeas Corpus (―Writ‖) has evolved as the primary means to challenge executive detentions, especially those without trial, the Court held that jurisdiction over habeas petitions does not turn on sovereignty over the territory where detainees are held. Even if the habeas statute were presumed not to extend extraterritorially, as the government urged, the Court found that the ―complete jurisdiction and control‖ the United States exercises under its lease with Cuba would suffice to bring the detainees within the territorial and historical scope of the Writ. Without expressly overruling Eisentrager, the Court distinguished the cases at issue to find Eisentrager inapplicable. Eisentrager listed six factors that precluded those petitioners from seeking habeas relief: each petitioner ―(a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.‖32 The Rasul Court noted that the Guantanamo petitioners, in contrast, ―are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.‖ As to the petitioners‘ claims based on statutes other than the habeas statute, which included the federal question statute33 as well as the Alien Tort Statute,34 the Court applied

31

Rasul, 542 U.S. at 478-79. When Eisentrager was decided in 1950, the Rasul majority found, the ―respective jurisdictions‖ of federal district courts were understood to extend no farther than the geographical boundaries of the districts (citing Ahrens v. Clark, 335 U.S. 188 (1948)). According to the Court, that understanding was altered by a line of cases, recognized in Braden v. 30 th Judicial Circuit Court of Ky., 410 U.S. 484 (1973), as overruling the statutory interpretation that had established the ―inflexible jurisdictional rule‖ upon which Eisentrager was implicitly based. Justice Scalia, with Chief Justice Rehnquist and Justice Thomas, dissented, arguing that the habeas statute on its face requires a federal district court with territorial jurisdiction over the detainee. The dissenters would have read Braden as distinguishing Ahrens rather than overruling it. For more analysis of the Rasul opinion, see CRS Report RS21884, The Supreme Court 2003 Term: Summary and Analysis of Opinions Related to Detainees in the War on Terrorism, by Jennifer K. Elsea. 32 Rasul, 542 U.S. at 475 (citing Eisentrager, 339 U.S. at 777). 33 28 U.S.C. § 133 1(―The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.‖). 34 28 U.S.C. § 1350 (―The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.‖).

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the same reasoning to conclude that nothing precluded the detainees from bringing such claims before a federal court.35 The Court‘s opinion left many questions unanswered. It did not clarify which of the Eisentrager (or Rasul) factors would control under a different set of facts.36 The opinion did not address whether persons detained by the U.S. military abroad in locations where the United States does not exercise full jurisdiction and control would have access to U.S. courts. The Hamdan opinion seems to indicate that a majority of the Court regarded Eisentrager as a ruling denying relief on the merits rather than a ruling precluding jurisdiction altogether.37 Under this view, it may be argued, there was no statutory bar precluding detainees in U.S. custody overseas from petitioning for habeas relief in U.S. courts, although it may be substantially more difficult for such prisoners to identify a statutory or constitutional infraction that would enable them to prevail on the merits. The Court did not decide the merits of the petitions, although in a footnote the majority opined that ―Petitioners‘ allegations—that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing—unquestionably describe ‗custody in violation of the Constitution or laws or treaties of the United States.‘‖ The opinion left to lower courts such issues as whether the detentions are authorized by Congress, who may be detained and what evidence might be adduced to determine whether a person is an enemy combatant, or whether the Geneva Conventions afford the detainees any protections. The Court did not address the extent to which Congress might alter federal court jurisdiction over detainees‘ habeas petitions, but Boumediene appears to foreclose the option of eliminating it completely, at least without an adequate substitute procedure. This issue is discussed more fully below.

Combatant Status Review Tribunals In response to Supreme Court decisions in 2004 related to ―enemy combatants,‖ the Pentagon established procedures for Combatant Status Review Tribunals (CSRTs), based on the procedures the Army uses to determine POW status during traditional wars.38 Detainees 35

Rasul, 542 U.S. at 484 (―nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the ‗privilege of litigation‘ in U.S. courts‖). 36 The Court noted that ―Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners‘ constitutional entitlement to habeas corpus.‖ Rasul, 542 U.S. at 476 (emphasis original). 37 Hamdan, 548 U.S. at 626 (characterizing the Eisentrager decision, 339 U.S. 763, 790(1950), as having rejected the treaty claim ―on the merits‖). Justice Kennedy‘s Boumediene opinion rejected the view that Eisentrager imposed a strict jurisdictional test based solely on the sovereignty of the territory involved, finding instead that all of the ―practical considerations‖ considered in the opinion were integral to the ultimate holding. Boumediene, 128 S.Ct. at 2257. 38 See Department of Defense (DOD) Fact Sheet, ―Combatant Status Review Tribunals,‖ available at http://www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf. CSRT proceedings are modeled on the procedures of Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (1997), which establishes administrative procedures to determine the status of detainees under the Geneva Conventions and prescribes their treatment in accordance with

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who are determined not to be enemy combatants are to be transferred to their country of citizenship or otherwise dealt with ―consistent with domestic and international obligations and U.S. foreign policy.‖39 CSRTs have confirmed the status of at least 520 enemy combatants. Any new detainees that might be transported to Guantanamo Bay would go before a CSRT. The CSRTs are not empowered to determine whether the enemy combatants are unlawful or lawful, which led two military commission judges to hold that CSRT determinations are inadequate to form the basis for the jurisdiction of military commissions.40 Military commissions must now determine whether a defendant is an unlawful enemy combatant in order to assume jurisdiction.41 CSRTs are administrative rather than adversarial, but each detainee has an opportunity to present ―reasonably available‖ evidence and witnesses42 to a panel of three commissioned officers to try to demonstrate that the detainee does not meet the criteria to be designated as an ―enemy combatant,‖ defined as ―an individual who was part of or supporting 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 a belligerent act or has directly supported hostilities in aid of enemy armed forces.‖43 Each detainee is represented by a military officer (not a member of the Judge Advocate General (―JAG‖) Corps)44 and may elect to participate in the hearing or remain silent.45 The government‘s evidence is presented by the recorder, who is a military officer, preferably a judge advocate.46

international law. It does not include a category for ―unlawful‖ or ―enemy‖ combatants, who would presumably be covered by the other categories. 39 See DOD Press Release, ―Combatant Status Review Tribunal Order Issued‖ (June 7, 2004), available at http://www.defenselink.mil/releases/2004/nr20040707-0992.html; Memorandum from the Deputy Secretary of Defense to the Secretary of the Navy, Order Establishing Combatant Status Review Tribunal, July 7, 2004 (hereinafter ―CSRT Order‖), available at http://www.defenselink.mil/news// d20040707review.pdf; Memorandum from Deputy Secretary of Defense, Implementation of Combatant Status Review Tribunals Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba, July 14, 2006 (hereinafter ―CSRT Implementing Directive‖), available at http://www. defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf. 40 See Josh White and Shailagh Murray, Guantanamo Ruling Renews The Debate Over Detainees, WASH. POST, June 6, 2007, at A3. 41 United States v. Khadr, No. 07-001, (U.S.C.M.C.R. September 7, 2007) (finding CSRT designation alone insufficient to confer jurisdiction on military commission, but holding that the military commission judge has the inherent authority to determine the status of the accused). 42 Witnesses from within the U.S. Armed Forces are not ―reasonably available‖ if their participation, as determined by their commanders, would adversely affect combat or support operations. CSRT Implementing Directive, supra footnote 39, at encl. 1, para. G(9)(a). All other witnesses, apparently including those from other agencies, are not ―reasonably available‖ if they decline to attend or cannot be reached, or if security considerations prevents their presence. Id. et encl. 1, para. G(9)(b). It is unclear who makes the security determination. Non-government witnesses appear at their own expense. Testimony is under oath and may be provided in writing or by telephone or video. 43 CSRT Order, supra footnote 39, at 1 44 CSRT Implementing Directive, supra footnote 39, at encl. 1, para. B. 45 Id. at encl. 1, para. F. 46 Id at encl. 1, para. C(2). In an affidavit submitted in DTA litigation, the government acknowledged that it has not utilized the procedures set forth in the CSRT Implementing Directive. See Bismullah v. Gates, 501 F.3d 178, 194-95 (D.C. Cir. 2007) (order on motions) (Rogers, J. Concurring) (citing differences between written procedures and those described by Rear Admiral James M. McGarrah in the Boumediene case). Rather than having a JAG officer in the rank of O-3 or above compile government information, the Department of Defense has utilized research, collection, and coordination teams to gather information to be assessed by a ―case writer‖ who has ―received

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The CSRTs are not bound by the rules of evidence that would apply in court, and the government‘s evidence is presumed to be ―genuine and accurate.‖47 The government is required to present all of its relevant evidence, including evidence that tends to negate the detainee‘s designation, to the tribunal.48 The CSRT is required to assess, ―to the extent practicable, whether any statement derived from or relating to such detainee was obtained as a result of coercion and the probative value, if any, of any such statement.‖49 Unclassified summaries of relevant evidence may be provided to the detainee.50 The detainee‘s personal representative may view classified information and comment on it to the tribunal to aid in its determination51 but does not act as an advocate for the detainee.52 If the tribunal determines that the preponderance of the evidence is insufficient to support a continued designation as ―enemy combatant‖ and its recommendation is approved through the chain of command, the detainee will be informed of that decision upon finalization of transportation arrangements (or earlier, if the task force commander deems it appropriate).53 In March 2002, the Pentagon announced plans to create a separate process for periodically reviewing the status of detainees.54 The process, similar to the CSRT process, affords persons detained at Guantánamo Bay the opportunity to present to a review board, on at least an annual basis while hostilities are ongoing, information to show that the detainee is no longer a threat or that it is in the interest of the United States and its allies to release the prisoner. If new information with a bearing on the detainee‘s classification as an ―enemy combatant‖ comes to light, a new CSRT may be ordered using the same procedures as described above.55 The detainee‘s State of nationality may be allowed, national security concerns permitting, to submit information on behalf of its national.

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PRE-BOUMEDIENE V. BUSH COURT CHALLENGES TO THE DETENTION POLICY While the Supreme Court clarified in Rasul (and later Boumediene, discussed infra) that detainees presently held at Guantanamo have recourse to federal courts to challenge their detention, the extent to which they may enforce any rights they may have under the Geneva approximately two weeks of training.‖ Id. at 94. Thus, the reporter assigned to represent the government‘s case may not have had access to all government information. 47 CSRT Implementing Directive, supra footnote 39, at encl. 1, para. G(7) & (11). 48 Id. at encl. 1, para. G(8). 49 Id. at encl. 10. 50 Id. at encl. 1, para. E(3)(a). 51 Id. at encl. 1, para. H(7). 52 Id. at encl. 2, para. D (the personal representative is required to explain to the represented detainee that he or she is neither the attorney or advocate for the detainee, and that any information provided by the detainee is not confidential). 53 Id. at encl. 1, para. I(9)-(10). 54 See DOD Press Release, ―DoD Announces Draft Detainee Review Policy‖ (March 3, 2004), available at http://www.defenselink.mil/releases/2004/nr20040303-0403.html; Memorandum from Deputy Secretary of Defense, Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at U.S. Navy Base, Guantanamo Bay, Cuba (July 14, 2006), available at http://www.defenselink.mil news/Aug2006/ d20060809ARBProceduresMemo.pdf. 55 CSRT Implementing Directive, supra footnote 39, at encl. 10 (implementing Detainee Treatment Act provisions).

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Conventions and other law continues to remain unclear. Prior to the enactment of the DTA provisions eliminating habeas review, the Justice Department argued primarily that Rasul v. Bush merely decided the issue of jurisdiction, but that the 1950 Supreme Court decision in Johnson v. Eisentrager56 remained applicable to limit the relief to which the detainees may be entitled. While more than one district judge from the D.C. Circuit agreed,57 others did not, holding for example that detainees have the right to the assistance of an attorney.58 One judge found that a detainee has the right to be treated as a POW until a ―competent tribunal‖ decides otherwise,59 but the appellate court reversed. The following sections summarize the three most important decisions prior to the enactment of the MCA, including the cases that eventually reached the Supreme Court as Boumediene v. Bush and Hamdan v. Rumsfeld. The Court of Appeals for the D.C. Circuit had ordered these cases dismissed for lack of jurisdiction on the basis of the MCA,60 but the Supreme Court reversed in both its Hamdan and Boumediene decisions, returning the cases to the district court for consideration on the merits. Also discussed is a Fourth Circuit case involving an alien, al-Marri, arrested in the United States and subsequently held in military custody as an enemy combatant. The Supreme Court initially granted certiorari to review the appellate court‘s decision.61 However, before the Court could consider the merits of the case, the government requested that the Court authorize al-Marri‘s release from military custody and transfer to civilian authorities to face criminal charges. The Court granted the government‘s request, vacated the appellate court‘s earlier judgment, and transferred the case back to the lower court with orders to dismiss it as moot.

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KHALID V. BUSH62 Seven detainees, all of whom had been captured outside of Afghanistan, sought relief from their detention at the Guantanamo Bay facility. U.S. District Judge Richard J. Leon agreed with the Bush Administration that Congress, pursuant to the 2001 AUMF, granted the President the authority to detain foreign enemy combatants outside the United States for the duration of the war against Al Qaeda and the Taliban, and that the courts have virtually no power to review the conditions under which such prisoners are held. Noting that the prisoners had been captured and detained pursuant to the President Bush‘s military order,63 Judge Leon 56

339 U.S. 763 (1950) (holding that the federal courts did not have jurisdiction to hear a petition on behalf of German citizens who had been convicted by U.S. military commissions in China because the writ of habeas corpus was not available to ―enemy alien[s], who at no relevant time and in no stage of [their] captivity [have] been within [the court‘s] jurisdiction‖). 57 Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005); Hamdan v. Rumsfed, 464 F. Supp.2d 9 (D.D.C. 2006). 58 Al Odah v. United States, 346 F. Supp. 2d 1 (D.D.C. 2004). 59 Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004), rev‟d 415 F.3d 33 (D.C. Cir.), rev‟d 548 U.S. 557 (2006). 60 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007). 61 129 S.Ct. 680 (U.S. 2008). Al-Marri also petitioned separately for relief from certain conditions of detention. AlMarri v. Gates, Case No. 05-2259 (D.S.C. filed March 13, 2008). 62 355 F. Supp. 2d 311 (D.D.C. 2005), vacated and dismissed sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), rev‟d Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229 (2008). 63 Although the MO authorized detention as well as trial by military commissions, only fifteen of the detainees were formally designated as subject to the MO.

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agreed with the government that ―(1) non-resident aliens detained under [such] circumstances have no rights under the Constitution; (2) no existing federal law renders their custody unlawful; (3) no legally binding treaty is applicable; and (4) international law is not binding under these circumstances.‖64 Judge Leon rejected the petitioners‘ contention that their arrest outside of Afghanistan and away from any active battlefield meant that they could not be ―enemy combatants‖ within the meaning of the law of war, finding instead that the AUMF contains no geographical boundaries,65 and gives the President virtually unlimited authority to exercise his war power wherever enemy combatants are found.66 The circumstances behind the off-battlefield captures did, however, apparently preclude the petitioners from claiming their detentions violate the Geneva Conventions.67 Other treaties put forth by the petitioners were found to be unavailing because of their non-self-executing nature.68 The court declined to evaluate whether the conditions of detention were unlawful. Judge Leon concluded that ―[w]hile a state of war does not give the President a ‗blank check,‘ and the courts must have some role when individual liberty is at stake, any role must be limited when, as here, there is an ongoing armed conflict and the individuals challenging their detention are non-resident aliens.‖69 He dismissed all seven petitions, ruling that ―until Congress and the President act further, there is ... no viable legal theory under international law by which a federal court could issue a writ.‖ On appeal, the Khalid case was consolidated with In re Guantanamo Detainee Cases as Boumediene v. Bush.

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In re Guantanamo Detainee Cases70 U.S. District Judge Joyce Hens Green interpreted Rasul more broadly, finding that the detainees do have rights under the U.S. Constitution and international treaties, and thus denied the government‘s motion to dismiss the eleven challenges before the court. Specifically, Judge Green held that the detainees are entitled to due process of law under the 64

355 F. Supp. 2d at 314. Id. at 320. 66 Id. at 318. Judge Leon wrote: The President‘s ability to make the decisions necessary to effectively prosecute a Congressionally authorized armed conflict must be interpreted expansively. Indeed, the Constitution does not delegate to Congress the power to ―conduct‖ or to ―make‖ war; rather, Congress has been given the power to ―declare‖ war. This critical distinction lends considerable support to the President‘s authority to make the operational and tactical decisions necessary during an ongoing conflict. Moreover, there can be no doubt that the President‘s power to act at a time of armed conflict is at its strongest when Congress has specifically authorized the President to act. 67 Id. at 326. 68 Id. at 327. It may be argued that the habeas statute itself (28 U.S.C. § 2241), which authorizes challenges of detention based on treaty violations, provided a means for private enforcement, at least prior to its amendment by the MCA. See Eisentrager, 339 U.S. at 789 (while noting that the 1929 Geneva Convention did not provide for private enforcement, considering but rejecting the habeas claim that the treaty vitiated jurisdiction of military commission). 69 Id. at 330 (citations omitted). 70 355 F. Supp. 2d 443 (D.D.C. 2005), vacated and dismissed sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), rev‟d Boumediene v. Bush, 553 U.S., 128 S.Ct. 2229 (2008). 65

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Fifth Amendment, and that the CSRT procedures do not meet that standard. Interpreting the history of Supreme Court rulings on the availability of constitutional rights in territories under the control of the American government (though not part of its sovereign territory), Judge Green concluded that the inquiry turns on the fundamental nature of the constitutional rights being asserted rather than the citizenship of the person asserting them. Accepting that the right not to be deprived of liberty without due process of law is a fundamental constitutional right, the judge applied a balancing test to determine what process is due in light of the government‘s significant interest in safeguarding national security.71 Judge Green rejected the government‘s stance that the CSRTs provided more than sufficient due process for the detainees. Instead, she identified two categories of defects. She objected to the CSRTs‘ failure to provide the detainees with access to material evidence upon which the tribunal affirmed their ―enemy combatant‖ status and the failure to permit the assistance of counsel to compensate for the lack of access. These circumstances, she said, deprived detainees of a meaningful opportunity to challenge the evidence against them. Second, in particular cases, the judge found that the CSRTs‘ handling of accusations of torture and the vague and potentially overbroad definition of ―enemy combatant‖ could violate the due process rights of detainees. Citing detainees‘ statements and news reports of abuse, Judge Green noted that the possibility that evidence was obtained involuntarily from the accused or from other witnesses, whether by interrogators at Guantanamo or by foreign intelligence officials elsewhere, could make such evidence unreliable and thus constitutionally inadmissible as a basis on which to determine whether a detainee is an enemy combatant. Judge Green objected to the definition of ―enemy combatant‖ because it appears to cover ―individuals who never committed a belligerent act or who never directly supported hostilities against the U.S. or its allies.‖ She noted that government counsel had, in response to a set of hypothetical questions, stated that the following could be treated as enemy combatants under the AUMF: ―[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities, a person who teaches English to the son of an al Qaeda member, and a journalist who knows the location of Osama Bin Laden but refuses to disclose it to protect her source.‖72 Judge Green stated that the indefinite detention of a person solely because of his contacts with individuals or organizations tied to terrorism, and not due to any direct involvement in terrorist activities, would violate due process even if such detention were found to be authorized by the AUMF.73 This case was consolidated with the Khalid decision and heard as Boumediene v. Bush by the D.C. Circuit Court of Appeals, and on appeal, the Supreme Court.

Hamdan v. Rumsfeld Salim Ahmed Hamdan, who was captured in Afghanistan and is alleged to have worked for Osama Bin Laden as a bodyguard and driver, brought this challenge to the lawfulness of the Secretary of Defense‘s plan to try him for alleged war crimes before a military 71

Id. at 465 (citing Hamdi v. Rumsfeld). Id. at 475 (internal citations omitted). 73 Id. at 476. 72

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commission,74 arguing that the military commission rules and procedures were inconsistent with the UCMJ75 and that he had the right to be treated as a prisoner of war under the Geneva Conventions.76 U.S. District Judge Robertson agreed, finding no inherent authority in the President as Commander-in Chief of the Armed Forces to create such tribunals outside of the existing statutory authority, with which the military commission rules did not comply. He also concluded that the Geneva Conventions apply to the whole of the conflict in Afghanistan, including under their protections all persons detained in connection with the hostilities there,77 and that Hamdan was thus entitled to be treated as a prisoner of war until his status was determined to be otherwise by a competent tribunal, in accordance with article 5 of the Third Geneva Convention (prisoners of war). The D.C. Circuit Court of Appeals reversed, ruling that the Geneva Conventions are not judicially enforceable. Judge Williams wrote a concurring opinion, construing Common Article 3 to apply to any conflict with a non-state actor,78 without regard to the geographical confinement of such a conflict within the borders of a signatory state. The Circuit Court interpreted the UCMJ language to mean that military commission rules have only to be consistent with those articles of the UCMJ that refer specifically to military commissions, and therefore need not be uniform with the rules that apply to courts-martial. After the appellate court decision was handed down, Congress passed the DTA, which revoked federal court jurisdiction to hear habeas corpus petitions and other causes of action brought by Guantanamo detainees. (The provisions of the DTA are discussed in greater detail infra.) The Supreme Court nevertheless granted review and reversed.

Jurisdiction Before reaching the merits of the case, the Supreme Court declined to accept the government‘s argument that Congress, by passing the DTA, had stripped the Court of its jurisdiction to review habeas corpus challenges by or on behalf of Guantanamo detainees whose petitions had already been filed.79 The Court also declined to dismiss the appeal as urged by the government on the basis that federal courts should abstain from intervening in cases before military tribunals that have not been finally decided,80 noting the dissimilarities between military commission trials and ordinary courts-martial of service members pursuant to procedures established by Congress.81The government‘s argument that the petitioner had 74

344 F. Supp. 2d 152 (D.D.C. 2004), 415 F.3d 33 (D.C. Cir. 2005), rev‟d 548 U.S. 557 (2006). 10 U.S.C. §§ 801 et seq. 76 There are four Conventions, the most relevant of which is The Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3317 (hereinafter ―GPW‖). 77 344 F. Supp. 2d at 161. 78 GPW art. 3. For a discussion of Common Article 3, see CRS Report RL3 1367, Treatment of “Battlefield Detainees” in the War on Terrorism, by Jennifer K. Elsea. 79 Hamdan, 548 U.S.at 583-584. To resolve the question, the majority employed canons of statutory interpretation supplemented by legislative history, avoiding the question of whether the withdrawal of the Court‘s jurisdiction would constitute a suspension of the Writ of Habeas Corpus, or whether it would amount to impermissible ―court-stripping.‖ Justice Scalia, joined by Justices Alito and Thomas in his dissent, interpreted the DTA as a revocation of jurisdiction. 80 Id. at 577-578. The court below had also rejected this argument, 413 F.3d 33, 36 (D.C. Cir. 2005). 81 See id. (stating that the bodies established by the Department of Defense to review the decisions of military commissions ―clearly lack the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces.... ‖). 75

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no rights conferred by the Geneva Conventions that could be adjudicated in federal court likewise did not persuade the Court to dismiss the case. Regardless of whether the Geneva Conventions provide rights enforceable in Article III courts, the Court found that Congress, by incorporating the ―law of war‖ into UCMJ article 21,82 brought the Geneva Conventions within the scope of law to be applied by courts. Justice Scalia, joined by Justices Thomas and Alito, dissented, arguing that the DTA should be interpreted to preclude the Court‘s review.

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Presidential Authority With respect to the authority to create the military commissions, the Court held that any power to create them must flow from the Constitution and must be among those ―powers granted jointly to the President and Congress in time of war.‖83 It disagreed with the government‘s position that Congress had authorized the commissions either when it passed the AUMF84 or the DTA. Although the Court assumed that the AUMF activated the President‘s war powers, it did not view the AUMF as expanding the President‘s powers beyond the authorization set forth in the UCMJ. The Court also noted that the DTA, while recognizing the existence of military commissions, does not specifically authorize them. At most, these statutes ―acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the ‗Constitution and laws,‘ including the law of war.‖85 The Geneva Conventions and the Law of War The habeas corpus statute permits those detained under U.S. authority to challenge their detention on the basis that it violates any statute, the Constitution, or a treaty.86 The D.C. Circuit nevertheless held that the Geneva Conventions are never enforceable in federal courts.87 The Supreme Court disagreed, finding the Conventions were applicable as incorporated by UCMJ Article 21, because ―compliance with the law of war is the condition upon which the authority set forth in Article 21 is granted.‖88 In response to the alternative holding by the court below that Hamdan, as a putative member of Al Qaeda, was not entitled to any of the protections accorded by the Geneva Conventions, the Court concluded that Common Article 3 of the Geneva Conventions applies even to members of Al Qaeda, according to them a minimum baseline of protections, including protection from the ―passing of sentences and the carrying out of executions without previous judgment pronounced by a

82

10 U.S.C. § 821 (―The provisions of [the UCMJ] conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.‖) 83 Hamdan, 548 U.S. at 591 (citing Congress‘s powers to ―declare War ... and make Rules concerning Captures on Land and Water,‖ Art. I, §8, cl. 11, to ―raise and support Armies,‖ Id., cl. 12, to ―define and punish ... Offences against the Law of Nations,‖ Id., cl. 10, and ―To make Rules for the Government and Regulation of the land and naval Forces,‖ Id., cl. 14.). 84 P.L. 107-40, 115 Stat. 224 (2001). 85 Hamdan, 548 U.S. at 594-595. 86 28 U.S.C. § 2241(c)(3)(permitting petitions by prisoners ―in custody in violation of the Constitution or laws or treaties of the United States‖). 87 See 415 F.3d at 39 (citing Johnson v. Eisentrager, 339 U.S. 763, 789, n. 14(1950)). 88 Hamdan, 548 U.S.at 628.

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regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.‖89 While recognizing that Common Article 3 ―obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict,‖ and that ―its requirements are general ones, crafted to accommodate a wide variety of legal systems,‖ the Court found that the military commissions under M.C.O. No. 1 did not meet these criteria. In particular, the military commissions did not qualify as ―regularly constituted‖ because they deviated too far, in the Court‘s view, from the rules that apply to courts-martial, without a satisfactory explanation of the need for such deviation.90 Justice Alito, joined by Justices Scalia and Thomas, dissented, arguing that the Court is bound to defer to the President‘s plausible interpretation of the treaty language.

Analysis While the Hamdan Court declared the military commissions as constituted under the President Bush‘s Military Order to be ―illegal,‖ it left open the possibility that changes to the military commission rules could cure any defects by bringing them within the law of war and conformity with the UCMJ, or by asking Congress to authorize or craft rules tailored to the ―Global War on Terrorism‖ (GWOT). The Court did not resolve the extent to which the detainees, as aliens held outside of U.S. territory, have constitutional rights enforceable in federal court. The decision may affect the treatment of detainees outside of their criminal trials; for example, in interrogations for intelligence purposes. Common Article 3 of the Geneva Conventions mandates that all persons taking no active part in hostilities, including those who have laid down their arms or been incapacitated by capture or injury, are to be treated humanely and protected from ―violence to life and person,‖ torture, and ―outrages upon personal dignity, in particular, humiliating and degrading treatment.‖ Insofar as these protections are incorporated in the UCMJ and other laws, it would seem the Court is ready to interpret and adjudicate them, to the extent it retains jurisdiction to do so. It is not clear how the Court views the scope of the GWOT, however, because its decisions on the merits have been limited to cases arising out of hostilities in Afghanistan. The opinion reaffirms the holding in Rasul v. Bush91 that the AUMF does not provide the President a ―blank check,‖ and, by finding in favor of a noncitizen held overseas, seems to have expanded the Hamdi comment that

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GPW art. 3 § 1(d). The identical provision is included in each of the four Geneva Conventions and applies to any ―conflict not of an international character.‖ The majority declined to accept the President‘s interpretation of Common Article 3 as inapplicable to the conflict with Al Qaeda and interpreted the phrase ―in contradistinction to a conflict between nations,‖ which the Geneva Conventions designate a ―conflict of international character‖. Hamdan, 548 U.S. at 630. 90 Id. at 633-634 (plurality opinion); id. (Kennedy, J., concurring) at 651. Justice Stevens, joined by Justices Ginsburg, Breyer, and Souter, further based their conclusion on the basis that M.C.O. No. 1 did not meet all criteria of art. 75 of Protocol I to the Geneva Conventions of 1949, adopted in 1977 (Protocol I). While the United States is not party to Protocol I, the plurality noted that many authorities regard it as customary international law. 91 542 U.S. 466 (2004).

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[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most 92 assuredly envisions a role for all three branches when individual liberties are at stake.

The dissenting views also relied in good measure on actions taken by Congress, seemingly repudiating the view expressed earlier by the Executive that any efforts by Congress to legislate with respect to persons captured, detained, and possibly tried in connection with the GWOT would be an unconstitutional intrusion into powers held exclusively by the President.93 Expressly or implicitly, all eight participating Justices applied the framework set forth by Justice Jackson in his famous concurrence in the Steel Seizures case,94 which accords greater deference to the President in cases involving national security where he acts with express congressional authority than when he acts alone. The differing views among the Justices seem to have been a function of their interpretation of the AUMF and other acts of Congress as condoning or limiting executive actions.95 The Military Commissions Act of 2006 likely resolves many issues regarding the scope of authority the President may exercise; however, the constitutionality of the various measures remains to be resolved, assuming the courts retain jurisdiction to resolve them.

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Al-Marri The case of Ali Saleh Kahlah al-Marri differs significantly from cases discussed above in that the petitioner, a lawful alien resident, was arrested and is imprisoned within the United States. AlMarri, a Qatari student, was arrested in December 2001 in Peoria, Illinois, and transported to New York City, where he was held as a material witness for the grand jury investigating the 9/11 attacks. He was later charged with financial fraud and making false statements and transferred back to Peoria. Before his case went to trial, however, he was declared an ―enemy combatant‖ and transferred to military custody in South Carolina. AlMarri‘s counsel filed a petition for habeas corpus challenging al-Marri‘s designation and detention as an ―enemy combatant.‖ The petition was eventually dismissed for lack of jurisdiction by the U.S. Court of Appeals for the Seventh Circuit,96 and a new petition was filed in the Fourth Circuit. In March 2005, Judge Floyd agreed with the government that the detention was authorized by the AUMF and transferred the case to a federal magistrate to examine the factual allegations supporting the government‘s detention of the petitioner as an enemy combatant.97 The government provided a declaration asserting that al-Marri is closely associated with Al Qaeda and had been sent to the United States prior to September 11, 2001 92

542 U.S. 507, 535 (2004). See, e.g., Oversight of the Department of Justice: Hearing Before the Senate Judiciary Committee, 107th Cong. (2002) (testimony of Attorney General John Ashcroft) (arguing that a statute that could be read to interfere with the executive power to detain enemy combatants must be interpreted otherwise to withstand constitutional scrutiny). 94 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 95 For information about relevant legislation, see CRS Report RL3 1600, The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice, by Jennifer K. Elsea. 96 Al-Marri v. Rumsfeld, 360 F.3d 707 (7 th Cir. 2004), cert. denied 543 U.S. 809 (2004). 97 Al-Marri v. Hanft, 378 F. Supp.2d 673 (D. S.C. 2005) (order denying summary judgment). 93

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to serve as a ―sleeper agent‖ for Al Qaeda in order to ―facilitate terrorist activities and explore disrupting this country‘s financial system through computer hacking.‖98 The magistrate judge recommended the dismissal of the petition on the basis of information the government provided, which al-Marri did not attempt to rebut and which the magistrate judge concluded was sufficient for due process purposes in line with the Hamdi decision.99 The district judge adopted the magistrate judge‘s report and recommendations in full, rejecting the petitioner‘s argument that his capture away from a foreign battlefield precluded his designation as an ―enemy combatant.‖100 Al-Marri appealed, and the government moved to dismiss on the basis that the MCA strips the court of jurisdiction. The petitioner asserted that Congress did not intend to deprive him of his right to habeas or that, alternatively, the MCA is unconstitutional. The majority avoided the constitutional question by finding that al-Marri does not meet the statutory definition as an alien who ―has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.‖101 Turning to the merits, the majority found that al-Marri does not fall within the legal category of ―enemy combatant‖ within the meaning of Hamdi, and that the government could continue to hold him only if it charges him with a crime, commences deportation proceedings, obtains a material witness warrant in connection with grand jury proceedings, or detains him for a limited time pursuant to the USA PATRIOT Act.102 In so holding, the majority rejected the government‘s contention that the AUMF authorizes the President to order the military to seize and detain persons within the United States under the facts asserted by the government, or that, alternatively, the President has inherent constitutional authority to order the detention.

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Al-Marri v. Pucciarelli, 534 F.3d 213, 220 (4 th Cir. 2008)(Motz, J., concurring)(citing declaration Jeffrey N. Rapp, Director of the Joint Intelligence Task Force for Combating Terrorism). 99 Al-Marri v. Wright, 443 F. Supp. 2d 774 (D. S.C. 2006) (citing Hamdi v. Rumsfeld, 542 U.S. 507 (2004)). With respect to the ―due process hearing‖ required to establish that an enemy combatant is properly held, the Hamdi plurality stated that: enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government‘s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemycombatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. 100 Id. at 778-80. 101 The court held that the MCA requires a two-step process for determining whether persons are properly detained as enemy combatants, but that the President‘s determination of the petitioner‘s ―enemy combatant‖ status fulfilled only the first step. The court next found that al-Marri could not be said to be awaiting such a determination within the meaning of the MCA, inasmuch as the government was arguing on the merits that the presidential determination had provided all of the process that was due, and the government had offered the possibility of bringing al-Marri before a CSRT only as an alternative course of action in the event the petition were dismissed. Further, the majority looked to the legislative history of the MCA, from which it divined that Congress did not intend to replace habeas review with the truncated review available under the amended DTA in the case of aliens within the United States, who it understood to have a constitutional as opposed to merely statutory entitlement to seek habeas review. Al-Marri v. Wright , 487 F.3d 160, 172 (4th Cir. 2007), vacated sub nom. Al-Marri v. Pucciarelli, 534 F.3d 213 (2008)(per curiam). 102 Id. at 196.

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The government cited the Hamdi decision and the Fourth Circuit‘s decision in Padilla v. Hanft103 to support its contention that al-Marri is an enemy combatant within the meaning of the AUMF and the law of war. The court, however, interpreted Hamdi as confirming only that ―the AUMF is explicit congressional authorization for the detention of individuals in the narrow category ... [of] individuals who were ‗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.‘‖104 Likewise, Padilla, although captured in the United States, could be detained pursuant to the AUMF only because he had been, prior to returning to the United States, ―‗armed and present in a combat zone‘ in Afghanistan as part of Taliban forces during the conflict there with the United States.‖105 The court explained that the two cases cited by the government, Hamdi and Padilla, involved situations similar to the World War II case Ex parte Quirin,106 in which the Supreme Court agreed that eight German saboteurs could be tried by military commission because they were enemy belligerents within the meaning of the law of war.107 In contrast, al-Marri‘s situation was to be likened to Ex parte Milligan,108 the Civil War case in which the Supreme Court held that a citizen of Indiana accused of conspiring to commit hostile acts against the Union was nevertheless a civilian who was not amenable to military jurisdiction.109 The court concluded that enemy combatant status rests, in accordance with the law of war, on affiliation with the military arm of an enemy government in an international armed conflict. Judge Hudson dissented, arguing that the broad language of the AUMF, which authorized the President ―to use all necessary and appropriate force against those nations, organizations, or persons he determines‖ were involved in the terrorist attacks of September 11, 2001, ―would certainly seem to embrace surreptitious al Qaeda agents operating within the continental United States.‖110 He would have found no meaningful distinction between the present case and Padilla. The government petitioned for and was granted a rehearing en banc.111 On rehearing, the narrowly divided Fourth Circuit full bench rejected the earlier panel‘s decision in favor of the government‘s position that al-Marri fit the legal definition of ―enemy combatant,‖ but also reversed the district court‘s decision that al-Marri was not entitled to present any more evidence to refute the government‘s case against him. Four of the judges on the panel would have retained the earlier decision, arguing that it was not within the court‘s power to expand the definition of ―enemy combatant‖ beyond the law-of-war principles at the heart of the

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423 F.3d 386 (4th Cir. 2005). The government is no longer holding Jose Padilla as an enemy combatant, having turned him over to civil authorities for trial on charges associated with terrorism. 104 Al-Marri, 487 F.3d at 180 (citing Hamdi at 516-17)(emphasis in original). 105 Id. (citing Padilla, 423 F.3d at 390-9 1). 106 317 U.S. 1 (1942). 107 Al-Marri, 487 F.3d at 179 (citing Quirin, 317 U.S. at 37-38; Hamdi, 542 U.S. at 519; Padilla, 423 F.3d at 391). 108 71 U.S. (4 Wall.) 2 (1866). 109 Al-Marri, 487 F.3d at 189. 110 Id. at 196 (Hudson, J., dissenting). 111 Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008)(per curiam). The intervening Supreme Court decision in Boumediene led the court to reject the government‘s contention that the MCA had divested the court of jurisdiction.

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Supreme Court‘s Hamdi decision.112 However, these four judges joined in Judge Traxler‘s opinion to remand for evidentiary proceedings in order ―at least [to] place the burden on the Government to make an initial showing that normal due process protections are unduly burdensome and that the Rapp declaration is ‗the most reliable available evidence,‘ supporting the Government‘s allegations before it may order al-Marri‘s military detention.‖113 Judge Traxler, whose opinion is controlling for the case although not joined in full by any other panel member, agreed with the four dissenting judges that the AUMF ―grants the President the power to detain enemy combatants in the war against al Qaeda, including belligerents who enter our country for the purpose of committing hostile and war-like acts such as those carried out by the al Qaeda operatives on 9/11.‖114 Accordingly, he would define ―enemy combatant‖ in the GWOT to include persons who ―associate themselves with al Qaeda‖ and travel to the United States ―for the avowed purpose of further prosecuting that war on American soil, ... even though the government cannot establish that the combatant also ‗took up arms on behalf of that enemy and against our country in a foreign combat zone of that war.‘‖115 Under this definition, American citizens arrested in the United States could also be treated as enemy combatants under similar allegations,116 at least if they had traveled abroad and returned for the purpose of engaging in activity related to terrorism on behalf of Al Qaeda. However, Judge Traxler did not agree that al-Marri had been afforded due process by the district court to challenge the factual basis for his designation as an enemy combatant. While recognizing that the Hamdi plurality had suggested that hearsay evidence might be adequate to satisfy due process requirements for proving enemy combatant status, Judge Traxler did not agree that such relaxed evidentiary standards are necessarily appropriate when dealing with a person arrested in the United States:

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112

Id. at 227-232 (Motz, J. concurring)(citing Hamdi, 542 U.S. at 518). Judge Motz, joined by three other judges, characterized leading precedents as sharing two characteristics: (1) they look to law-of-war principles to determine who fits within the ―legal category‖ of enemy combatant; and (2) following the law of war, they rest enemy combatant status on affiliation with the military arm of an enemy nation. Under their interpretation of the law of war, there is no combatant status in non-international 113 Al-Marri, 534 F.3d at 553 (Motz, J. concurring). 114 Id. at 253-254 (Traxler, J., concurring). 115 Id. at 258-259 (Traxler, J., concurring). Judge Traxler further suggested that the types of activities that would distinguish a combatant from a civilian enemy would include violent activities. See id. at 261 (describing the allegations that al-Marri ―directly allied himself with al Qaeda abroad, volunteered for assignments (including a martyr mission), received training and funding from al Qaeda abroad, was dispatched by al Qaeda to the United States as an al Qaeda operative with orders to serve as a sleeper agent, and was tasked with facilitating and ultimately committing terrorist attacks against the United States within this country‖). The dissenting judges suggested similar definitions for determining who may be treated as an ―enemy combatant.‖ See id. at 285 (Williams, J., concurring in part and dissenting in part)(defining enemy combatant covered by the AUMF as ―an individual who meets two criteria: (1) he attempts or engages in belligerent acts against the United States, either domestically or in a foreign combat zone; (2) on behalf of an enemy force‖); id. at 323-324 (Wilkinson, J., concurring in part and dissenting in part)(proposing two-part test in which ―an ‗enemy‘ is any individual who is (1) a member of (2) an organization or nation against whom Congress has declared war or authorized the use of military force‖ and a combatant is ― a person who knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of an enemy nation or organization‖). 116 See id. at 279-280 (Gregory, J., concurring).

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Because al-Marri was seized and detained in this country,... he is entitled to habeas review by a civilian judicial court and to the due process protections granted by our Constitution, interpreted and applied in the context of the facts, interests, and burdens at hand. To determine what constitutional process al-Marri is due, the court must weigh the competing interests, and the burden-shifting scheme and relaxed evidentiary standards discussed in Hamdi serve as important guides in this endeavor. Hamdi does not, however, provide a cookie-cutter procedure appropriate for every alleged enemy-combatant, regardless of the circumstances of the alleged combatant‘s seizure or the actual burdens the government might 117 face in defending the habeas petition in the normal way. In December 2008, the Supreme 118 Court agreed to hear an appeal of the Al-Marri ruling, potentially setting the stage for the Court to make a definitive pronouncement regarding the President‘s authority to militarily detain terrorist suspects apprehended away from the Afghan battlefield. However, on January 22, 2009, President Obama instructed the Attorney General, Secretary of Defense, and other designated officials to review the factual and legal basis for alMarri‘s continued detention as 119 an enemy combatant, and ―identify and thoroughly evaluate alternative dispositions.‖ This review culminated in criminal charges being brought against alMarri in the U.S. District Court for the Central District of Illinois, alleging that al-Marri provided material support to Al 120 Qaeda and had conspired with others to provide material support to Al Qaeda. The United States thereafter moved for the Supreme Court to dismiss al-Marri‘s appeal as moot and authorize his transfer from military to civilian custody pending his criminal trial. On March 6, 2009, the Court granted the government‘s application concerning the transfer of alMarri to civilian custody. It vacated the Fourth Circuit‘s judgment and remanded the case back to the 121 appellate court with instructions to dismiss the case as moot. Accordingly, the appellate court‘s earlier decision regarding the President‘s authority to detain terrorist suspects captured within the United States is no longer binding precedent in the Fourth Circuit.

The dismissal of al-Marri‘s case means that the President‘s legal authority to militarily detain terrorist suspects apprehended in the United States has not been definitively settled. Indeed, the transfer of al-Marri to civilian custody to face trial in federal civilian court means that the United States no longer holds any terrorist suspect in military detention who was apprehended in the United States. Whether circumstances will arise in the ―war on terror‖ or some other military conflict that will compel the Supreme Court to more definitively address the President‘s military detention authority remains to be seen.

117

Id. at 272. Judge Traxler formulated a general rule under which such enemy combatants ―would be entitled to the normal due process protections available to all within this country, including an opportunity to confront and question witnesses against him, [unless] the government can demonstrate to the satisfaction of the district court that this is impractical, outweighed by national security interests, or otherwise unduly burdensome because of the nature of the capture and the potential burdens imposed on the government to produce non-hearsay evidence and accede to discovery requests, [in which case] alternatives should be considered and employed.‖ Id. at 273. 118 129 S.Ct. 680 (2008). 119 al-Marri Memo, supra footnote 14. 120 Department of Justice, ―Ali Al-Marri Indicted for Providing Material Support to Al-Qaeda,‖ press release, February 27, 2009, http://www.usdoj.gov/opa/pr/2009/February/09-ag-177.html. 121 Al-Marri v. Spagone, -- S.Ct. --, 2009 WL 564940 (U.S. March 6, 2009).

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DETAINEE TREATMENT ACT OF 2005 (DTA)

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The DTA, passed after the Court‘s decision in Rasul, requires uniform standards for interrogation of persons in the custody of the Department of Defense,122 and expressly bans cruel, inhuman, or degrading treatment of detainees in the custody of any U.S. agency.123 The prohibited treatment is defined as that which would violate the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution, as the Senate has interpreted ―cruel, inhuman, or degrading‖ treatment banned by the U.N. Convention Against Torture.124 The provision does not create a cause of action for detainees to ask a court for relief based on inconsistent treatment, and it divests the courts of jurisdiction to hear challenges by those detained at Guantanamo Bay based on their treatment or living conditions.125 It also provides a legal defense to U.S. officers and agents who may be sued or prosecuted based on their treatment or interrogation of detainees.126 This language appears to have been added as a compromise because the Bush Administration reportedly sought to have the Central Intelligence Agency excepted from the prohibition on cruel, inhuman and degrading treatment on the grounds that the President needs ―maximum flexibility in dealing with the global war on terrorism.‖127 The DTA also includes a modified version of the ―Graham-Levin Amendment,‖128 which requires the Defense Department to submit to the Armed Services and Judiciary Committees the procedural rules for determining detainees‘ status.129 The amendment neither authorizes nor requires a formal status determination, but it does require that certain congressional committees be notified 30 days prior to the implementation of any changes to the rules. As initially adopted by the Senate, the amendment would have required these procedural rules to preclude evidence determined by the board or tribunal to have been obtained by undue coercion, however, the conferees modified the language so that the tribunal or board must assess, ―to the extent practicable ... whether any statement derived from or relating to such 122

Section 1002 of P.L. 109-148 requires the DOD to follow the Army Field Manual for intelligence interrogation. See Department of the Army Field Manual 2-22.3 (FM 34-52), Human Intelligence Collector Operations (2006). 123 Section 1003 of P.L. 109-148. See CRS Report RL33655, Interrogation of Detainees: Requirements of the Detainee Treatment Act, by Michael John Garcia. 124 Section 1003(d) of P.L. 109-148. For more information, see CRS Report RL32438, U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques, by Michael John Garcia. 125 Section 1005 of P.L. 109-148 (denying aliens in military custody privilege to file writ of habeas corpus or ―any other action against the United States or its agents relating to any aspect of the[ir] detention ... ‖) 126 Section 1004 of P.L. 109-148 provides a defense in litigation related to ―specific operational practices,‖ involving detention and interrogation where the defendant:ot know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. 127 See Eric Schmitt, Exception Sought in Detainee Abuse Ban, N.Y. TIMES, October 25, 2005, at 16. 128 151 CONG. REC. S12667 (daily ed. November 10, 2005)(introduced by Sen. Graham, passed by roll call vote, 49 - 42), as amended by S.Amdt. 2524, 151 CONG. REC. S12771. 129 The amendment refers to both the Combatant Status Review Tribunals (―CSRTs‖), the initial administrative procedure to confirm the detainees‘ status as enemy combatants, and the Administrative Review Boards, which were established to provide annual review that the detainees‘ continued detention is warranted.

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detainee was obtained as a result of coercion‖ and ―the probative value, if any, of any such statement.‖ The Graham-Levin Amendment also eliminated the federal courts‘ statutory jurisdiction over habeas claims by aliens detained at Guantanamo Bay, but provides for limited appeals of status determinations made pursuant to the DOD procedures for Combatant Status Review Tribunals (CSRTs). In June 2008, the Supreme Court invalidated the provision that eliminated habeas corpus jurisdiction, but stated that the DTA appellate process ―remains intact,‖130 although it appears that the process is not an adequate substitute for habeas review. However, it no longer constitutes the sole avenue by which a detainee may seek judicial review of his detention, as a detainee may also seek habeas review by a federal district court. It appears that courts will not require detainees to exhaust their options under the DTA appeals process prior to seeking habeas review, at least in cases currently pending. Under the appellate process prescribed by the DTA, the D.C. Circuit Court of Appeals has exclusive jurisdiction to hear appeals of any status determination made by a ―Designated Civilian Official,‖ but the review is limited to a consideration of whether the determination was made consistently with applicable DOD procedures, including whether it is supported by the preponderance of the evidence, but allowing a rebuttable presumption in favor of the government. The procedural rule regarding the use of evidence obtained through undue coercion applies prospectively only, so that detainees who have already been determined by CSRTs to be enemy combatants may not base an appeal on the failure to comply with that procedure. Detainees may also appeal status determinations on the basis that, ―to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.‖ Jurisdiction was to cease if the detainee were transferred from DOD custody. (Currently, jurisdiction is cut off if the detainee is transferred from U.S. custody.) The DTA also provides for an appeal to the Court of Appeals for the District of Columbia Circuit of final sentences rendered by a military commission. As initially enacted, the DTA required the court to review capital cases or cases in which the alien was sentenced to death or to a term of imprisonment for 10 years or more, and made review over convictions with lesser penalties discretionary. The scope of review was limited to considering whether the decision applied the correct standards consistent with Military Commission Order No. 1 (implementing President Bush‘s Military Order) and whether those standards were consistent with the Constitution and laws of the United States, to the extent applicable.

THE MILITARY COMMISSIONS ACT OF 2006 (MCA) After the Court‘s decision in Hamdan, the Bush Administration proposed legislation to Congress,131 a version of which was enacted on October 17, 2006. The Military Commissions 130 131

Boumediene, 128 S.Ct. at 2275 (2008). Senator Frist introduced the Bush Administration‘s proposal as the ―Bringing Terrorists to Justice Act of 2006,‖ S. 3861. The Senate Armed Services Committee reported favorably a bill called the ―Military Commissions Act of 2006‖ (S. 3901), which was in many respects similar to the Administration‘s proposal, but varied with respect to jurisdiction and some rules of evidence. The House Armed Services Committee approved H.R. 6054, also called the ―Military Commissions Act

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Act of 2006 (MCA) authorized the trial of certain detainees by military commission and prescribed detailed rules to govern their procedures.132 The MCA also amended the DTA provisions regarding appellate review and habeas corpus jurisdiction.

Provisions Affecting Court Jurisdiction

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The MCA expanded the DTA to make its review provisions the exclusive remedy for all aliens detained as enemy combatants anywhere in the world, rather than only those housed at Guantanamo Bay, Cuba. It does not, however, require that all detainees undergo a CSRT or a military tribunal in order to continue to be confined. Thus, any aliens detained outside of Guantanamo Bay might be effectively denied access to U.S. courts, except perhaps by means of habeas review. Appeals from the final decisions of military commissions continue to go to the United States Court of Appeals for the District of Columbia Circuit,133 but are routed through a new appellate body, the Court of Military Commission Review (CMCR). CSRT determinations continue to be appealable directly to the D.C. Circuit. Review of decisions of a military commission may only concern matters of law, not fact.134 Appeals may be based on inconsistencies with the procedures set forth by the MCA, or, to the extent applicable, the Constitution or laws of the United States. The MCA § 7 revoked U.S. courts‘ jurisdiction to hear habeas corpus petitions by all aliens in U.S. custody as enemy combatants, including lawful enemy combatants, regardless of the place of custody. It replaced 28 U.S.C. § 2241(e), the habeas provision added by the DTA, with language providing that (1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) [review of CSRT determinations] and (3) [review of final decisions of military commissions] of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have 135 been properly detained as an enemy combatant or is awaiting such determination. of 2006,‖ which closely tracked the Bush Administration‘s proposal. After reaching an agreement with the White House with respect to several provisions in S. 3901, Senator McCain introduced S. 3930, again entitled the ―Military Commissions Act of 2006.‖ Representative Hunter subsequently introduced a modified version of H.R. 6054 as H.R. 6166, which the House of Representatives passed on September 28, 2006. A manager‘s amendment to S. 3930, substantially identical to the bill passed by the House, was passed by the Senate the following day. 132 P.L. 109-366. For a further description of the procedures associated with these military commissions, see CRS Report RL33688, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice, by Jennifer K. Elsea. 133 MCA § 5. 134 10 U.S.C. § 950g(b). 135 MCA § 7.

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This amendment took effect on the date of its enactment, and applied to ―all cases, without exception, pending on or after the date of [enactment] which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.‖ In Boumediene v. Bush, discussed infra, the Supreme Court held that MCA § 7 constituted an unconstitutional suspension of the writ of habeas corpus, and authorized Guantanamo detainees to petition federal district courts for habeas review of CSRT determinations of their enemy combatant status. Under the DTA appeals provision, there is no apparent limit to the amount of time a detainee could spend awaiting a determination as to combatant status. Aliens who continue to be detained despite having been determined not to be enemy combatants are not permitted to challenge their continued detention or their treatment, nor are they able to protest their transfer to another country, for example, on the basis that they fear torture or persecution. However, these matters may be raised in habeas petition. The extent of relief the courts may be able to grant remains to be addressed by the courts.

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Provisions Regarding the Geneva Conventions A continuing source of dispute in the detention and treatment of detainees is the application of the Geneva Convention. As noted previously, the habeas corpus statute has traditionally provided for, among other things, challenges to allegedly unlawful detentions based on rights found in treaties.136 Thus, for instance, Common Article 3 of the 1949 Geneva Conventions, which prohibits the ―passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples,‖ has been used as a basis for challenging the confinement of detainees.137 Section 5 of the MCA, however, specifically precludes the application of the Geneva Conventions to habeas or other civil proceedings.138 Further, the MCA provides that the Geneva Conventions may not be claimed as a source of rights by an alien who is subject to military commission proceedings.139 Rather, Congress deems that the military commission structure established by the act complies with the requirement under Common Article 3 of the Geneva Convention that trials be by a regularly constituted court.140 136

28 U.S.C. § 2241. GPW art. 3 § 1(d). See Hamdan, 126 S.Ct. at 2796-2797 (noting the application of this provision of the Geneva Conventions to detainees through the UCMJ Article 21). 138 MCA § 5(a) provides that ―No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.‖ 139 MCA § 3 (10 U.S.C. § 948c) provides that ―No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.‖ 140 MCA § 3 (10 U.S.C. § 948b(f), as amended) provides that a military commission is a ―regularly constituted court, affording all the necessary ‗judicial guarantees which are recognized as indispensable by civilized peoples‘ for purposes of common Article 3 of the Geneva Conventions.‖ While this language could be construed as directing a court to find that the MCA does not conflict with the Geneva Conventions, a better reading would appear to be that, to the extent that there is a conflict between the MCA and the Geneva Conventions, the MCA should be given precedence. See generally Robertson v. Seattle Audubon Soc‘y, 503 U.S. 429 (1992). 137

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In addition, the act provides that the President shall have the authority to interpret the meaning of the Geneva Conventions.141 The intended effect of this provision is unclear. While the President generally has a role in the negotiation, implementation, and domestic enforcement of treaty obligations,142 this power does not generally extend to ―interpreting‖ treaty obligations, a role more traditionally associated with courts.143 In general, Congress is prohibited from exercising powers allocated to another branch of government.144 In United States v. Klein,145 the Congress passed a law designed to frustrate a finding of the Supreme Court as to the effect of a presidential pardon. 146 Similarly, a law that was specifically intended to grant the authority of the President to adjudicate or remedy treaty violations could violate the doctrine of separation of powers, as providing relief from acts in violation of treaties is a judicial branch function.147 Instead, what appears to be the main thrust of this language is to establish the authority of the President within the Executive Branch to issue interpretative regulations by Executive Order.148 However, the context in which this additional authority would be needed is unclear. One possible intent of this provision is that the President is being given the authority to ―interpret‖ the Geneva Convention for diplomatic purposes (e.g., to define treaty obligations and encourage other countries to conform to such definitions). This interpretation seems unlikely, as the President‘s power in this regard is already firmly established.149 Another possible meaning is that the President is being given the authority to apply the Geneva Conventions to particular fact situations, such as specifying what type of interrogation techniques may be lawfully applied to a particular individual suspected of being an enemy

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141

MCA § 6(a)(3)(A) provides that ―the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.‖ 142 See, e.g., id. (President is given power to promulgate higher standards and administrative regulations for violations of treaty obligations). 143 See, e.g., MCA § 6(a)(3)(B)(―No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions 144 See Dickerson v. United States, 530 U.S. 428, 438 (2000)(striking down congressional statute purporting to overturn the Court‘s Fourth Amendment ruling in Miranda v. Arizona); City of Boerne v. Flores, 521 U.S. 507, 519 (1997)(Congress‘ enforcement power under the Fourteenth Amendment does not extend to the power to alter the Constitution); Plaut v. Spendthrift Farm, 514 U.S. 211, 225 (Congress may not disturb final court rulings). 145 80 U.S. (13 Wall.) 128 (1871). 146 The Court struck down the law, essentially holding that the Congress had an illegitimate purpose in passage of the law. ―[T]he language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. Its great and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have.... It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.‖ 80 U.S. at 146. The Court also found that the statute impaired the effect of presidential pardon, and thus ―infringe[ed] the constitutional power of the Executive.‖ Id. at 147. 147 See generally Miller v. French, 530 U.S. 327, 350-5 1 (2000)(Souter, J., concurring). 148 MCA § 6(a)(3)(B). 149 ―If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essential for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our country was justified in its legislation, are not matters for judicial cognizance.‖ Whitney v. Robertson 124 U.S. 190, 194 (1888).

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combatant. This interpretation is possible, but it is not clear how the power to ―interpret‖ would be significant in that situation, as the MCA precludes application of the Geneva Convention in those contexts in which such interrogations would be challenged—military commissions, habeas corpus, or any other civil proceeding.150 The more likely intent of this language would be to give the President the authority to promulgate regulations prescribing standards of behavior of employees and agents of federal agencies. For instance, this language might be seen as authorizing the President to issue regulations to implement how agency personnel should comply with the Geneva Conventions, policies which might otherwise be addressed at the agency level. Thus, for instance, if the CIA had established internal procedures regarding how to perform interrogation consistent with the Geneva Convention, then this language would explicitly authorize the President to amend such procedures by Executive Order.151 Whether the President already had such power absent this language is beyond the scope of this report.

POST-MCA ISSUES AND DEVELOPMENTS Shortly after the enactment of the MCA, the government filed motions to dismiss all of the habeas petitions in the D.C. Circuit involving detainees at Guantanamo Bay152 and the petition of an alien detained as an enemy combatant in a naval brig in South Carolina.153 Legislation introduced to amend the MCA did not reach the floor of either house.154

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Possible Application to U.S. Citizens Some observers raised concern that the MCA permits the President to detain American citizens as enemy combatants without trial.155 The prohibition in the MCA with respect to habeas corpus petitions applied only to those filed by or on behalf of aliens detained by the United States as enemy combatants. However, the MCA can be read by implication to permit the detention of U.S. citizens as enemy combatants, although it does not permit their trial by 150

MCA § 5(a). It is unclear why the MCA addresses the application of the Geneva Convention to habeas corpus proceeding brought by detainees, since such suits are precluded by the DTA and the MCA. Section 1405(e) of P.L. 109-63; MCA, §7(a). It may be intended to apply to habeas cases brought by U.S. citizens or by aliens who do not fall under the definition of ―enemy combatant.‖ On the other hand, as will be discussed infra, there may be constitutional issues associated with limiting access of enemy combatants to habeas corpus proceeding. In the event the habeas restrictions of the DTA are found to be unconstitutional, then this provision may become relevant to those proceedings. 151 Executive Order 13340, Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, 72 Fed. Reg. 40707 (July 20, 2007). 152 See Karen DeYoung, Court Told It Lacks Power in Detainee Cases, WASH. POST, October 20, 2006, at A18 (reporting notice submitted by Justice Department to courts of intention to move for dismissal of pending enemy combatant cases). 153 Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007), vacated sub nom. Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (per curiam). 154 See S. 4081 and H.R. 6381, 109th Cong. 155 See, e.g., Scott Shane and Adam Liptak, Detainee Bill Shifts Power to President, N.Y. TIMES, September 30, 2006, at A1.

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military commission, which could affect their entitlement to relief using habeas corpus procedures. A plurality of the Supreme Court held in 2004, in Hamdi v. Rumsfeld,156 that the President has the authority to detain U.S. citizens as enemy combatants pursuant to the AUMF,157 but that the determination of combatant status is subject to constitutional due process considerations. The Hamdi plurality was limited to an understanding that the phrase ―enemy combatant‖ means 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,‖158 but left it to lower courts to flesh out a more precise definition. The U.S. Court of Appeals for the Fourth Circuit found that the definition continued to apply to a U.S. citizen who returned to the United States from Afghanistan and was arrested at the airport.159 More recently, the Fourth Circuit appeared to have expanded the definition of ―enemy combatant‖ to individuals arrested in the United States on suspicion of planning to participate in terrorist acts without necessarily having engaged in hostilities in Afghanistan, but this ruling was part of a judgment which was thereafter vacated by the Supreme Court. (See discussion of Al-Marri, supra.) In theory, the executive branch could detain a citizen as an enemy combatant and argue that the definition of ―unlawful enemy combatant‖ provided in the MCA, which does not explicitly limit the definition to aliens and includes persons who provide material support to terror groups engaged in hostilities against the United States, should also apply to the detention authority already found by virtue of the AUMF. Constitutional due process would apply, and the citizen could petition for habeas corpus to challenge his detention, but under the MCA, the citizen- combatant would not be able to assert rights based on the Geneva Convention in support of his contention that he is not an enemy combatant. In that sense, U.S. citizens could be affected by the MCA even though it does not directly apply to U.S. citizens. On the other hand, since the MCA definition for unlawful enemy combatant applies on its face only for the purposes of the new chapter 47a of Title 10, U.S. Code (providing for the trial by military commission of alien unlawful enemy combatants), it may be argued that outside of that context, the term ―enemy combatant‖ should be understood in the ordinary sense, that is, to include only persons who participate directly in hostilities against the United States. This interpretation seems unlikely, given that it would also mean that this narrower definition of ―enemy combatant‖ was also meant to apply in the context of the MCA‘s habeas corpus provisions, such that some aliens who fall under the jurisdiction of a military commission under the MCA would nevertheless have been able to argue that the MCA did not affect their right to petition for habeas corpus or pursue any other cause of action in U.S. court, a reading that does not seem consistent with Congress‘s probable intent. Further, it does not appear that Congress meant to apply a different definition of ―enemy combatant‖ to persons depending on their citizenship. Congress could specify that U.S. citizens captured in the context of the ―Global War on Terror‖ be subject to trial in U.S. court for treason or a violation of any other statute, or prescribe procedures for determining whether U.S. citizens are subject to detention as enemy combatants, if constitutional, but it has not done so. 156

542 U.S. 507 (2004). P.L. 107-40, 115 Stat. 224 (2001). 158 542 U.S. at 516. 159 Padilla v. Hanft, 423 F.3d 386 (4 th Cir. 2005). 157

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DTA CHALLENGES TO DETENTION

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At the same time as it was considering the Boumediene case, the D.C. Circuit was reviewing several challenges brought pursuant to the DTA in which detainees contested CSRT determinations that they are properly detained as ―enemy combatants.‖ The most advanced of these cases involved Haji Bismullah, who was captured in Afghanistan in 2003, and Husaifa Parhat and six other detainees, all ethnic Chinese Uighers captured in Pakistan in December 2001. In January 2009, the D.C. Circuit ruled that the judicial review system established under by the DTA had been effectively nullified by the Supreme Court‘s ruling in Boumediene, meaning that detainees could only challenge the legality of their confinement via habeas corpus review.

Bismullah v. Gates At issue at this stage in the proceedings was a series of motions filed by both parties seeking to establish procedures governing access to classified information, attorneys‘ access to clients, and other matters. The petitioners sought to have the court adopt rules similar to what the district court had ordered when the cases were before it on petitions of habeas corpus. The government sought to establish rules restricting scope of discovery and attorneyclient communication to what it viewed as the proper scope of the court‘s review, that is, the CSRT proceedings. The D.C. Circuit in July 2007 issued an order rejecting the government‘s motion to limit the scope of the court‘s review to the official record of the CSRT hearings (Bismullah I).160 Rather, the court decided, in order to determine whether a preponderance of evidence supported the CSRT determinations, it must have access to all the information a CSRT ―is authorized to obtain and consider, pursuant to the procedures specified by the Secretary of Defense.‖ The court denied the petitioners‘ motion for discovery, at least for the time being, stating there was no need for additional evidence to challenge a CSRT ‘s ruling that specific evidence or a witness was not reasonably available. And, because the DTA does not authorize the court to hold a status determination invalid as ―arbitrary and capricious,‖ there was no need for it to evaluate the conduct of other detainees‘ CSRTs. The court also denied as unnecessary the petitioners‘ motion to appoint a special master. The court also promised to enter a protective order to implement guidelines for handling classified and sensitive information and for government monitoring of attorney client written communications (―legal mail‖). Again stressing its mandate under the DTA to determine whether a preponderance of the evidence supports a CSRT‘s status determination, the court found that counsel for the detainees, to aid in their capacity to assist the court, should be presumed to have a ―need to know‖ all government information concerning their clients except for highly sensitive information, in which case the government could present the evidence to the court ex parte. The court rejected the government‘s proposal that would have allowed the government, rather than the court, to determine what unclassified information would be required to be kept under seal. With respect to legal mail, the court agreed to the government‘s proposal to have mail from attorneys to detainees reviewed by a ―privilege

160

Bismullah v. Gates, 501 F.3d 178 (Bismullah I), reh‟g denied 503 F.3d 137(D.C. Cir. 2007) (Bismullah II).

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team,‖ composed of Department of Defense personnel not involved in the litigation, to redact information not pertinent to matters within the court‘s limited scope of review. The government asked the panel to reconsider the ruling based on its belief that the order would require the government to undertake an overly burdensome search of all relevant federal agencies in order to create a new record for each detainee that would be entirely different from the record reviewed by the CSRT for that case. The court denied the request for rehearing, explaining its view that its previous order would not require a search for information that is not ―reasonably available‖ (Bismullah II).161 The court also suggested that the government might instead convene new CSRTs to reconfirm the detainees‘ status, this time ensuring that the relevant documents are retained for the purpose of review under the DTA. The government also objected to the requirement that it turn over classified information to the petitioners‘ counsel on the basis of the risk to intelligence sources and methods as well as the burden of conducting the necessary reviews to determine which information must be turned over. The court rejected the argument, pointing out that DOD regulations declare classified information to be not reasonably available where the originating agency declines to authorize its use in the CSRT process. In light of this fact, the court suggested, the burden of reviewing the information should not be as great as the government had argued. The government then asked for an en banc hearing, but the D.C. Circuit, evenly divided, declined.162 The government then sought expedited review at the Supreme Court, urging the Court to decide the cases concurrently with the Boumediene case, but the Court took no action on the request.163 Instead, it granted certiorari and vacated the decision, remanding for reconsideration in light of its decision in Boumediene.164 On August 22, 2008, the D.C. Circuit reinstated without explanation its decisions in Bismullah I and Bismullah II, presumably because it did not find the Boumediene ruling to conflict with its decisions in these cases.165 The government subsequently petitioned for a rehearing of the case, arguing that the Supreme Court‘s ruling in Boumediene effectively nullified the system of Circuit Court review established by the DTA, as Congress had not intended for detainees to have two 161

Bismullah II, 503 F. 3d 137 (D.C. Cir. 2007). Bismullah v. Gates, 514 F.3d 1291 (D.C. Cir. 2008). 163 Gates v. Bismullah (U.S., filed February 14, 2008) (07-1054). 164 Gates v. Bismullah, 128 S.Ct. 2960 (2008). The D.C. Circuit‘s determination of how to carry out its mandate under the DTA was a matter of interest to the Supreme Court as it was considering Boumediene, and may have had some bearing on the ultimate determination in that case that the DTA procedures are not an adequate substitute for the writ of habeas corpus. Accordingly, it may be worthwhile to review some of the shortcomings described by the dissent, the only opinion of the panel that addressed the adequacy of the DTA procedures as a substitute for habeas corpus. Judge Janice Rogers Brown, concurring separately in Bismullah I, set forth a number of issues she felt call into question the fairness of the CSRT proceedings. For example, she noted that the detainee bears the burden of proving that he is not an ―enemy combatant‖—a term she described as elastic in nature, even though the detainee may not be aware of the information he is expected to rebut, all without the assistance of counsel. See Bismullah I, 501 F.3d at 193 (Rogers, J. Concurring). Further, the record presented to the CSRT is limited by the Executive, and the detainee‘s only recourse for seeking further evidence is through the DTA review process. If the detainee is successful in obtaining new evidence, his remedy appears to be a new CSRT. Id. Finally, she noted evidence that the CSRTs do not necessarily follow their own regulations regarding the collection and presentation of evidence. Id. (citing differences between written procedures and those described by Rear Admiral James M. McGarrah in the Boumediene case). 165 Bismullah v. Gates, Case No. 06-1197, Order (D.C. Cir. August 22, 2008) (per curium), available at http://www.scotusblog.com/wp/wp-content/uploads/2008/08/bismullah-order-8-22-08.pdf. 162

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judicial forums in which to challenge their detention.166 The D.C. Circuit granted the government‘s motion for rehearing, and on January 9, 2009, a three-judge panel held that, in light of the Supreme Court‘s ruling in Boumediene restoring detainees‘ ability to seek habeas review of the legality of their detention, the appellate court no longer had jurisdiction over petitions for review filed pursuant to the DTA. Writing for the panel, Judge Douglas H. Ginsburg described both the text of the DTA and the subsequent jurisdiction-stripping measures of the MCA left no doubt that Congress understood review under DTA to be a substitute for and not a supplement to habeas corpus and hence the exclusive means by which a detainee could contest the legality of his detention in a court....‖167 In the aftermath of Boumediene, Judge Ginsburg wrote, the DTA ―can no longer function in a manner consistent with the intent of Congress.‖168 Accordingly, the Circuit Court panel held that the DTA may no longer serve as an avenue of judicial review of detainees‘ claims, as Congress had intended this review process to be available to detainees only in the absence of the availability of habeas review. It remains to be seen whether the panel‘s decision will be subject to further consideration, either by the Circuit Court sitting en banc or via appeal to the Supreme Court.

Parhat v. Gates In October 2007, while the government‘s petition to the Supreme Court for certiorari in the Bismullah case was pending, the government produced to the counsel of Husaifa Parhat, one of the parties to the Bismullah case, a record (including both classified and unclassified material) of what was actually presented to Parhat‘s CSRT. Parhat subsequently filed a separate motion to the D.C. Circuit requesting review of the CSRT‘s determination that he was an enemy combatant. In June 2008, a three-judge panel for the D.C. Circuit ruled in the case of Parhat v. Gates that petitioner had been improperly deemed an ―enemy combatant‖ by a CSRT, the first ruling of its kind by a federal court. Because the court‘s opinion contained classified information, only a redacted version has been released.169 Parhat, an ethnic Chinese Uighur captured in Pakistan in December 2001, was found to be an ―enemy combatant‖ by the CSRT on account of his affiliation with a Uighur independence group known as the East Turkistan Islamic Movement (ETIM), which was purportedly ―associated‖ with Al Qaeda and the Taliban and engaged in hostilities against the United States and its coalition partners. The basis for Parhat‘s alleged ―affiliation‖ with the ETIM was that an ETIM leader ran a camp in Afghanistan where Parhat had lived and received military training. For his part, Parhat denied membership in the ETIM or engagement in hostilities against the United States, and claimed he traveled to Afghanistan solely to join the resistance against China, which was not alleged to have been a coalition partner of the United States. The Circuit Court agreed with Parhat that the record before the CSRT did not support the finding that he was an ―enemy combatant,‖ as that term had been defined by the DOD, and 166

Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009). In a previous case, the government had argued for abeyance of a detainee‘s petition for review of his detention under DTA procedures pending conclusion of habeas proceedings. The D.C. Circuit granted the government‘s motion for abeyance, and raised the possibility in dicta that the Boumediene had foreclosed direct Circuit Court review under the DTA. Basardh v. Gates, 545 F.3d 1068 (D.C. Cir. 2008). 167 Bismullah, 551 F.3d at 1075. 168 Id. 169 Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008).

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accordingly the CSRT‘s determination was not supported by a ―preponderance of the evidence‖ and ―consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals,‖ as required by the DTA.170 The DOD defined an ―enemy combatant‖ as

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an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities 171 in aid of enemy armed forces.

Both parties agreed that for a detainee who is not a member of the Taliban or Al Qaeda to be deemed an enemy combatant under this definition, the government must demonstrate by a preponderance of the evidence that (1) the detainee was part of or supporting ―forces‖; (2) those forces are associated with Al Qaeda or the Taliban; and (3) the forces are engaged in hostilities against the United States or its coalition partners.172 The Circuit Court found that the evidence presented by the government to support the second and third elements was insufficient to support the CSRT‘s determination that Parhat was an enemy combatant. Most significantly, the court found that the principal evidence presented by the government regarding these elements—four government intelligence documents describing ETIM activities and the group‘s relationship with Al Qaeda and the Taliban—did not ―provide any of the underlying reporting upon which the documents‘ bottom-line assertions are founded, nor any assessment of the reliability of that reporting.‖173 As a result, the Circuit Court found that neither the CSRT nor the reviewing court itself were capable of assessing the reliability of the assertions made by the documents. Accordingly ―those bare assertions cannot sustain the determination that Parhat is an enemy combatant,‖174 and the CSRT‘s designation was therefore improper. The Circuit Court stressed that it was not suggesting that hearsay evidence could never reliably be used to determine whether a person was an enemy combatant, or that the government must always submit the basis for its factual assertions to enable an assessment of its claims. However, evidence ―must be presented in a form, or with sufficient additional information, that permits the [CSRT] and court to assess its reliability.‖175 Having found that the evidence considered by the CSRT was insufficient to support the designation of Parhat as an enemy combatant, the Circuit Court next turned to the question of remedy. Although Parhat urged the court to order his release or transfer to a country other than China, the court declined to grant such relief, postulating that the government might wish to hold another CSRT in which it could present additional evidence to support Parhat‘s designation as an enemy combatant. While acknowledging that the DTA did not expressly 170

Although Parhat argued that the DOD‘s regulatory definition of ―enemy combatant‖ exceeded the scope authorized by the 2001 AUMF, the Circuit Court declined to reach this issue, finding that the government provided insufficient evidence to demonstrate that Parhat met the DOD‘s own regulatory definition. 171 Parhat, 532 F.3d at 838, quoting Dept. of Def. Order Establishing Combatant Status Review Tribunal (July 7, 2004), at 1. 172 Id. 173 Id. at 846-847. 174 Id. at 847. 175 Id. at 849.

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grant the court release authority over detainees, the court stated that there was nonetheless ―a strong argument ... [that release authority] is implicit in our authority to determine whether the government has sustained its burden of proving that a detainee is an enemy combatant,‖176 and indicated that it would not ―countenance ‗endless do-overs‘‖ in the CSRT process. The Circuit Court also noted that following the Supreme Court‘s ruling in Boumediene, Parhat could pursue immediate habeas relief in federal district court, where he would ―be able to make use of the determinations we have made today regarding the decision of his CSRT, and ... raise issues that we did not reach‖ before a court which unquestionably would have the power to order his release.177 The continuing viability of the Circuit Court‘s ruling in Parhat is unclear given the Court‘s subsequent ruling in Bismullah that the DTA review process has been nullified. However, the Circuit Court panel in Bismullah implied that, despite its determination that the DTA review process was no longer available to detainees, the Circuit Court‘s ruling in Parhat remains in force.178 The government has declined to reconvene CSRTs for Parhat and 16 other Uighurs being detained at Guantanamo, and no longer considers them enemy combatants. However, the DOD continues to maintain custody over them pending their transfer to a third country. Thus far, the government has been unable to effectuate their transfer to a country where they would not face a substantial risk of torture or persecution. The Uighurs filed habeas petitions with the U.S. District Court for D.C., and requested that they be released into the United States pending the court‘s final judgment on their habeas petitions. In October 2008, District Court Judge Ricardo M. Urbina found that the government had no authority to detain the petitioners and ordered their release into the United States, 179 at least until they may be transferred to a third country. The government quickly filed an emergency motion with the D.C. Circuit to temporarily stay Judge Urbina‘s ruling pending the Circuit Court‘s disposition of a government motion for a stay pending appeal. The emergency motion was granted by a three-judge panel of the Circuit Court.180 Later, the panel granted the government‘s motion for expedited review of the district court‘s order and, in a 2-1 decision, a stay of the Uighurs‘ transfer pending review of the district court‘s ruling.181 In February 2009, the Circuit panel reversed the district court, finding that the constitutional writ of habeas did not entitle petitioners to the ―extraordinary remedy‖ of being released into the United States in light of long-standing jurisprudence recognizing the ―exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States.‖182 The petitioners have requested Supreme Court review of the decision.

176

Parhat, 532 F.3d at 850 . Id. at 851. 178 Bismullah, 551 F.3d at 1075, n, 2. 179 In re Guantanamo Bay Detainee Litigation, 581 F.Supp.2d 33 (D.D.C. 2008). 180 Kiyemba v. Bush, No. 08-5424, Order (D.C. Cir., October 8, 2008) (per curiam). 181 Kiyemba v. Bush, No. 08-5424, 2008 WL 4898963, Order (D.C. Cir., October 20, 2008) (per curiam). 182 Kiyemba v. Obama, 555 F.3d 1022, 1025, 1028 (D.C. Cir. 2009). 177

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BOUMEDIENE V. BUSH183 The petitioners in Boumediene were aliens detained at Guantanamo who sought habeas review of their continued detention. Rather than pursuing an appeal of their designation as enemy combatants by CSRTs using the DTA appeals process, the petitioners sought to have the district court decisions denying habeas review reversed on the basis that the MCA‘s ―court-stripping‖184 provision was unconstitutional.185 On appeal, the D.C. Circuit affirmed, holding that the MCA stripped it and all other federal courts of jurisdiction to consider petitioners‘ habeas applications. Relying upon its earlier opinion in Al Odah v. United States186 and the 1950 Supreme Court case Johnson v. Eisentrager,187 in which the Supreme Court found that the constitutional writ of habeas was not available to enemy aliens imprisoned for war crimes in post-WWII Germany, the D.C. Circuit held that the MCA‘s elimination of habeas jurisdiction did not operate as an unconstitutional suspension of the writ, because aliens held by the United States in foreign territory do not have a constitutional right to habeas.188 Consequently, the court did not examine whether the DTA provides an adequate substitution for habeas review. The Supreme Court initially denied the petitioners‘ request for review,189 with three Justices dissenting to the denial and two Justices explaining the basis for their support.190 In June 2007, however, the Court reversed its denial and granted certiorari to consider the consolidated cases of Boumediene and Al Odah. In a 5-4 opinion authored by Justice Kennedy, the Court reversed the D.C. Circuit and held that petitioners had a constitutional

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183

For further discussion, see CRS Report RL34536, Boumediene v. Bush: Guantanamo Detainees‟ Right to Habeas Corpus, by Michael John Garcia. 184 The practice of divesting courts of jurisdiction over particular issues is sometimes referred to as ―court-stripping.‖ 185 In re Guantanamo Cases, 355 F. Supp. 2d 443 (D.D.C. 2005) and Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005), consolidated, vacated and dismissed sub nom. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007). 186 Al Odah v. United States, 321 F.3d 1134 (D.C. Cir 2003), rev‟d sub nom Rasul v. Bush, 542 U.S. 466 (2004). 187 339 U.S. 763 (1950). 188 476 F.3d 981 (D.C. Cir. 2007). Judge Randolph, joined by Judge Sentelle, found that the measure does not constitute a suspension of the Writ within the meaning of the Constitution because the majority was ―aware of no case prior to 1789 going the detainees‘ way,‖ and were thus convinced that ―the writ in 1789 would not have been available to aliens held at an overseas military base leased from a foreign government.‖ Judge Rogers, in dissent, would have given greater deference to the Supreme Court‘s Rasul opinion, in which it drew a distinction between the situation faced by the Guantanamo detainees and the post-WWII convicts, 542 U.S. 466, 475 (2004), and in which it found the naval base to be within the historical scope of the Writ. Boumediene, 476 F.3d at 1002 (Rogers, J., dissenting))(citing Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003)). 189 Boumediene v. Bush, 127 S.Ct. 1478 (2007). 190 Justice Stevens, joined by Justice Kennedy, wrote a statement explaining their view that, ―despite the obvious importance of the issues raised,‖ the petitioners should first exhaust remedies available under the DTA unless the petitoners can show that the government is causing delay or some other ongoing injury that would make those remedies inadequate. Id. at 1478. Justice Breyer, joined by Justices Souter and Ginsburg, would have granted certiorari to provide immediate attention to the issues. The dissenters viewed it as unlikely that further treatment by the lower courts might elucidate the issues, given that the MCA limits jurisdiction to the Court of Appeals for the D.C. Circuit, which had already indicated that Guantanamo detainees have no constitutional rights. Justices Breyer and Souter would have granted expedited consideration.

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right to habeas that was withdrawn by the MCA in violation of the Constitution‘s Suspension Clause.191

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Constitutional Right to Habeas The petitioners in Boumediene argued that they possess a constitutional right to habeas, and that the MCA deprived them of this right in contravention of the Suspension Clause, which prohibits the suspension of the writ of habeas except ―when in Cases of Rebellion or Invasion the public Safety may require it.‖ The MCA did not expressly purport to be a formal suspension of the writ of habeas, and the government did not make such a claim to the Court. Instead, the government argued that aliens designated as enemy combatants and detained outside the de jure territory of the United States have no constitutional rights, including the constitutional privilege to habeas, and that therefore stripping the courts of jurisdiction to hear petitioners‘ habeas claims did not violate the Suspension Clause. The Court began its analysis by surveying the history and origins of the writ of habeas corpus, emphasizing the importance placed on the writ for the Framers, while also characterizing its prior jurisprudence as having been ―careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ.‖192 The Court characterized the Suspension Clause as not only a ―vital instrument‖ for protecting individual liberty, but also a means to ensure that the judiciary branch would have, except in cases of formal suspension, ―a time-tested device, the writ, to maintain the delicate balance of governance‖ between the branches and prevent ―cyclical abuses‖ of the writ by the executive and legislative branches.193 The Court stated that the separation-of-powers doctrine and the history shaping the design of the Suspension Clause informed its interpretation of the reach and purpose of the Clause and the constitutional writ of habeas. The Court found the historical record to be inconclusive for resolving whether the Framers would have understood the constitutional writ of habeas as extending to suspected enemy aliens held in foreign territory over which the United States exercised plenary, but not de jure control. Nonetheless, the Court interpreted the Suspension Clause as having full effect at Guantanamo. While the Court did not question the government‘s position that Cuba maintains legal sovereignty over Guantanamo under the terms of the 1903 lease giving the U.S. plenary control over the territory, it disagreed with the government‘s position that ―at least when applied to non-citizens, the Constitution necessarily stops where de jure sovereignty ends.‖194 Instead, the Court characterized its prior jurisprudence as recognizing that the Constitution‘s extraterritorial application turns on ―objective factors and practical concerns.‖195 Here, the Court emphasized the functional approach taken in the Insular Cases, where it had assessed the availability of constitutional rights in incorporated and 191

U.S. CONST. Art. 1, § 9, cl. 2. Boumediene, 128 S.Ct. 2229 at 2248 (citing INS v. St. Cyr, 533 U. S. 289, 300—301(2001)). 193 Id. at 2247. 194 Id. at 2253. 195 Id. at 2258. 192

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unincorporated territories under the control of United States.196 Although the government argued that the Court‘s subsequent decision in Eisentrager stood for the proposition that the constitutional writ of habeas does not extend to enemy aliens captured and detained abroad, the Court found this reading to be overly constrained. According to the Court, interpreting the Eisentrager ruling in this formalistic manner would be inconsistent with the functional approach taken by the Court in other cases concerning the Constitution‘s extraterritorial application,197 and would disregard the practical considerations that informed the Eisentrager Court‘s decision that the petitioners were precluded from seeking habeas. Based on the language found in the Eisentrager decision and other cases concerning the extraterritorial application of the Constitution, the Court deemed at least three factors to be relevant in assessing the extraterritorial scope of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the status determination process; (2) the nature of the site where the person is seized and detained; and (3) practical obstacles inherent in resolving the prisoner‘s entitlement to the writ. Applying this framework, the Court characterized petitioners‘ circumstances in the instant case as being significantly different from those of the detainees at issue in Eisentrager. Among other things, the Court noted that unlike the detainees in Eisentrager, the petitioners denied that they were enemy combatants, and the government‘s control of the post-WWII, occupied German territory in which the Eisentrager detainees were held was not nearly as significant nor secure as its control over the territory where the petitioners are located. The Court also found that the procedural protections afforded to Guantanamo detainees in CSRT hearings are ―far more limited [than those afforded to the Eisentrager detainees tried by military commission], and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.‖198 While acknowledging that it had never before held that noncitizens detained in another country‘s territory have any rights under the U.S. Constitution, the Court concluded that the case before it ―lack[ed] any precise historical parallel.‖199 In particular, the Court noted that the Guantanamo detainees have been held for the duration of a conflict that is already one of the longest in U.S. history, in territory that, while not technically part of the United States, is subject to complete U.S. control. Based on these factors, the Court concluded that the Suspension Clause has full effect at Guantanamo.

196

See De Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United States, 182 U. S. 222 (1901); Armstrong v. United States, 182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244; Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v. United States, 195 U. S. 138 (1904). 197 Boumediene, 128 S.Ct. 2229 at 2255-56, 2258 (discussing plurality opinion in Reid v. Covert, 354 U. S. 1 (1957)). In his concurring opinion in Reid, Justice Harlan argued that whether a constitutional provision has extraterritorial effect depends upon the ―particular circumstances, the practical necessities, and the possible alternatives which Congress had before it‖ and, in particular, whether judicial enforcement of the provision would be ―impracticable and anomalous.‖ Reid, 354 U.S. at 74—75 (Harlan, J., concurring in result). 198 Id. at 2260. 199 Id. at 2262.

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Adequacy of Habeas Corpus Substitute Having decided that petitioners possessed a constitutional privilege to habeas corpus, the Court next assessed whether the court-stripping measure of MCA § 7 was impermissible under the Suspension Clause. Because the MCA did not purport to be a formal suspension of the writ, the question before the Court was whether Congress had provided an adequate substitute for habeas corpus. The government argued that the MCA complied with the Suspension Clause because it applied the DTA‘s review process to petitioners, which the government claimed was a constitutionally adequate habeas substitute. Though the Court declined to ―offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus,‖ it nonetheless deemed the habeas privilege, at minimum, as entitling a prisoner ―to a meaningful opportunity to demonstrate that he is being held pursuant to ‗the erroneous application or interpretation‘ of relevant law,‖ and empowering a court ―to order the conditional release of an individual unlawfully detained,‖ though release need not be the exclusive remedy or appropriate in every instance where the writ is granted.200 Additionally, the necessary scope of habeas review may be broader, depending upon ―the rigor of any earlier proceedings.‖201 The Court noted that petitioners identified a myriad of alleged deficiencies in the CSRT process which limited a detainee‘s ability to present evidence rebutting the government‘s claim that he is an enemy combatant. Among other things, cited deficiencies include constraints upon the detainee‘s ability to find and present evidence at the CSRT stage to challenge the government‘s case; the failure to provide a detainee with assistance of counsel; limiting the detainee‘s access to government records other than those that are unclassified, potentially resulting in a detainee being unaware of critical allegations relied upon by the government to order his detention; and the fact that the detainee‘s ability to confront witnesses may be ―more theoretical than real,‖202 given the minimal limitations placed upon the admission of hearsay evidence. While the Court did not determine whether the CSRTs, as presently constituted, satisfy due process standards, it agreed with petitioners that there was ―considerable risk of error in the tribunal‘s findings of fact.‖203 ―[G]iven that the consequence of error may be detention for the duration of hostilities that may last a generation or more, this is a risk too serious to ignore.‖204 The Court held that for either the writ of habeas or an adequate substitute to function as an effective remedy for petitioners, a court conducting a collateral proceeding must have the ability to (1) correct errors in the CSRT process; (2) assess the sufficiency of the evidence against the detainee; and (3) admit and consider relevant exculpatory evidence that was not introduced in the prior proceeding. The Court held that the DTA review process is a facially inadequate substitute for habeas review. It listed a number of potential constitutional infirmities in the review process, including the absence of provisions (1) empowering the D.C. Circuit to order release from detention; (2) permitting petitioners to challenge the President‘s authority to detain them 200

Boumediene, 128 S. Ct. 2229 at 2266-67. Id. at 2268. 202 Id. at 2269. 203 Id. at 2270. 204 Id. 201

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indefinitely; (3) enabling the appellate court to review or correct the CSRT‘s findings of fact; and (4) permitting the detainee to present exculpatory evidence discovered after the conclusion of CSRT proceedings. As a result, the Court deemed MCA § 7‘s application of the DTA review process to petitioners as failing to provide an adequate substitute for habeas, therefore effecting an unconstitutional suspension of the writ. In light of this conclusion, the Court held that petitioners could immediately pursue habeas review in federal district court, without first obtaining review of their CSRT designations from the D.C. Circuit as would otherwise be required under the DTA review process. While prior jurisprudence recognized that prisoners are generally required to exhaust alternative remedies before seeking federal habeas relief, the Court found that petitioners in the instant case were entitled to a prompt habeas hearing, given the length of their detention. The Court stressed, however, that except in cases of undue delay, federal courts should generally refrain from considering habeas petitions of detainees being held as enemy combatants until after the CSRT had an opportunity to review their status. Acknowledging that the government possesses a ―legitimate interest in protecting sources and methods of intelligence gathering,‖ the Court announced that it expected courts reviewing Guantanamo detainees habeas claims to use ―discretion to accommodate this interest to the greatest extent possible,‖ so as to avoid ―widespread dissemination of classified information.‖205

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Implications of Boumediene As a result of the Boumediene decision, detainees currently held at Guantanamo may petition a federal district court for habeas review of status determinations made by a CSRT. However, the full consequences of the Boumediene decision are likely to be significantly broader. While the petitioners in Boumediene sought habeas review of their designation as enemy combatants, the Court‘s ruling that the constitutional writ of habeas extends to Guantanamo suggests that detainees may also seek judicial review of claims concerning unlawful conditions of treatment or confinement or to protest a planned transfer to the custody of another country.206 The conduct of trials before military commissions at Guantanamo may also be affected by Boumediene, as enemy combatants may now potentially raise constitutional arguments against their trial and conviction. Aliens convicted of war crimes before military commissions may also potentially seek habeas review of their designation as an enemy combatant by the CSRT, a designation that served as a legal requisite for their subsequent prosecution before a military commission. Although the Boumediene Court held that DTA review procedures were an inadequate substitute for habeas, it made ―no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards,‖ and emphasized that ―both the DTA and the CSRT process remain intact.‖207 Whether these procedures violate due process standards, 205

Id. at 2275. See Boumediene, 128 S. Ct. 2229 at 2274 (―In view of our holding we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement.‖). 207 Id. at 2275. Whether the MCA continues to preclude judicial consideration of such claims is a subject that has not been definitely resolved. In the aftermath of Boumediene, district court judges have continued to give effect to MCA § 7(a)(2), which bars judicial review of claims relating to 206

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facially or as applied in a given case, and whether a particular detainee is being unlawfully held, are issues that will be addressed by the District Court when reviewing the habeas claims of Guantanamo detainees. Over 200 habeas petitions have been filed on behalf of Guantanamo detainees in the U.S. District Court for the District of Columbia. In the aftermath of the Boumediene ruling, the District Court adopted a resolution for the coordination and management of Guantanamo cases. The resolution calls for all current and future Guantanamo cases to be transferred by the judge to whom they have been assigned to Senior Judge Thomas F. Hogan, who has been designated to coordinate and manage all Guantanamo cases so that they may be ―addressed as expeditiously as possible as required by the Supreme Court in Boumediene v. Bush.... ‖208 Judge Hogan is responsible for identifying and ruling on procedural issues common to the cases. The transferring judge will retain the case for all other purposes, though Judge Hogan is to confer with those judges whose cases raise common substantive issues, and he may address those issues with the consent of the transferring judge. District Court Judges Richard J. Leon and Emmet G. Sullivan have declined to transfer their cases for coordination, and it is possible that the three judges may reach differing opinions regarding issues common to their respective cases. Litigation concerning detainees‘ habeas claims remains ongoing. Final rulings have been reached in a few cases. In some instances, detainees have been ordered released,209 while in others, detention has been deemed lawful.210

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EXECUTIVE ORDER TO CLOSE GUANTANAMO AND HALT MILITARY COMMISSION PROCEEDINGS On January 22, 2009, President Barack Obama issued an Executive Order requiring that the Guantanamo detention facility be closed as soon as practicable, and no later than a year from the date of the Order.211 Any persons who continue to be held at Guantanamo at the time of closure are to be either transferred to a third country for continued detention or release, or transferred to another U.S. detention facility. The Order further requires specified officials to review all Guantanamo detentions to assess whether the detainee should continue to be held by the United States, transferred or released to a third country, or be prosecuted by the United conditions of detainees‘ confinement. See Khadr v. Bush, 587 F.Supp.2d 225, 235 (D.D.C.,2008) (―the Supreme Court appears to have left ... [the MCA‘s bar on judicial review of conditions of detention] undisturbed‖); In re Guantanamo Bay Detainee Litigation, 577 F.Supp.2d 312, 314 (D.D.C.2008) (Hogan, J.) (―Cognizant of the long-standing rule of severability, this Court, therefore, holds that MCA § 7(a)(2) remains valid and strips it of jurisdiction to hear a detainee‘s claims that ‗relat[e] to any aspect of the detention, transfer, treatment, trial, or conditions of confinement ... ‘‖). See also In re Guantanamo Bay Detainee Litigation, 570 F.Supp.2d 13 (D.D.C.2008) (Urbina, J.) (holding that MCA § 7(a)(2) was not invalidated by Boumediene, but declining to decide whether constitutional writ of habeas permits challenges to conditions of confinement). 208 U.S. Dist. Court for the District of Columbia, Resolution of the Executive Session, July 1, 2008, available at http://www.dcd.uscourts.gov/public 209 See, e.g., el Gharani v. Bush, 593 F.Supp.2d 144 (D.D.C. 2009); Boumediene v. Bush, 579 F.Supp.2d 191(D.D.C. 2008) (granting five detainees‘ habeas petitions) 210 See, e.g., Sliti v. Bush, 592 F.Supp.2d 46 (D.D.C. 2008); Boumediene, 579 F. Supp. 2d, at 198 (denying one habeas petition and granting five others). 211 Executive Order 13492, ―Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities,‖ 74 Federal Register 4897, January 22, 2009.

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States for criminal offenses.212 Reviewing authorities are required to identify and consider the legal, logistical, and security issues that would arise in the event that some detainees are transferred to the United States. The Order also requires reviewing authorities to assess the feasibility of prosecuting detainees in an Article III court. During this review period, the Secretary of Defense is required to take steps to ensure that all proceedings before military commissions and the United States Court of Military Commission Review are halted. The full implications of this Order upon ongoing litigation involving persons currently detained at Guantanamo remain to be seen. However, the closure of the Guantanamo detention facility would raise a number of legal issues with respect to the individuals presently interned there, particularly if those detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different than those available to persons held at Guantanamo or elsewhere. This may have implications for the continued detention or prosecution of persons transferred to the United States. Although the scope of constitutional protections owed to Guantanamo detainees remains a matter of legal dispute, it is clear that the procedural and substantive due process protections of the Constitution apply to all persons within the United States, regardless of their citizenship.213 Accordingly, detainees transferred to the United States might be able to more successfully pursue legal challenges against aspects of their detention that allegedly infringe upon constitutional protections owed to them.214

REDEFINING U.S. DETENTION AUTHORITY

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In March 2009, the Obama Administration announced a new definitional standard for the government‘s authority to detain terrorist suspects, which does not use the phrase ―enemy combatant‖ to refer to persons who may be properly detained.215 Under this new definition, the Administration claims that: The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, 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 a belligerent act, or has directly supported 216 hostilities, in aid of such enemy armed forces. 212

Id. at § 4. The Order specifies that the review shall be conducted by the Attorney General (who shall also coordinate the review process), the Secretary of Defense, the Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, the Chairman of the Joint Chiefs of Staff, as well as other officers or full- or part- time employees of the U.S. government (as determined by the Attorney General, with the concurrence of the relevant department head) with intelligence, counterterrorism, military, or legal expertise. 213 Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (―the Due Process Clause applies to all ‗persons‘ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent‖). 214 For further discussion and analysis, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia et al. 215 DOJ Press Release, supra footnote 20; Detention Authority Memorandum, supra footnote 20. 216 Detention Authority Memorandum, supra footnote 20, at *2.

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This definitional standard is largely similar to that used by the Bush Administration to detain terrorist suspects as ―enemy combatants.‖ Like the previous administration, the Obama Administration claims the power to militarily detain members of the Taliban or Al Qaeda, regardless whether such persons were captured away from the battlefield in Afghanistan.217 However, there are a few differences in the standard used by the Bush and Obama Administrations. Most notably, whereas the Bush Administration claimed the authority to detain persons who supported Al Qaeda, the Taliban, or associated forces, the standard announced by the Obama Administration expressly requires such support to be ―substantial.‖ While the Obama Administration claims that activities constituting ―substantial support‖ will be developed in application to individual cases, it has stated that it would not cover ―unwitting or insignificant‖ support.218 The Obama Administration has stated that this definitional standard is based upon the authority provided by the AUMF, as informed by the laws of war. The Obama Administration has also claimed that this standard does ―not rely on the President‘s authority as Commanderin-Chief independent of Congress‘s specific authorization.‖219 The Bush Administration had previously argued that, separate from the authority provided by the AUMF, the President has the independent authority as Commander-in-Chief to order the detention of terrorist suspects. While the Obama Administration has not expressly rejected this claim, it appears that the Administration will not rely upon the notion of inherent constitutional authority to serve as a legal basis for the detention of terrorist suspects. The full implications of this change in language and intent remain to be seen. One issue that is likely to be subject to debate is the Executive‘s authority under the AUMF and traditional law-ofwar principles to detain members of Al Qaeda or the Taliban who did not directly participate in battlefield hostilities. The nature of activities constituting ―substantial support‖ for the groups may also merit significant judicial attention. It should also be noted that the new definitional standard refers only to detainees held by the United States at Guantanamo, and not those persons detained at other facilities (e.g., the Bagram Air Base in Afghanistan). It is not clear whether the Administration will rely upon a different standard to justify the detention of terrorist suspects at locations other than Guantanamo.

CONSTITUTIONAL CONSIDERATIONS AND OPTIONS FOR CONGRESS The Supreme Court decision in Boumediene holding that the DTA violates the Constitution‘s Suspension Clause (article I, § 9, cl. 2) leaves open a number of constitutional questions regarding the scope of the Writ of Habeas Corpus and what options are open to Congress to make rules for the detention of suspected terrorists. The following sections provide a brief background of the writ of habeas corpus in the United States, outline some proposals for responding to the Boumediene holding, and discuss relevant constitutional considerations.

217

Detention Authority Memorandum, supra footnote 20, at *7-8. Id. at *2. 219 DOJ Press Release, supra footnote 20. 218

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The Writ of Habeas Corpus (ad subjiciendum), also known as the Great Writ, has its origin in Fourteenth Century England.220 It provides the means for those detained by the government to ask a court to order their warden to explain the legal authority for their detention. In the early days of the Republic, its primary use was to challenge executive detention without trial or bail, or pursuant to a ruling by a court without jurisdiction, but the writ has expanded over the years to include a variety of collateral challenges to convictions or sentences based on alleged violations of fundamental constitutional rights.221 The habeas statute provides jurisdiction to hear petitions by persons claiming that they are held ―in custody in violation of the Constitution or laws or treaties of the United States.‖222 A court reviewing a petition for habeas corpus does not determine the guilt or innocence of the petitioner; rather, it tests the legality of the detention and the custodian‘s authority to detain. If the detention is not supported by law, the detainee is to be released.223 Minor irregularities in trial procedures that do not amount to violations of fundamental constitutional rights are generally to be addressed on direct appeal.224 Article I, § 9, cl. 2, of the Constitution provides: ―The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.‖ Given the emphasis the Rasul Court had placed on the distinction between the statutory and constitutional entitlement to habeas corpus, it might have seemed reasonable to suppose that Congress retained the power to revoke by statute what it had earlier granted without offending either the Court or the Constitution, without regard to establishing a public safety justification. However, as the Boumediene case demonstrates, the special status accorded the Writ by the Suspension Clause complicates matters. The relevance of the distinction between a ―statutory‖ and a ―constitutional‖ privilege of habeas corpus is not entirely clear. The federal courts‘ power to review petitions under habeas corpus has historically relied on statute,225 but it has been explained that the Constitution obligates Congress to provide ―efficient means by which [the Writ] should receive life and activity.‖226 While the Court has stated that ―at the absolute minimum, the Suspension Clause protects the writ ‗as it existed in 1789,‘‖227 it has also presumed that ―the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789.‖228 The Boumediene Court declined to adopt a date of reference by which the constitutional scope of the writ is to be judged.229Accordingly, it remains unclear whether statutory enhancements of habeas review can ever be rolled back without implicating the 220

For a general background and description of related writs, see 39 AM. JUR. 2d. Habeas Corpus § 1 (1999). 221 See generally S. DOC. NO. 108-17 at 848 et seq. 222 Rasul v. Bush, 542 U.S. 466 (2004). 223 Ex parte Watkins, 28 U.S. (3 Pet.) 193, 201 (1830) (Marshall, C.J.) (―The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause.‖). 224 39 AM. JUR. 2d. Habeas Corpus § 27 (1999). 225 Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807). 226 Id. at 94. 227 INS v. St. Cyr, 533 U.S. 289, 301 (U.S. 2001). 228 Felker v. Tupin, 518 U.S. 663 (1996)(citing Swain, 430 U.S. 372). 229 See Boumediene, 128 S.Ct. at 2248 (― The Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ.‖).

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Suspension Clause.230 The constitutionally mandated scope of the writ may turn on the same kinds of ―objective factors and practical considerations‖ that the Court stated would determine the territorial scope of the writ. Under Boumediene, it appears that Congress‘s ability to revoke altogether the courts‘ jurisdiction over habeas petitions by certain classes of persons is constrained by the Constitution, but Congress has the power to impose some procedural regulations that may limit how courts consider such cases.231 Congress also retains the option of withdrawing habeas jurisdiction if it provides an effective and adequate alternative means of pursuing relief.232 The Court‘s opinion in Boumediene did not fully delineate the lower bounds of what the Court might consider as necessary either to preserve the constitutional scope of the writ or to provide an adequate substitute, but indicated that the prisoners are entitled to ―a meaningful opportunity to demonstrate that [they are] being held pursuant to the erroneous application or interpretation of relevant law.‖233 A more direct option to affect the outcome of habeas cases brought by detainees may involve enacting a clear statutory definition of who may be detained and the purpose of the detention, along with an appropriate procedure designed to distinguish those who meet the definition from those who do not. Such an approach could potentially increase certainty with respect to courts‘ decisions regarding whether the detention of particular alleged enemy combatants comports with statutes and treaties, although constitutionally based claims may remain less predictable. Congress could formally suspend the writ with respect to the detainees, although it is unclear whether Congress‘s views regarding the requirements of public safety are justiciable.234 If they are, then a reviewing court‘s assessment of the constitutionality of habeas-suspending legislation would likely turn on whether Al Qaeda‘s terrorist attacks upon the United States qualify as a ―rebellion or invasion,‖ and whether the court finds that ―the public safety‖ requires the suspension of the writ. Congress might be able to impose some limitations upon judicial review of CSRT determinations if it strengthened the procedural protections afforded to detainees in CSRT status hearings. Legislation addressing some or all of the potential procedural inadequacies in the CSRT process identified in Boumediene might permit judicial review of CSRT determinations to be further streamlined. In 2008, Attorney General Michael Mukasey recommended that Congress enact new legislation to eliminate the DTA appeals process and make habeas corpus the sole avenue for detainees to challenge their detention in civilian court, and also to eliminate challenges to 230

Cf. St. Cyr, 533 U.S. at 340 n.5 (2001) (Scalia, J., dissenting)(―If ... the writ could not be suspended within the meaning of the Suspension Clause until Congress affirmatively provided for habeas by statute, then surely Congress may subsequently alter what it had initially provided for, lest the Clause become a one-way ratchet.‖). 231 Cf. Felker, 518 U.S. 663 (Holding that restrictions on successive petitions for habeas corpus by prisoners convicted in state courts did not suspend the writ, but merely applied a modified res judicata rule to control abuse of the writ); Boumediene, 128 S.Ct. 2229 at 2276-77 (explaining that some reasonable regulations on habeas cases to relieve governmental burden or preserve security will be permissible). 232 See United States v. Hayman, 342 U.S. 205 (1952); Hill v. United States, 368 U.S. 424 (1962); Swain , 430 U.S. 372 (1977); Felker, 518 U.S. 651 (1996); St. Cyr, 533 U.S. 289. 233 Boumediene, 128 S.Ct. 2229 at 2266. 234 The Boumediene Court did not address the matter because the MCA did not purport to act as a formal suspension of the writ. Boumediene, 128 S.Ct. at 2262.

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conditions of confinement or transfers out of US custody. In a speech before the American Enterprise Institute on July 21, 2008,235 Attorney General Mukasey discussed this suggestion along with five other points he felt Congress should address: 

  

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

Courts should be prohibited from ordering that an alien captured and detained abroad be brought to the United States for court proceedings, or be admitted and released into the United States. Procedures should be put in place to ensure that intelligence information, including sources and methods, would be protected from disclosure to terrorist suspects. Detainees awaiting trial by military commission should be prevented from bringing habeas petitions until the completion of their trials. Congress should reaffirm the authority to detain as enemy combatants persons who have ―engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.‖ Congress should establish sensible procedures for habeas challenges by assigning one district court exclusive jurisdiction over the cases, with one judge deciding common legal issues; by adopting ―rules that strike a reasonable balance between the detainees‘ rights to a fair hearing ... and our national security needs ...‖ that would ―not provide greater protection than we would provide to American citizens held as enemy combatants in this conflict‖; and ensuring that court proceedings ―are not permitted to interfere with the mission of our armed forces.‖

Other proposals that have been floated include the creation of a new national security court to authorize preventive detention of terror suspects236 or the use of civilian or military courts to prosecute all detainees who cannot be released to their home country or another country willing to take them. Among the issues associated with prosecuting all of the detainees in civilian court is that the detainees may not have committed any crimes cognizable in federal court. Persons accused of engaging in terrorist acts (including attempts, conspiracies and the like) against the United States could likely be prosecuted,237 but jurisdiction over offenses involving the provision of material support to a terrorist organization abroad is somewhat more limited, and for acts occurring prior to 2004, included only persons subject to the jurisdiction of the United States.238Congress could also take no

235

The Attorney General‘s prepared statement is available at http://www.scotusblog.com/wp/mukaseycurb-courtspowers-on-detainees 236 See Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System, Hearing before the Senate Judiciary Committee, June 4, 2008. For a review and criticism of some proposals, see the Constitution Project, A Critique of “National Security Courts,” available at http://www.constitutionproject.org/pdf/ Critique_ofjhe_National_Security_Courts.pdf. 237 See, e.g., 18 U.S.C. § 2332 (prescribing penalties for homicides of U.S. nationals abroad and other violence directed at the United States, so long as the act is ―intended to coerce, intimidate, or retaliate against a government or a civilian population‖); 18 U.S.C. § 2232b (acts of terrorism transcending national boundaries). 238 See 18 U.S.C. § 2339B (provision of material support to designated terrorist organization prior to amendment by P.L. 108-458, § 6603(d), December 17, 2004); see also 18 U.S.C. § 2339 (proscribing harboring or concealing terrorists, but only after October 26, 2001 enactment of P.L. 107-56, title VIII, § 803(a)). The Ex Post Facto Clause prevents prosecution or charges that would not have been applicable when the offense occurred, U.S. CONST. art. 1, § 9, cl. 3.

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action and allow the courts to address the issues in the course of deciding the habeas petitions already docketed.

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Scope of Challenges Whether Congress enacts legislation to guide the courts or permits courts to resolve the habeas cases as they now stand, courts will be faced with determining the scope of the writ as it applies to detainees in Guantanamo and perhaps elsewhere outside the United States. Although the Boumediene Court held that DTA review procedures were an inadequate substitute for habeas, it expressly declined to assess ―the content of the law that governs‖ the detention of aliens at Guantanamo.239 Nonetheless, the Supreme Court identified a number of potential deficiencies in the status review process that necessitated habeas review of CSRT determinations, including the detainee‘s lack of counsel during the hearings; the presumption of validity accorded to the government‘s evidence; procedural and practical limitations upon the detainee‘s ability to present evidence rebutting the government‘s charges against him and to confront witnesses; potential limitations on the detainee‘s ability to introduce exculpatory evidence; and limitations on the detainee‘s ability to learn about the nature of the government‘s case against him to the extent that it is based upon classified evidence.240 Whether these procedures violate due process standards, facially or as applied in a given case, and whether a particular detainee is being unlawfully held, are issues that will be addressed by the District Court when reviewing the habeas claims of Guantanamo detainees. Boumediene considered challenges to the legality of detention, the issue at the heart of most of the habeas challenges brought by Guantanamo detainees to date. However, there are also some cases challenging the conditions under which a detainee is being held. These two categories of challenges may involve different procedural routes and the application of different constitutional rights. The extent to which Congress may limit the scope of challenges Guantanamo detainees may bring may turn on the unresolved question of which constitutional rights apply to aliens detained in territory abroad. If detainees are transferred into the United States, the degree to which Congress may limit their access to the courts may be subject to further constitutional constraints. The Supreme Court has not directly addressed whether there must exist a judicial forum to vindicate all constitutional rights. Justice Scalia has pointed out that there are particular cases, such as political questions cases, where all constitutional review is in effect precluded.241 Other commentators point to sovereign immunity and the ability of the government to limit the remedies available to plaintiffs.242 However, the Court has, in cases involving particular rights, generally found a requirement that effective judicial remedies must be available.243 Although the extent of constitutional rights enjoyed by aliens outside the territory of the United States is subject to continuing debate, the right of aliens within the 239

Boumediene, 128 S. Ct. 2229 at 67. See Boumediene, 128 S. Ct. 2229 at 37-38, 54-56. 241 486 U.S. at 612-13 (Scalia, J., dissenting). 242 Bartlett v. Bowen, 816 F.2d 695, 719-720 (1987)(Bork, J., dissenting). 243 See e.g., First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987)(holding that the Constitution mandates effective remedies for takings). 240

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United States to liberty except when restricted in accordance with due process of law seems well established.

The Fact and Length of Detention At least until the D.C. Circuit‘s ruling in the Bismullah case in January 2009, the DTA provided a means for challenging the validity of decisions by a CSRT that a detainee is an enemy combatant. The D.C. Circuit Court of Appeals has not fully clarified the scope of evidence it may review in DTA proceedings. The government has argued that administrative law (applicable to reviews of agency determinations) supplies the appropriate model for reviewing CSRT determinations, so that only the record of the CSRT proceedings is subject to review, and that extrinsic evidence not already part of the record should not be subject to discovery.244 The D.C. Circuit, however, rejected that view, holding that its review must encompass all of the information a CSRT is authorized to obtain and consider.245 The D.C. Circuit‘s jurisdiction under the DTA also included constitutional review of whether the standards and procedures utilized in the military proceedings below were consistent with the Constitution and laws of the United States. This seems to bring the scope of DTA proceedings closer to that which would be available in habeas review. However, habeas challenges may also permit challenges to detention not based solely on the adequacy of CSRT procedures. First, there is no statutory requirement that all detainees receive a CSRT determination in order to be detained, nor that detainees receive any kind of a hearing within any certain period of time after their capture. This might have left some detainees without effective means to pursue a DTA challenge. Moreover, it appears that some detainees who were determined by CSRTs to be properly classified as enemy combatants have been released from Guantanamo without a new determination, which may call into question the importance of the CSRT procedure as the primary means for obtaining release and therefore, the sole focus of a collateral challenge. Detainees may also be transferred or released based on the results of periodic reviews conducted by Administrative Review Boards (ARBs)246 to determine whether the detainee is no longer a threat or that it is in the interest of the United States and its allies to release the prisoner. There is no opportunity under the DTA to appeal the result of an ARB finding. While new evidence uncovered by this process may result in the convening of a new CSRT to determine continued enemy combatant status,247 the DTA does not provide an avenue to appeal a decision not to convene a new CSRT.248 The Supreme Court‘s ruling that the constitutional writ of habeas extends to Guantanamo suggests that detainees may seek habeas review in such cases.

244

See Gov‘t Br. Address. Pend. Prelim. Mots. at 49-51, Bismullah v. Gates, No. 06-1197 (D.C. Cir.). Bismullah v. Gates, No. 06-1197 (D.C. Cir. July 20, 2007)(order on procedural motions). 246 See DOD Press Release, ―DoD Announces Draft Detainee Review Policy‖ (March 3, 2004), available at http://www.defenselink.mil/releases/2004/nr20040303-0403.html; Memorandum from Deputy Secretary of Defense, Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at U.S. Navy Base, Guantanamo Bay, Cuba (July 14, 2006), available at http://www. defenselink.mil/news/Aug2006/ d20060809ARBProceduresMemo.pdf. 247 CSRT Implementing Directive, supra footnote 39, at encl. 10 (implementing Detainee Treatment Act provisions). 248 Boumediene, 128 S.Ct. 2229 at 2273-74 (stating that the ability to request a new CSRT to consider new evidence is an ―insufficient replacement for the factual review these detainees are entitled to receive through habeas corpus‖). 245

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The scope and standard for habeas review involving detainees has been the subject of several orders by judges for the U.S. District Court for the District of Columbia. In such proceedings, the government has the burden of demonstrating, by a preponderance of the evidence, the lawfulness of the petitioner‘s detention.249 The government is also required to explain its legal justification for detaining the petitioner, including, where appropriate, the standard it uses to define the scope of its detention authority.250 Not all district court judges have opted to rely upon the definitional standard offer by the government in the context of habeas challenges by Guantanamo detainees, instead opting to rely upon the standard used by the DOD in CSRT proceedings.251 The government is also required to provide the petitioner with all reasonably available exculpatory evidence.252 In December 2008, Senior Judge Thomas F. Hogan, who is coordinating and managing most Guantanamo cases for the District Court, issued a case management order that, among other things, requires the government to disclose any evidence it has relied upon to justify the petitioner‘s detention.253 With respect to classified information, Judge Hogan‘s order requires the government, unless granted an exception by the district court judge considering the case‘s merits, to ―provide the petitioner‘s counsel with the classified information, provided the petitioner‘s counsel is cleared to access such information. If the government objects to providing the petitioner‘s counsel with the classified information, the government shall move for an exception to disclosure.‖ There is no requirement that classified information be provided to a petitioner himself. Moreover, the order rescinds the requirement of an earlier case management order that petitioners receive an ―adequate substitute‖ for any classified information disclosed to the court or petitioners‘ counsel.254

Conditions of Detention Although it appears less common for challenges to prison conditions to be entertained under habeas review, such cases have been heard by federal courts on habeas petitions.255 249

See In re Guantanamo Bay Detainee Litigation, No. 08-0442, 2008 WL 4858241, Order, at *3 (D.D.C. November 6, 2008) (Hogan, J.) (hereinafter ―November Order‖) 250 See id. at * 1; el Gharani v. Bush, 593 F.Supp.2d 144 (D.D.C. 2009) (Leon, J.) (finding that when the government justifies the detention of a habeas petitioner on the ground that he is an ―enemy combatant,‖ it must provide a definition of the term). 251 See Boumediene v. Bush, No. 04-1166, Order (D.D.C. October 27, 2008) (Leon, J.) (declining to use the ―enemy combatant‖ definition suggested by the Bush Administration during habeas proceedings, and instead relying on the definition employed in CSRT proceedings), available at http://www. scotusblog.com/wp/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdf. See also supra, at ―Parhat v. Gates‖ (discussing definition of ―enemy combatant‖ used in CSRT proceedings). 252 See November Order, supra footnote 249, at *1. See also Boumediene v. Bush, No. 04-1166, Order (D.D.C. August 27, 2008) (Leon, J.), available at http://www.scotusblog.com/wp/wp-content/ uploads/2008/08/leon-case-manage-order8-27-08.pdf (requiring government to provide ―any evidence contained in the material reviewed in developing the return for the petitioner, and in preparation for the hearing for the petitioner, that tends materially to undermine the Government‘s theory as to the lawfulness of petitioner‘s detention‖). 253 In re Guantanamo Bay Detainee Litigation, No. 08-0442, 2008 WL 5245890, Order, at *1 (D.D.C., December 16, 2008) (Hogan, J.). 254 November Order, supra footnote 249, at *2. 255 ―A motion pursuant to § 2241 generally challenges the execution of a federal prisoner‘s sentence, including such matters as the administration of parole, computation of a prisoner‘s sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison

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Persons incarcerated in federal prisons may also ask a district court to address such complaints using their general jurisdiction to consider claims that arise under the Constitution,256 by means of a writ of mandamus.257 These writs, which are directed against government officials, have been used to require those officials to act in compliance with constitutional requirements. Although these challenges are often denied on the merits or on procedural grounds, cases have been brought based on the First Amendment,258 Sixth Amendment,259 Eighth Amendment260 and various other grounds.261 The Boumediene Court declined to discuss whether challenges to conditions of detention are within the constitutional scope of the writ as it applies to Guantanamo detainees.262 A variety of challenges has been raised by detainees in Guantanamo regarding conditions of their detention, including such issues as whether prisoners can be held in solitary confinement263 when they can be transferred,264 or whether they can have contact with relatives.265 Although some of these were brought as habeas corpus cases,266 Guantanamo detainees have also sought relief from the courts using the All Writs Act,267 principally to prevent their transfer to other countries without notice,268 but for other reasons too.269 Use of conditions.‖ Jiminian v. Nash, 245 F.3d 144 (2d Cir. 2001). See, e.g., Rickenbacker v. United States, 365 F. Supp. 2d 347 (E.D.N.Y. 2005) (challenging failure to provide drug and psychiatric treatment in accordance with sentencing court‘s recommendation). 256 28 U.S.C. § 1331. See Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986). 257 Russell Donaldson, Mandamus, under 28 U.S.C.A. §1361, To Obtain Change in Prison Condition or Release of Federal Prisoner, 114 A.L.R. Fed. 225 (2005). Relief in mandamus is generally available where: (1) the plaintiff can show a clear legal right to the performance of the requested action; (2) the duty of the official in question is clearly defined and nondiscretionary; (3) there is no other adequate remedy available to the plaintiff; (4) there are other separate jurisdictional grounds for the action. Id. at 1(a). A writ of mandamus may issue only where ―the duty to be performed is ministerial and the obligation to act peremptory, and clearly defined. The law must not only authorize the demanded action, but require it; the duty must be clear and undisputable.‖ Ali v. Ashcroft, 350 F. Supp. 2d 28, 65 (D.D.C. 2004), quoting Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1479 (D.C. Cir. 1995). 258 See Long v. Parker, 390 F.2d. 816 (3rd Cir. 1968) (prisoner suit to obtain access to religious weekly newspaper stated a valid cause of action worthy of a factual hearing). 259 Stover v. Carlson, 413 F. Supp. 718 (D. Conn. 1976) (ending federal prison practice of opening privileged communications outside of prisoner‘s presence). 260 Fullwood v. Clemmer, 206 F. Supp. 370 (D.D.C. 1962) (keeping prisoner in solitary confinement for more than two years for minor disciplinary infractions violates the Eighth Amendment). It should be noted that where a prisoner has not yet been convicted of a crime, a challenge to conditions of detentions may sound in Due Process rather than as an Eighth Amendment challenge. Bell v. Wolfish, 441 U.S. 520 (1979). 261 See generally Donaldson, supra footnote 257. 262 See Boumediene, 128 S. Ct. 2229 at 2274 (―In view of our holding we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement.‖). 263 Paul Shukovsky, Terrorism Suspect‟s Suit Tells of U.S. Abuse: Documents in Guantanamo Case Describe Extreme Isolation, SEATTLE POST-INTELLIGENCER, August 6, 2004, at A1. 264 Al-Anazi v. Bush, 370 F. Supp. 2d 188 (D.D.C. 2005). 265 Josh White, Lawyers Seek Improved Conditions for Suicidal Detainee, WASH. POST, November 5, 2005, at A8. 266 See, e.g., In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 480-81 (D.D.C. 2005)(rejecting claims on other grounds). 267 All Writs Act, 28 U.S.C. § 1651. 268 Belbach v. Bush, 520 F.3d 452, 456 (D.C. Cir. 2008) (holding the MCA leaves intact the presumptive jurisdiction of federal courts to inquire into the constitutionality of a jurisdiction-stripping statute). See also Al Ansi v. Bush, No. 08- 1923, 2008 WL 5412360, Order (D.D.C., December 29, 2008)

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the All Writs Act by a court is an extraordinary remedy, generally not invoked if there is an alternative remedy available.270 Thus far, reviewing courts have interpreted Boumediene as finding only that the constitutional writ of habeas enables Guantanamo detainees to challenge the legality of their detention, while judicial review of other aspects of their detention continues to be barred under the MCA.271 In February 2009, a D.C. Circuit panel held in the case of Kiyemba v. Obama that the Constitution‘s due process protections did not extend to non-citizen detainees held at Guantanamo.272 The petitioners in that case have requested that the Supreme Court grant certiorari to review the panel‘s ruling. Presuming that the panel‘s holding concerning the due process rights of Guantanamo detainees is not overturned, however, the ability of non-citizen detainees held outside the United States to challenge the conditions of their detention may be quite limited. In contrast, if detainees currently held at Guantanamo are transferred into the United States, they might be able to more successfully pursue legal challenges against aspects of their detention that allegedly infringe upon constitutional protections owed to them.

Available Remedy Under Title 28, U.S. Code, a court conducting habeas review must ―award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the detainee is not entitled to it.‖273 The court can order either party to expand the record by submitting additional information bearing on the petition.274 The court may order hearings to assist it in determining the facts, and is authorized to ―dispose of the matter as law and justice require,‖275 or in criminal cases, to vacate a sentence, grant a new trial, or order that a prisoner be released.276 By contrast, the DTA review procedures do not address the remedies available to detainees who prevail in a challenge. Detainees who succeed in persuading a CSRT that they are not enemy combatants do not have a right to release or even a right initially to be informed of the CSRT‘s decision. If the CSRT Director approves a finding that a detainee is no longer an enemy combatant, the detainee may be held for as long as it takes the government to arrange for his transfer to his home country or another country willing to provide asylum, during which time he need not be told of the CSRT‘s conclusion.277 According to one report of unclassified CSRT records, in the event the CSRT Director disapproves of the finding, new CSRTs may be convened, apparently without notifying or

(requiring government to give court and petitioner‘s counsel 30 days‘ notice prior to releasing or transferring petitioner from Guantanamo). 269 See El-Banna v. Bush, No. 04-1144, 2005 WL 1903561 (D.D.C. July 18, 2005) (seeking preservation of records relating to treatment of detainees). 270 Al-Anazi v. Bush, 370 F. Supp. 2d 188, 196 (D.D.C. 2005). 271 See supra footnote 207. 272 Kiyemba v. Obama, 555 F.3d 1022, 1026-1027 (D.C. Cir. 2009). 273 28 U.S.C. § 2243. 274 Rules Governing § 2255 Cases, Rule 7, 28 U.S.C.A. foll. § 2255 (applicable to prisoners subject to sentence of a federal court). 275 28 U.S.C. § 2243. 276 28 U.S.C. § 2255. 277 CSRT Implementing Directive, supra footnote 39, at encl. 1, para. I(9)-(10).

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permitting the participation of the detainee, although the government might present new evidence to the new panel.278 The Supreme Court viewed the lack of an express power permitting the courts to order the release of a detainee as a factor relevant to the DTA‘s inadequacy as a substitute proceeding.279 In the context of CSRT determinations, the government suggested to the Court that remand for new CSRT proceedings would be the appropriate remedy for a determination that an error of law was made or that new evidence must be considered.280 Whether such a remedy would be acceptable probably depends on whether measures are taken to decrease the risk of error under the CSRT procedures. The available remedy for Guantanamo detainees found to be unlawfully held by the United States is an issue of ongoing litigation. The typical remedy for habeas claims is the release of the individual being unlawfully detained.281 But given that detainees are being held in a military facility in Cuba, it‘s unclear whether the order of their release is a practical remedy, particularly in cases where the government is unable to effectuate a detainee‘s transfer to a third country. Whether or not a court would have the power to craft a habeas remedy for Guantanamo detainee that permits their entry into the United States remains unresolved. The Supreme Court has recognized that habeas relief ―is at its core, an equitable remedy,‖282 and judges have broad discretion to fashion an appropriate remedy for a particular case. On the other hand, in the immigration context, courts have long recognized that the political branches have plenary authority over whether arriving aliens may enter the United States.283 As previously discussed, in October 2008, a federal district court ordered the release into the United States of 17 Guantanamo detainees who were no longer considered enemy combatants, finding that the political branches‘ plenary authority in the immigration context did not contravene the petitioners‘ entitlement to an effective remedy to their unauthorized detention.284 The D.C. Circuit panel stayed the district court‘s order pending appellate review,285 and subsequently reversed the district court‘s decision in the case of Kiyemba v. Obama, decided in February 2009. Writing for the majority of the panel, Judge Randolph stated that federal courts lacked the authority to order a non-citizen detainee‘s entry and release into the United States. In reaching this conclusion, the majority opinion cited long-standing Supreme Court 278

See Mark Denbeaux et al., No-Hearing Hearings, CSRT: The Modern Habeas Corpus?, at 37-40 (2006), available at http://law. The named author is a professor at Seton Hall University School of Law and serves as counsel to two Guantanamo detainees. 279 Boumediene, 128 S.Ct. at 2271. 280 See Gov‘t Br. in Opp. to Pet. for Reh‘g, Boumediene v. Bush, No. 16-1195 (U.S.). 281 See, e.g., Munaf v. Geren, 553 U.S. __, 128 S.Ct. 2207, 2221 (2008) (―The typical remedy for ... [unlawful] detention is, of course, release.‖); Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (―[T]he traditional function of the writ is to secure release from illegal custody‖). 282 Schlup v. Delo, 513 U.S. 298, 319 (1995). 283 Landon v. Plasencia, 459 U.S. 21, 32 (1981) (―This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative‖); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 216 (1953) (finding that an inadmissible alien‘s ―right to enter the United States depends on the congressional will, and courts cannot substitute their judgment for the legislative mandate‖). 284 In re Guantanamo Bay Detainee Litigation, 581 F.Supp.2d 33(D.D.C. 2008). 285 iyemba v. Bush, No. 08-5424, 2008 WL 4898963, Order (D.C. Cir., October 20, 2008) (per curiam).

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jurisprudence in the immigration context which recognized and sustained, ―without exception ... the exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms.‖286 According to the majority, this jurisprudence made clear that it was ―not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.‖287 The Kiyemba majority held that the district court lacked the legal authority to override the Executive‘s determination not to admit the petitioners into the United States. The majority held that the district court‘s order was not supported by federal statute or treaty. The majority also found that aliens held at Guantanamo were not protected by the Due Process Clause of the Constitution, and the district court‘s order therefore could not be based upon a liberty interest owed to the petitioners under the Constitution. The Kiyemba majority also found that the district court‘s order was improper to the extent that it was based on the notion that where there is a legal right, there must also be a remedy. The majority stated that it did ―not believe the maxim reflects federal statutory or constitutional law.‖288 While acknowledging that the Supreme Court‘s decision in Boumediene made clear that the constitutional writ of habeas extended to Guantanamo detainees, the Kiyemba majority held that the constitutional writ of habeas did not entitle petitioners to the ―extraordinary remedy‖ of being ordered transferred and released into the United States.289 Writing separately from the Kiyemba majority, Judge Rogers argued that the majority‘s opinion was ―not faithful to Boumediene and would compromise both the Great Writ as a check on arbitrary detention and the balance of powers over exclusion and admission and release of aliens into the United States.‖290 She would have found that the Executive has no independent authority to detain aliens to prevent their entry into the United States, and would have held that a habeas court has the power to order the conditional release of a Guantanamo detainee into the United States when the Executive lacks authority to detain him. Nonetheless, she concurred with the majority‘s judgment that the district court‘s order was improper, because the lower court had not considered whether the Executive was authorized to detain the petitioners pursuant to U.S. immigration laws even after it had determined that they were not ―enemy combatants.‖

Extraterritorial Scope of Constitutional Writ of Habeas In Boumediene, the Supreme Court held that the constitutional writ of habeas extended to persons detained at Guantanamo, even though they are held outside the de jure sovereign territory of the United States. Left unresolved in the Court‘s discussion of the extraterritorial application of the Constitution is the degree to which the writ of habeas and other constitutional protections applies to aliens detained in foreign locations other than Guantanamo (e.g., at military facilities in Afghanistan and elsewhere, or at any undisclosed U.S. detention sites overseas). In April 2009, a federal district court held that the

286

Kiyemba, 555 F.3d at 1025-1026. Id. at 1027 (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950)). 288 Id 289 Id. at 1028. 290 Id. at 1032 (Rogers, J., concurring). 287

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constitutional writ of habeas extended to at least some detainees held by the United States at the Bagram Theater Internment Facility in Afghanistan.291 The Boumediene Court indicated that it would take a functional approach in resolving such issues, taking into account ―objective factors and practical concerns‖ in deciding whether the writ extended to aliens detained outside U.S. territory. Practical concerns mentioned in the majority‘s opinion as relevant to an assessment of the writ‘s extraterritorial application include the degree and likely duration of U.S. control over the location where the alien is held; the costs of holding the Suspension Clause applicable in a given situation, including the expenditure of funds to permit habeas proceedings and the likelihood that the proceedings would compromise or divert attention from a military mission; and the possibility that adjudicating a habeas petition would cause friction with the host government.292 The Boumediene Court declined to overrule the Court‘s prior decision in Eisentrager, in which it found that convicted enemy aliens held in post- WWII Germany were precluded from seeking habeas relief. Whether enemy aliens are held in a territory that more closely resembles post-WWII Germany than present-day Guantanamo may influence a reviewing court‘s assessment of whether the writ of habeas reaches them, as well as its assessment of the merits of the underlying claims. In April 2009, District Court Judge John D. Bates found in the case of Al Maqaleh v. Gates that the constitutional writ of habeas may extend to non-Afghan detainees currently held by the United States at the Bagram Theater Internment Facility in Afghanistan, when those detainees had been captured outside of Afghanistan but were transferred to Bagram for long-term detention as enemy combatants. Judge Bates held that the circumstances surrounding the detention of the petitioners in Al Maqaleh were ―virtually identical to the detainees in Boumediene – they are [non-U.S.] citizens who were ... apprehended in foreign lands far from the United States and brought to yet another country for detention‖293 Applying the factors discussed in Boumediene as being relevant to a determination of the extraterritorial scope of the writ of habeas corpus, Judge Bates concluded that the writ extended to three of the four petitioners at issue in Al Maqaleh, who were not Afghan citizens. The constitutional writ was not found to extend to a fourth petitioner who was an Afghan citizen, however, because review of his habeas petition could potentially cause friction with the Afghan government.294 It seems likely that this ruling will be appealed. Presuming that the ruling is upheld, it could have significant ramifications for U.S. detention policy, as at least some foreign detainees held outside the United States or Guantanamo could seek review of their detention by a U.S. court.

Use of Habeas Petitions to Challenge the Jurisdiction of Military Commissions Although President Obama has instructed the Secretary of Defense to take steps to ensure that proceedings before military commissions are halted pending executive review of all Guantanamo detentions, it is possible that some military commission proceedings will

291

Al Maqaleh v. Gates, 2009 WL 863657 (D.D.C., April 2, 2009). Boumediene, 128 S.Ct. at 2261-62. 293 Al Maqaleh, 2009 WL 863657, at *2. 294 Id. at *21. 292

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ultimately go forward.295 Whether detainees who are facing prosecution by a military commission may challenge the jurisdiction of such tribunals prior to the completion of their trial remains unsettled, although the district court has so far declined to enjoin military commissions.296 Supreme Court precedent suggests that habeas corpus proceedings may be invoked to challenge the jurisdiction of a military court even where habeas corpus has been suspended.297 Habeas may remain available to defendants who can make a colorable claim not to be enemy combatants within the meaning of the MCA, and therefore to have the right not to be subject to military trial at all, perhaps without necessarily having to await a verdict or exhaust the appeals process.298Interlocutory challenges contesting whether the charges make out a valid violation of the law of war, for example, seem less likely to be entertained on a habeas petition.299

Congressional Authority over Federal Courts

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Whether Congress can limit the ability of detainees to bring cases challenging the conditions of their detention may depend on the extent that such challenges are based on constitutional considerations. If it is determined that no other procedure is available to vindicate constitutional rights, then it might be argued that the Congress‘s limitation on the use of habeas corpus or other avenues of redress by the detainees is an unconstitutional limitation. The Constitution contains few requirements regarding the jurisdiction of the federal courts. Article III, Section 1, of the Constitution provides that The judicial Power of the United States, shall be vested in one supreme Court, and in 300 such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good 295

On January 29, 2009, a military judge denied the government‘s request to delay military commission proceedings involving a detainee alleged to have planned the attack on the U.S.S. Cole in 2000. Other military judges had previously agreed to government motions to delay commission proceedings. See Peter Finn, ―Guantanamo Judge Denies Obama's Request for Delay,‖ Washington Post, January 30, 2009, p. A14. 296 See Khadr v. United States, No. 07-1405 (D.C. Cir. June 20, 2008); Hamdan v. Gates, No. 04-1519 (JR) (D.D.C. July 18, 2008)(order denying injunction of military commission proceedings). 297 See ex parte Milligan, 71 U.S. (4 Wall.) 2, 115-16 (1866); cf. ex parte Quirin, 317 U.S. 1, 24-25 (1942)(dismissing contention that presidential proclamation stripped Court of authority to review case, stating that ―nothing in the Proclamation precludes access to the courts for determining its applicability to the particular case‖). 298 Schlesinger v. Councilman, 420 U.S. 738, 759 (1975)(finding judicial abstention is not appropriate in cases in which individuals raise ― ‗substantial arguments denying the right of the military to try them at all,‘‖ and in which the legal challenge ―turn[s] on the status of the persons as to whom the military asserted its power‖); United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 (1955). But see Al Odah v. Bush, 593 F.Supp.2d 53 (D.D.C. 2009) (court would stay consideration of habeas claims during course of military commission proceedings, but stay would not occur until charges were referred to commission); Khadr v. Bush, 587 F.Supp.2d 225 (D.D.C. 2008) (ordering stay in habeas case to the extent that it raised issues that have been, will be, or can be raised in military commission proceedings against petitioner and the subsequent appeals process). 299 Cf. New v. Cohen, 129 F.3d 639, 643 (D.C. Cir. 1997). 300 The latter part of this quoted language dovetails with clause 9 of § 8 of Article I, under which Congress is authorized ―[t]o constitute tribunals inferior to the supreme Court.‖

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Jennifer K. Elsea, Michael John Garcia and Kenneth R. Thomas Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

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Although Article III provides for a Supreme Court headed by the Chief Justice of the United States,301 nothing else about the Court‘s structure and operation is set forth, leaving the size and composition of the Court, as well as the specifics, if any, of the lower federal courts, to Congress.302 Utilizing its power to establish inferior courts, Congress has also created the United States district courts,303 the courts of appeals for the thirteen circuits,304 and other federal courts.305 On its face, there is no limit on the power of Congress to make exceptions to or otherwise regulate the Supreme Court‘s appellate jurisdiction, to create inferior federal courts, or to specify their jurisdiction. However, the same is true of the Constitution‘s other grants of legislative authority in Article I and elsewhere, which does not prevent the application of other constitutional principles to those powers. ―[T]he Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas,‖ Justice Black wrote for the Court in a different context, but ―these granted powers are always subject to the limitations that they may not be exercised in a way that violates other specific provisions of the Constitution.‖306 Justice Harlan seems to have had the same thought in mind when he said that, with respect to Congress‘s power over jurisdiction of the federal courts, ―what such exceptions and regulations should be it is for Congress, in its wisdom, to establish, having of course due regard to all the Constitution.‖307 Thus, it is clear that while Congress has significant authority over administration of the judicial system, it may not exercise its authority over the courts in a way that violates constitutional rights such as the Fifth Amendment due process clause or precepts of equal protection. For instance, Congress could not limit access to the judicial system based on race or ethnicity.308 Nor, without amendment of the Constitution, could Congress provide that the

301

Although the position of Chief Justice is not specifically mandated, it is referenced in Article I, § 3, Cl. 6, in connection with the procedure for the Senate impeachment trial of a President: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. 302 By the Judiciary Act of 1789, it was established that the Court was to be composed of the Chief Justice and five Associate Justices. The number of Justices was gradually increased to ten, until in 1869 the number was fixed at nine, where it has remained to this day. 303 28 U.S.C. §§ 81-131, 132. 304 28 U.S.C. §§ 41, 43 (District of Columbia Circuit, First Circuit through Eleventh Circuit, Federal Circuit). 305 See, e.g., 28 U.S.C. §§ 151 (U.S. bankruptcy courts); 251 (U.S. Court of International Trade). 306 Williams v. Rhodes, 393 U.S. 23, 29 (1968). 307 United States v. Bitty, 208 U.S. 393, 399-400 (1908). 308 Laurence Tribe, Jurisdictional Gerrymandering: Zoning Disfavored Rights Out of the Federal Courts, 16 HARV. C.R.- C.L.L. REV. 129, 142-43 (1981). For instance, segregation in courtrooms is unlawful and may not be enforced through contempt citations for disobedience, Johnson v. Virginia, 373 U.S. 61 (1963), or through other means. Treatment of parties to or witnesses in judicial actions based on their race is impermissible. Hamilton v. Alabama, 376 U.S. 650 (1964)(reversing contempt conviction of witness who refused to answer questions so long as prosecutor addressed her by her first name).

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courts may take property while denying a right to compensation under the takings clause.309 In general, the mere fact Congress is exercising its authority over the courts does not serve to insulate such legislation from constitutional scrutiny.

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Separation of Powers Issues It is also clear that Congress may not exercise its authority over the courts in a way that violates precepts of separation of powers. The doctrine of separation of powers is not found in the text of the Constitution, but has been discerned by courts, scholars, and others in the allocation of power in the first three Articles; that is, the ―legislative power‖ is vested in Congress, the ―executive power‖ is vested in the President, and the ―judicial power‖ is vested in the Supreme Court and the inferior federal courts. That interpretation is also consistent with the speeches and writings of the framers. Beginning with Buckley v. Valeo,310 the Supreme Court has reemphasized separation of powers as a vital element in American federal government.311 Justice Kennedy, in Boumediene stressed his view that the writ of habeas corpus itself plays an important role in preserving the operation of separation of powers principles.312 The federal courts have long held that Congress may not act to denigrate the authority of the judicial branch. In the 1782 decision in Hayburn ‟s Case,313 several Justices objected to a congressional enactment that authorized the federal courts to hear claims for disability pensions for veterans. The courts were to certify their decisions to the Secretary of War, who was authorized either to award each pension or to refuse it if he determined the award was an ―imposition or mistaken.‖ The Justices on circuit contended that the law was unconstitutional because the judicial power was committed to a separate department and because the subjecting of a court‘s opinion to revision or control by an officer of the executive or the legislative branch was not authorized by the Constitution. Congress thereupon repealed the objectionable features of the statute.314 More recently, the doctrine of separation of powers 309

The Fifth Amendment provides that no ―private property [ ] be taken for public use without just compensation.‖ 310 424 U.S. 1, 109-43 (1976). 311 It is true that the Court has wavered between two approaches to cases raising separation-of-powers claims, using a strict approach in some cases and a less rigid balancing approach in others. Nevertheless, the Court looks to a test that evaluates whether the moving party, usually Congress, has ―impermissibly undermine[d]‖ the power of another branch or has ―impermissibly aggrandize[d]‖ its own power at the expense of another branch; whether, that is, the moving party has ―disrupt[ed] the proper balance between the coordinate branches [by] preventing the [other] Branch from accomplishing its constitutionally assigned functions.‖ Morrison v. Olson, 487 U.S. 654, 695 (1988). See also INS v. Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 478 U.S. 714 (1986); Mistretta v. United States, 488 U.S. 361 (1989); Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Airport Noise, 501 U.S. 252 (1991). 312 Boumediene, 128 S.Ct. at 2259 (calling the writ of habeas corpus ―an indispensable mechanism for monitoring the separation of powers‖). 313 2 U.S. (2 Dall.) 409 (1792). This case was not actually decided by the Supreme Court, but by several Justices on circuit. 314 Those principles remain vital. See, e.g., Chicago & S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 113-14 (1948)(―Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government.‖); Connor v. Johnson, 402 U.S. 690 (1971).

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has been applied to prevent Congress from vesting jurisdiction over common-law bankruptcy claims in non-Article III courts.315 Allocation of court jurisdiction by Congress is complicated by the presence of state court systems that can and in some cases do hold concurrent jurisdiction over cases involving questions of federal statutory and constitutional law. Thus, the power of Congress over the federal courts is really the power to determine how federal cases are to be allocated among state courts, federal inferior courts, and the United States Supreme Court. Congress has significant authority to determine which of these various courts will adjudicate such cases, and the method by which this adjudication will occur. For most purposes, the exercise of this power is relatively noncontroversial.

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CONCLUSION The Executive‘s policy of detaining wartime captives and suspected terrorists at the Guantanamo Bay Naval Station has raised a host of novel legal questions regarding, among other matters, the relative powers of the President and Congress to fight terrorism, as well as the power of the courts to review the actions of the political branches. The DTA was Congress‘s first effort to impose limits on the President‘s conduct of what the Bush Administration termed the ―Global War on Terror‖ and to prescribe a limited role for the courts. The Supreme Court‘s decision striking the DTA provision that attempted to eliminate the courts‘ habeas jurisdiction may be seen as an indication that the Court will continue to play a role in determining the ultimate fate of the detainees at Guantanamo. However, the Court did not foreclose all options available to Congress to streamline habeas proceedings involving detainees at Guantanamo or elsewhere in connection with terrorism. Instead, it indicated that the permissibility of such measures will be weighed in the context of relevant circumstances and exigencies. As a general matter, the courts have not accepted the view that the President has inherent constitutional authority to detain those he suspects may be involved in international terrorism. Rather, the courts have looked to the language of the AUMF and other legislation to determine the contours of presidential power. The Supreme Court has interpreted the AUMF with the assumption that Congress intended for the President to pursue the conflict in accordance with traditional law-of-war principles, and has upheld the detention of a ―narrow category‖ of persons who fit the traditional definition of ―enemy combatant‖ under the law of war. Other courts have been willing to accept a broader definition of ―enemy combatant‖ to permit the detention of individuals who were not captured in circumstances suggesting their direct participation in hostilities against the United States, but a plurality of the Supreme Court warned that a novel interpretation of the scope of the law of war might cause their understanding of permissible executive action to unravel. Consequently, Congress may be called upon to consider legislation to support the full range of authority asserted by the executive branch in connection with the ―war on terror.‖ In the event the Court finds that the detentions in question are fully supported by statutory authorization, whether on the basis of existing law or new enactments, the key issue is likely to be whether the detentions comport with due process of law under the Constitution. In the event that detainees currently held at 315

Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982)

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Guantanamo are transferred into the United States, such persons may receive more significant constitutional protections. These protections may inform executive policy, legislative proposals, and judicial rulings concerning matters relating to detainees‘ treatment, continued detention, and access to federal courts.

APPENDIX. LEGISLATION IN THE 111 AND 110TH CONGRESS For discussion of legislation introduced in the 111th Congress concerning detainees, see CRS Report R40419, Analysis of Selected Legislative Proposals Addressing Guantanamo Detainees, by Anna C. Henning. In the 110th Congress, several legislative proposals were introduced which addressed the detention of persons in the ―war on terror.‖ Congress passed a reporting requirement in the National Defense Authorization Act for FY2008 addressing detainees at Guantanamo. Several other bills were introduced that would have modified detainees‘ access to the courts, or authorized or imposed new requirements upon the detention of enemy combatants. Proposals may be considered in the 111th Congress which resemble legislation introduced in the 110th Congress. The following paragraphs discuss legislative activity in the 110th Congress concerning persons detained as enemy combatants.

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National Defense Authorization Provisions The National Defense Authorization Act for Fiscal Year 2008, P.L. 110-181 (H.R. 4986), section 1067 requires the President to submit a report that contains information about detainees at Guantanamo Bay, Cuba, under the control of the Joint Task Force Guantanamo, who are or have ever been classified as ―enemy combatants.‖ The report is to identify the number of detainees who are to be tried by military commission; the number of detainees to be released or transferred; the number of detainees to be retained but not charged; and a ―description of the actions required to be undertaken, by the Secretary of Defense, possibly the heads of other Federal agencies, and Congress, to ensure that detainees who are subject to an order calling for their release or transfer from the Guantanamo Bay facility have, in fact, been released.‖ The Senate reported a provision in two earlier versions of the FY2008 Defense authorization bill, S. 1547 and S. 1548, that would have required the Secretary of Defense to convene a CSRT, conducted in accordance with requirements similar to those that apply in military commissions, to determine the status of each detainee who has been held for more than two years as an ―unlawful enemy combatant,‖ unless such detainee is undergoing trial or has been convicted by a military commission. The provision adopted the definition of ―unlawful enemy combatant‖ from the MCA, with the addition of an alien who is not a lawful combatant and who has been a ―knowing and active participant in an organization that engaged in hostilities against the United States.‖ The provision would have prohibited the use of information acquired through coercion not amounting to cruel, inhuman or degrading treatment (as defined in the DTA) unless the totality of the circumstances renders the statement reliable and possessing sufficient probative value; the interests of justice would best be served by admission of the statement into evidence; and the Tribunal determines that the alleged coercion was incident to the lawful conduct of military operations at the point of

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apprehension; or the statement was voluntary. The provision was stripped out of the Senate version of the National Defense Authorization Act for Fiscal Year 2008 (H.R. 1585) prior to passage by the Senate. The House-passed version of the National Defense Authorization Act for Fiscal Year 2009, H.R. 5658, contained a provision that would have prevented the Department of Defense from implementing a successor regulation to Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, until 60 days after Congress notification. The bill also would have declared military interrogation to be an inherently governmental function, prohibiting the use of contract personnel to interrogate detainees. The Senate considered a similar provision in its version of the FY2009 National Defense Authorization Act, S. 3001 and S. 3002, each of which were passed by the Senate. As ultimately enacted into law, however, the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (P.L. 110-417), does not prohibit interrogation by contract personnel, but expresses the sense of Congress that the Secretary of Defense should develop resources needed to ensure that interrogations be conducted by government personnel and rather than private sector contractors.

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Habeas Corpus Amendments Several bills were introduced in the 110th Congress to amend the habeas provisions in the DTA. H.R. 1189, the Habeas Corpus Preservation Act, would have required that the MCA be construed to avoid any effect on the right of any U.S. resident to habeas corpus. The Military Commissions Habeas Corpus Restoration Act of 2007, H.R. 267, would have repealed subsection (e) of 28 U.S.C. § 2241. The bill would have added a new Section 1632 to Title 28, providing that no court has jurisdiction to hear cases against the United States or its agents by aliens detained as enemy combatants except for the reviews provided in the DTA and habeas corpus petitions. H.R. 2826 would have amended 28 U.S.C. § 2241(e) to allow habeas corpus actions and requests for injunctive relief against transfer, except in cases of detainees held in an active war zone where the Armed Forces are implementing AR 190-8 or any successor regulation. However, habeas challenges related to the decisions of CSRT would have been limited to the United States Court of Appeals for the District of Columbia Circuit under the same restrictions in scope that currently apply to appeals of CSRT decisions under the DTA. The bill also would have amended 10 U.S.C. § 950j(b) to restore jurisdiction for habeas corpus, but not for other actions, related to the prosecution, trial or judgment of a military commission. H.R. 2710 would have repealed 28 U.S.C. § 2241(e) to restore jurisdiction over all cases related to the detention of persons as ―enemy combatants,‖ but would have prohibited challenges other than habeas corpus actions in cases relating to the prosecution, trial, or judgment of a military commission. H.R. 2543, the Military Commissions Revision Act of 2007, would have revised the definition of unlawful enemy combatant to cover only a ―person who has engaged in, attempted, or conspired to engage in acts of armed hostilities or terrorism against the United States or its co- belligerents, and who is not a lawful enemy combatant.‖ Under the bill, CSRT decisions would no longer be dispositive for purposes of determining the jurisdiction of military commissions. Statements obtained by a degree of coercion less than torture would be admissible in a military commission only if the military

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judge finds that ―the totality of the circumstances indicates that the statement possesses probative value to a reasonable person; the interests of justice would best be served by admitting the statement into evidence; and the interrogation methods used to obtain the statement do not amount to cruel, inhuman or degrading treatment.‖ Habeas corpus jurisdiction would also have been restored for alien enemy combatants after two years of detention if no criminal charges were pending against the detainee. S. 185/H.R. 1416, the Habeas Corpus Restoration Act, would have repealed subsection (e) of 28 U.S.C. § 2241, but would have amended 10 U.S.C. § 950j so that court jurisdiction would continue to be unavailable for detainees seeking to challenge military commissions, except through the limited procedures under the DTA, as amended, and ―as otherwise provided in [chapter 47a of title 10, U.S. Code] or in section 2241 of title 28 or any other habeas corpus provision.‖ S. 185 was reported favorably by the Senate Judiciary Committee without amendment.316 S. 576, the Restoring the Constitution Act of 2007, and its companion bill, H.R. 1415, would have amended the definition of ―unlawful enemy combatant‖ in the MCA, 10 U.S.C. § 948a, to mean an individual who is not a lawful combatant who ―directly participates in hostilities in a zone of active combat against the United States,‖ or who ―planned, authorized, committed, or intentionally aided the terrorist acts on the United States of September 11, 2001‖ or harbored such a person. A status determination by a CSRT or other tribunal would have no longer been dispositive of status under 10 U.S.C. § 948d. The bills also would have expressly restricted the definition of ―unlawful enemy combatant‖ for use in designating individuals as eligible for trial by military commission. They would have repealed 28 U.S.C. § 2241(e), but limited other causes of action related to the prosecution, trial, and decision of a military commission. DTA provisions related to the limited review of status determinations and final decisions of military commissions would have been eliminated, and appeals of military commissions would have been routed to the Court of Appeals for the Armed Forces. H.R. 1415 would have expanded the scope of that review to include questions of fact. With respect to the Geneva Conventions, the bills would have eliminated the MCA provision excluding their invocation as a ―source of rights‖ by defendants (10 U.S.C. § 948b(g)), replacing it with a provision that military commission rules determined to be inconsistent with the Geneva Conventions would have no effect. They would also have added a reference to the effect that the President‘s authority to interpret the Geneva Conventions is subject to congressional oversight and judicial review. Finally, the bills would have provided for expedited challenges to the MCA in the D.C. district court. (Provisions amending the War Crimes Act or military commission procedures are not covered in this report.) S. 1876 would have modified the MCA‘s definition of ―enemy combatant‖ to mean persons other than lawful combatants who have engaged in hostilities against the United States or who have purposefully and materially supported hostilities against the United States (other than hostilities engaged in as a lawful enemy combatant). It also would have excluded from the definition U.S. citizens and persons admitted for permanent residence in the United States, as well as persons taken into custody in the United States. The bill would have provided for jurisdiction in the United States District Court for the District of Columbia to hear habeas petitions by persons determined by the United States to have been properly detained as an enemy combatant or persons detained for more than 90 days without such a 316

S.Rept. 110-90.

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determination. The court would also have been given jurisdiction to hear petitions by persons who have been tried by military commissions after they have exhausted the appeals process. Provisions of S. 1876 that address restrictions on detention and liability are described in the next section. A version of the Habeas Corpus Restoration Act was offered as an amendment to the National Defense Authorization Act, H.R. 1585 (Senate amendment no. 2022), but was not adopted.317 (After President Bush vetoed H.R. 1585, Congress passed a virtually identical bill, H.R. 4846, which became P.L. 110-18 1). H.R. 6247, the ―Boumediene Jurisdiction Correction Act,‖ would have provided ―exclusive original jurisdiction‖ to hear habeas petitions by persons held under military authority at Guantanamo, apparently including U.S. military personnel, to the ―courts established under the Uniform Code of Military Justice and operating in that part of Cuba.‖ Because courtsmartial are the only courts under the UCMJ that operate at the naval base, and these are not standing courts that would be capable of accepting such petitions, perhaps the bill should be interpreted to refer the civilian court created by the UCMJ with jurisdiction over Guantanamo. Under this interpretation, all habeas petitions by persons detained at Guantanamo would have been required to be referred to the Court of Appeals for the Armed Forces (CAAF). Otherwise, it seems habeas petitions for prisoners at Guantanamo would have had to have been referred to a commanding officer with court-martial convening authority there, which would have been unlikely to provide the sort of independent collateral review that the Boumediene Court seemed to view as constitutionally required. H.R. 6705/S. 3401, the Enemy Combatant Detention Review Act of 2008, would have repealed subsection (e) of 28 U.S.C. § 2241. It would have granted the U.S. District Court for the District of Columbia exclusive jurisdiction over, and make it the exclusive venue for consideration of, all habeas corpus applications by or on behalf of enemy combatants held at Guantanamo who are not U.S. citizens or aliens who have been admitted for permanent residence in the United States. All such applications would be consolidated before the Chief Judge of the District Court or a designee for consolidated proceedings and determinations on common questions of fact or law. A habeas corpus application could be filed to challenge the legality of the continued detention of a covered individual, but not any other claims relating to his detention, transfer, treatment, trial, or conditions of confinement, or any other action against the United States. The bills would have required that applications of persons subject to military commission proceedings be stayed until those proceedings were completed. The legislation would also have established procedures for habeas corpus review of detainees, including the scope of permitted discovery, protection of national security information; the allowance of video hearings so that a detainee may participate from Guantanamo; and the admission of evidence (including hearsay).

Bills to Regulate Detention S. 1249 and H.R. 2212 would have required the President to close the detention facilities at Guantanamo Bay and either (1) transfer the detainees to the United States for trial (by military proceeding or Article III court) or for detention as enemy combatants as may be 317

S.Amdt. 2022 to S.Amdt. 2011 to H.R. 1585, 153 CONG. REC. S1 1559 (daily ed. July 19, 2007).

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authorized by Congress; (2) transfer detainees to an appropriate international tribunal operating under U.N. auspices; (3) transfer detainees to their country of citizenship or a different country for further legal process, where adequate assurances are given that the individual will not be subject to torture or cruel, inhuman, or degrading treatment; or (4) release them from any further detention. S. 1876, the ―National Security with Justice Act of 2007,‖ would have limited extraterritorial detention and rendition, modified the definition of ―unlawful enemy combatant‖ for purposes of military commissions, and extended statutory habeas corpus to detainees at Guantanamo. The bill defined ―aggrieved person‖ as an individual who is detained or subjected to rendition overseas by a U.S. officer or agent, except as authorized, excluding any individual who is an international terrorist (a non-U.S. person who ―engages in international terrorism or activities in preparation therefor,‖ and any person (apparently including U.S. persons) who knowingly aids, abets or conspires with such a non-U.S. person in the commission of a terrorist act or activity in preparation of a terrorist act). The bill would have provided an aggrieved person with the right to sue the head of the agency or department responsible for his or her unlawful detention or rendition for damages, including punitive damages. Extraterritorial rendition and detention generally would have been permitted only with proper authorization by order of the Foreign Intelligence Surveillance Court (FISC), a court set up to authorize electronic surveillance of agents of foreign powers in the United States. The bill appears to have excluded certain types of renditions and detentions from these general requirements, including those of persons detained by the United States in Guantanamo on the act‘s date of enactment who were transferred to a foreign legal jurisdiction, as well as the rendition or detention of individuals detained or transferred by the U.S. Armed Forces under circumstances governed by, and in accordance with, the Geneva Conventions. Otherwise, extraterritorial detention would have required the authorization of the President or the Director of National Intelligence based on a certification that the failure to detain that individual ―will result in a risk of imminent death or imminent serious bodily injury to any individual or imminent damage to or destruction of any United States facility‖ or the factual basis exists to demonstrate the individual is an international terrorist and there is reason to believe that the detention or rendition of such person is important to the national security of the United States. Under the bill, an application for detention would have been required to be submitted to the FISC within 72 hours in order to detain the person. H.R. 6705/S. 3401 would have expressly authorized the detention of persons who have been engaged in hostilities or who have purposefully and materially supported hostilities against the United States or its co-belligerents on behalf of the Taliban, Al Qaeda, or associated forces. It would have barred a court from releasing a person into the United States who has been designated as an ―enemy combatant‖ by a CSRT (other than a U.S. citizen or an alien admitted into the U.S. for permanent residence) and also have made such persons ineligible for a entry visa or any immigration status, subject to the waiver of the President. If a court were to grant a detainee‘s habeas application and order his release, he would be placed in the custody of the Secretary of Homeland Security for transfer to the detainee‘s country of citizenship or a third country.

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Chapter 4

SUMMARY OF THE WHITE HOUSE REVIEW OF THE DECEMBER 25, 2009 ATTEMPTED TERRORIST ATTACK Office of the Press Secretary The White House

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Office of the Press Secretary For Immediate Release January 07, 2010 White House Review Summary Regarding 12/25/2009 Attempted Terrorist Attack SUBJECT: Summary of the White House Review of the December 25, 2009 Attempted Terrorist Attack On December 25, 2009 a Nigerian national, Umar Farouk Abdulmutallab attempted to detonate an explosive device while onboard flight 253 from Amsterdam to Detroit. The device did not explode, but instead ignited, injuring Mr. Abdulmutallab and two other passengers. The flight crew restrained Mr. Abdulmutallab and the plane safely landed. Mr. Abdulmutallab was taken into custody by Customs and Border Protection (CBP) and later was questioned by the Federal Bureau ofInvestigation (FBI). Mr. Abdulmutallab was not on the U.S. Government's (USG) terrorist watchlist, but was known to the U.S. Intelligence Community (IC).

BACKGROUND Following the December 25, 2009 attempt to bring down the flight by detonating an explosive device onboard flight 253, the President directed that Assistant to the President for Homeland Security and Counterterrorism John Brennan conduct a complete review of the

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terrorist watchlisting system and directed that key departments and agencies provide input to this review. What follows is a summary of this preliminary report. First, it should be noted that the work by America's counterterrorism (CT) community has had many successes since 9111 that should be applauded. Our ability to protect the U.S. Homeland against terrorist attacks is only as good as the information and analysis that drives and facilitates disruption efforts. The thorough analysis of large volumes of information has enabled a variety of departments and agencies to take action to prevent attacks. On a great number of occasions since 9111, many of which the American people will never know about, the tremendous, hardworking corps of analysts across the CT community did just that, working day and night to track terrorist threats and run down possible leads in order to keep their fellow Americans safe. Yet, as the amount of information continues to grow, the challenge to bring disparate pieces of information - about individuals, groups, and vague plots - together to form a clear picture about the intentions of our adversaries grows as well. These actions, informed by the excellent analytic work of the very same individuals and structure that is under review, have saved lives. Unfortunately, despite several opportunities that might have allowed the CT community to put these pieces together in this case, and despite the tireless effort and best intentions of individuals at every level of the CT community, that was not done. As a result, the recent events highlight our need to look for ways to constantly improve and assist our CT analysts, who are at the forefront of providing warning of terrorist attacks and keeping Americans safe.

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This report reflects preliminary findings to facilitate immediate corrective action. Neither the report nor its findings obviate the need for continued review and analysis to ensure that we have the fullest possible understanding of the systemic problems that led to the attempted terrorist attack on December 25,2009. Note further that sensitive intelligence data was removed from this public report to protect sources and methods.

FINDINGS The preliminary White House review of the events that led to the attempted December 25 attack highlights human errors and a series of systematic breakdowns failed to stop Umar Farouk Abdulmutallab before he was able to detonate an explosive device onboard flight 253. The most significant failures and shortcomings that led to the attempted terror attack fall into three broad categories: 





A failure of intelligence analysis, whereby the CT community failed before December 25 to identify, correlate, and fuse into a coherent story all of the discrete pieces of intelligence held by the u.s. Government related to an emerging terrorist plot against the U.S. Homeland organized by al Qaida in the Arabian Peninsula (AQAP) and to Mr. Abdulmutallab, the individual terrorist; A failure within the CT community, starting with established rules and protocols, to assign responsibility and accountability for follow up of high priority threat streams, run down all leads, and track them through to completion; and Shortcomings of the watchlisting system, whereby the CT community failed to identify intelligence within u.S. government holdings that would have allowed Mr.

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Abdulmutallab to be watchlisted, and potentially prevented from boarding an aircraft bound for the United States. The most significant findings of our preliminary review are: 

  

The U.S. Government had sufficient information prior to the attempted December 25 attack to have potentially disrupted the AQAP plot-i.e., by identifying Mr. Abdulmutallab as a likely operative of AQAP and potentially preventing him from boarding flight 253. The Intelligence Community leadership did not increase analytic resources working on the full AQAP threat. The watchlisting system is not broken but needs to be strengthened and improved, as evidenced by the failure to add Mr. Abdulmutallab to the No Fly watchlist. A reorganization of the intelligence or broader counterterrorism community is not required to address problems that surfaced in the review, a fact made clear by countless other successful efforts to thwart ongoing plots.

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FAILURE TO "CONNECT THE DOTS" It is important to note that the fundamental problems identified in this preliminary review are different from those identified in the wake of the 9111 attacks. Previously, there were formidable barriers to information sharing among departments and agencies--tied to firmly entrenched patterns of bureaucratic behavior as well as the absence of a single component that fuses expertise, information technology (IT) networks, and datasets-that have now, 8 years later, largely been overcome. An understanding of the responsibilities of different analytic components of the CT community is critical to identifying what went wrong and how best to fix it. The National Counterterrorism Center (NCTC) was created by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) to be "the primary organization in the U.S. government for analyzing and integrating all intelligence possessed or acquired by the U.S. government pertaining to terrorism and counterterrorism 2." Intelligence Community guidance in 2006 further defined counterterrorism analytic responsibilities and tasked NCTC with the primary role within the Intelligence Community for bringing together and assessing all-source intelligence to enable a full understanding of and proper response to particular terrorist threat streams. Additionally, the Director of NCTC is in charge of the DNI Homeland Threat Task Force, whose mission is to examine threats to the U.S. Homeland from al-Qa'ida, its allies, and homegrown violent extremists. Notwithstanding NCTC's central role in producing terrorism analysis, CIA maintains the responsibility and resource capability to "correlate and evaluate intelligence related to national security and provide appropriate dissemination of such intelligence. ,,3 CIA's responsibility for conducting all-source analysis in the area of counterterrorism is focused on supporting its operations overseas, as well as informing its leadership of terrorist threats and terrorist targets overseas. Therefore, both agencies - NCTC and CIA - have a role to play in conducting (and a responsibility to carry out) all-source analysis to identify operatives and uncover specific plots like the attempted December 25 attack.

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The information available to the CT community over the last several months - which included pieces of information about Mr. Abdulmutallab, information about AQAP and its plans, and information about an individual now believed to be Mr. Abdulmutallab and his association with AQAP and its attack planning - was obtained by several agencies. Though all of that information was available to all-source analysts at the CIA and the NCTC prior to the attempted attack, the dots were never connected, and as a result, the problem appears to be more about a component failure to "connect the dots," rather than a lack of information sharing. The information that was available to analysts, as is usually the case, was fragmentary and embedded in a large volume of other data. Though the consumer base and operational capabilities of CIA and NCTC are somewhat different, the intentional redundancy in the system should have added an additional layer of protection in uncovering a plot like the failed attack on December 25. However, in both cases, the mission to "connect the dots" did not produce the result that, in hindsight, it could have connecting identifying information about Mr. Abdulmutallab with fragments of information about his association with AQAP and the group's intention of attacking the U.S. 250 U.S.c. § 404o(d)(l). 350 U.S.C. § 403-4a(d)(2). 

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



The majority of these discreet pieces of intelligence were gathered between midOctober and late December 2009. For example, on November 18, Mr. Abdulmutallab's father met with U.S. Embassy officers in Abuja, Nigeria, to discuss his concerns that his son may have come under the influence of unidentified extremists, and had planned to travel to Yemen. Though this information alone could not predict Mr. Abdulmutallab's eventual involvement in the attempted 25 December attack, it provided an opportunity to link information on him with earlier intelligence reports that contained fragmentary information. Analytic focus during December was on the imminent AQAP attacks on Americans and American interests in Yemen, and on supporting CT efforts in Yemen.

Despite these opportunities and multiple intelligence products that noted the threat AQAP could pose to the Homeland, the different pieces of the puzzle were never brought together in this casethe dots were never connected, and, as a result, steps to disrupt the plot involving Mr. Abdulmutallab were not taken prior to his boarding of the airplane with an explosive device and attempting to detonate it in-flight.

BREAKDOWN OF ACCOUNTABILITY FOR THREAT WARNING AND RESPONSE Intelligence is not an end to itself, nor are analytic products-they are designed to provide senior government leaders with the necessary information to make key decisions, but also to trigger action, including further collection, operational steps, and investigative adjustments. As noted above, NCTC and CIA have the primary and overlapping responsibility to conduct all-source analysis on terrorism. As with this intentional analytic redundancy, the CT

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community also has multiple and overlapping warning systems to ensure that departments and agencies are kept fully aware of ongoing threat streams. NCTC is the primary organization that provides situational awareness to the CT community of ongoing terrorist threats and events, including through several daily written products that summarize current threat reporting for a broad audience, as well as meetings and video teleconferences that provide the opportunity for the CT community to engage in a real-time manner on this information. While the threat warning system involves analysis, it also extends to other elements within the CT community that should be responsible for following up and acting on leads as a particular threat situation develops. In this context, the preliminary review suggests that the overlapping layers of protection within the CT community failed to track this threat in a manner sufficient to ensure all leads were followed and acted upon to conclusion. In addition, the White House and the National Security Staff failed to identify this gap ahead of time. No single component of the CT community assumed responsibility for the threat reporting and followed it through by ensuring that all necessary steps were taken to disrupt the threat. This argues that a process is needed to track terrorist threat reporting to ensure that departments and agencies are held accountable for running down all leads associated with high visibility and high priority plotting efforts, in particular against the U.S. Homeland.

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Failure to Watchlist Although Umar Farouk Abdulmutallab was included in the Terrorist Identities Datamart Environment (TIDE), the failure to include Mr. Abdulmutallab in a watchlist is part of the overall systemic failure. Pursuant to the IRTPA, NCTC serves "as the central and shared knowledge bank on known and suspected terrorists and international terror groups.,,4 As such, NCTC consolidates all information on known and suspected international terrorists in the Terrorist Identities Datarnart Environment. NCTC then makes this data available to the FBI-led Terrorist Screening Center (TSC), which reviews nominations for inclusion in the master watchlist called the Terrorist Screening Database (TSDB). The TSC provides relevant extracts to each organization with a screening mission. Hindsight suggests that the evaluation by watchlisting personnel of the information contained in the State cable nominating Mr. Abdulmutallab did not meet the minimum derogatory standard to watchlist. Watchlisting would have required all of the available information to be fused so that the derogatory information would have been sufficient to support nomination to be watchlisted in the Terrorist Screening Database. Watchlist personnel had access to additional derogatory information in databases that could have been connected to Mr. Abdulmutallab, but that access did not result in them uncovering the biographic information that would have been necessary for placement on the watchlist. Ultimately, placement on the No FIy List would have been required to keep Mr. Abdulmutallab off the plane inbound for the U.S. Homeland.

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VISA ISSUE Mr. Abdulmutallab possessed a U.S. visa, but this fact was not correlated with the concerns of Mr. Abdulmutallab's father about Mr. Abdulmutallab's potential radicalization. A misspelling of Mr. Abdulmutallab's name initially resulted in the State Department believing he did not have a valid U.S. visa. A determination to revoke his visa, however, would have only occurred ifthere had been a successful integration of intelligence by the CT community, resulting in his being watchlisted.

KEY FINDINGS EMERGING FROM PRELIMINARY INQUIRY AND REVIEW 



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











The U.S. government had sufficient information to have uncovered and potentially disrupted the December 25 attack-including by placing Mr. Abdulmutallab on the No Fly list -- but analysts within the CT community failed to connect the dots that could have identified and warned of the specific threat. The preponderance of the intelligence related to this plot was available broadly to the Intelligence Community. NCTC and CIA are empowered to collate and assess all-source intelligence on the CT threat, but all-source analysts highlighted largely the evolving "strategic threat" AQAP posed to the West, and the U.S. Homeland specifically, in finished intelligence products. In addition, some of the improvised explosive device tactics AQAP might use against U.S. interests were highlighted in finished intelligence products. The CT community failed to follow-up further on this "strategic warning" by moving aggressively to further identify and correlate critical indicators of AQAP's threat to the U.S. Homeland with the full range of analytic tools and expertise that it uses in tracking other plots aimed at the U.S. Homeland. NCTC and CIA personnel who are responsible for watchlisting did not search all available databases to uncover additional derogatory information that could have been correlated with Mr. Abdulmutallab. A series of human errors occurred----delayed dissemination of a finished intelligence report and what appears to be incomplete/faulty database searches on Mr. Abdulmutallab's name and identifying information. "Information sharing" does not appear to have contributed to this intelligence failure; relevant all-source analysts as well as watchlisting personnel who needed this information were not prevented from accessing it. Information technology within the CT community did not sufficiently enable the correlation of data that would have enabled analysts to highlight the relevant threat information. There was not a comprehensive or functioning process for tracking terrorist threat reporting and actions taken such that departments and agencies are held accountable for running down all leads associated with high visibility and high priority plotting efforts undertaken by alQa'ida and its allies, in particular against the U.S. Homeland.

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Finally, we must review and determine the ongoing suitability of legacy standards and protocols in effect across the CT community, including criteria for watch lists, protocols for secondary screening, visa suspension and revocation criteria, and business processes across the government.

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450 U.S.C. § 404o(d)(6).

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Chapter 5

OCEAN PIRACY AND ITS IMPACT ON INSURANCE Rawle O. King*

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SUMMARY Many Members of 111th Congress are concerned about the sharp rise in pirate attacks in the strategic waterways in the Gulf of Aden off the East coast of Africa. The hijacking of a Saudi Arabia-owned oil tanker, Sirius Star, off the coast of Kenya on November 15, 2008, by pirates, and its release after a $3 million ransom payment on January 8, 2009, was another in a series of seizures and releases that have focused worldwide attention on economic and humanitarian threats posed by pirates to the global seafaring community and the smooth flow of international trade. Given the sharp increase in the number of pirate attacks, the cost of transporting cargo in international waters could rise dramatically because of the sharp increase in ocean marine insurance rates for ships transiting the Gulf of Aden. Commercial insurers, for example, could require a special ―war risk‖ insurance premium costing an additional ten of thousands of dollars a day. These additional costs could adversely impact international trade during the current global economic slowdown. In addition to proposals for military deterrence and diplomatic engagements, policymakers may elect to consider adjustments to the federal statute (Title XII of the Merchant Marine Act of 1936, as amended) that authorizes the federal government to underwrite marine war risk insurance in circumstances such as piracy. Title XII, administered by the U.S. Department of Transportation‘s Maritime Administration, authorizes the federal government to act as an insurer or reinsurer of last resort to facilitate waterborne commerce should private ocean marine insurance markets not be able to ensure that financial losses due to war risks (and piracy) will be largely covered. Policymakers may also elect to maintain the status quo on this statutory authority. The property and casualty insurance industry policyholder surplus is calculated to be approximately $505 billion (as of June 2008). Vessel hull and war risk premiums in the U.S. market paid to insurers totaled approximately $350 million in 2007, and the total value of cargo insurance premiums paid in that year was approximately $833 million, according to *

Corresponding address: Email : [email protected]

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industry data. Some may contend, as a result, that the insurance industry appears to be financially capable of handling U.S. exposure to the current piracy threat and that the existing policy ―backstop‖ will be adequate.

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INTRODUCTION In the wake of the unprecedented number of pirate attacks on merchant ships off the Coast of East Africa in 2008, including the hijacking of a Saudi Arabia oil tanker (Sirius Star) carrying $100 million worth of crude, the global shipping industry and its insurance companies have called on governments to take immediate action to stop piracy in the Gulf of Aden and Indian Ocean.1 Public attention has now focused on suspected Somali pirates who use sophisticated vessels and high-powered weapons to take control of large ocean-going ships carrying valuable cargoes. When pirates seize the ships they usually hold the crew hostage and demand money for the return of the crew, tanker and its contents (cargo). There are no reports of cruelty or destruction of vessels or the cargo. Piracy in the international waters off the East coast of Africa is arguably becoming viewed by the shippers, insurers, and pirates themselves as a well-established practice that functions in a business model that includes precise, well-established calculations of the amount to be paid as a ransom and professional assurances of the safety of crew, ship and cargo while negotiations proceed. Shippers generally purchase ocean marine insurance to protect against a financial loss or injury to their crew, cargo and the ship itself. Still, pirates pose an economic threat to the global seafaring community and the smooth flow of international trade by commercial shipowners and operators. Also, the cost of transporting cargo could rise dramatically because of the sharp increase in commercial shipping insurance rates for ships transiting the area. By one estimate, due to piracy in the Gulf of Aden, the cost of insuring a container went from $900 in 2007 to $9,000 in the closing months of 2008.2 These increases could trigger further rises in later phases of manufacturing and production.

THE CURRENT SITUATION Piracy Events and Impacts The Gulf of Aden was identified as an area of concern by Lloyd‘s Market Association (LMA) in May 2008.3 The Gulf of Aden is considered a strategically important international waterway that carries a third of the world‘s crude oil. Over 20,000 vessels pass through this area each year. The Gulf of Aden lies between Yemen and Somalia and connects the Indian Ocean to the Red Sea and the Suez Canal. Other areas of the world that are viewed at risk for ocean piracy include Indonesia, Nigeria, Bangladesh and India.

1

Piracy may be defined as an act of violence at sea by passengers who mutiny and rioters who attack the ship from a boat launched from the shore. 2 See Maritime Reporter and Engineering News, ―American Officials Address Piracy,‖ located at http://www4. marinelink.com/Story/American-Officials-Address-Piracy-213633.html. 3 The Lloyd‘s Market Association (LMA) is the representative voice of the Lloyd‘s underwriting community.

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Ocean marine insurers have urged shippers to stay at least 200 miles off the coast. On November 17, 2008, the Sirius Star, a Saudi-owned crude oil tanker, was seized in the Indian Ocean by suspected Somali pirates 450 nautical miles off the coast of Kenya in the Indian Ocean. The vessel remains anchored by the pirates near Harardhere, The pirates are now in negotiation with the shipper for ransom.4 The seizure of the Star was an unprecedented attack given its distance from shore (450 nautical miles) in the Indian Ocean and the size of its target (supertanker) compared to the majority of recent attacks. Shippers believe they can avoid the pirates by sailing farther offshore, but this means more time at sea and extra costs. As a result, ocean marine insurers are considering enlarging the war risk zone, a decision that would escalate the cost of shipping. Part of the higher cost would be the extra time and fuel consumed by going via the Cape of Good Hope rather than the Suez Canal. Also, insurers could require special ―war risk‖ insurance costing tens of thousands of dollars more per day to cover travel across a much greater area of water.5 Merchant shippers would also have to incur additional expenses to hire a security force to protect their vessels. One estimate of the added cost for security ranges as high as $60,000 per trip.6 On November 19, 2008, Pentagon officials released statistics showing that in 2008, there had been 95 reports of piracy attacks on merchant vessels in the Gulf of Aden, with 39 of these resulting in the capture of vessels.7 The U.S. government has responded militarily to such piracy by sending four U.S. Navy warships from the Fifth Fleet in Bahrain to the Gulf of Aden off the coast of Somalia. Officials have also expressed an interest in working through the United Nations to encourage Somalia to curb piracy activities operating from its shores; an outcome that would be difficult to achieve since Somalia has no functioning government. The European Union sent a naval fleet to escort ships in the region. The U.S. warships have joined other warships from different countries such as Russia, China and Iran now patrolling the area.8 According to Pentagon officials, many attacks were thwarted in December 2008 by the presence of military forces or by defensive measures taken by ship captains. U.S. military officials are encouraging merchants to sail with armed guards and to travel within lanes now patrolled by U.S. warships.

Insurance Industry Effects Despite the increased threats and estimates of rising costs, the impact on the insurance industry appears negligible. Given the size of the property and casualty insurance industry‘s policyholder‘s surplus of about $505 billion, as of June 2008, and the relatively low total cost of vessel hull and war risk premiums of approximately $350 million and total cargo premiums written by U.S. marine insurance market in 2007 of $833 million, it appears that 4

According to media reports, the Sirius Star is a Liberian-flagged crude tanker owned by Saudi Aramco, the Saudi Arabia‘s state oil company, and operated by Vela International, an Aramco subsidiary. 5 John W. Miller, The Wall Street Journal, ―Piracy Spurs Threats to Shipping Cost,‖ November 19, 2008, p. A. 12. 6 Ibid. 7 See Maritime Reporter and Engineering News, ―American Officials Address Piracy,‖ located at http://www4.marinelink.com/Story/American-Officials-Address-Piracy-213633.html 8 Thom Shanker, ―U.S. Urges Merchant Ships to Try Steps to Foil Pirates,‖ New York Times, November 20, 2008, p. 10.

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the insurance industry would be financially capable of handling U.S. exposures to acts of piracy in international waterborne commerce.

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THE ECONOMIC COSTS AND CONSEQUENCES OF PIRACY In May 2008, insurance underwriters at the Lloyds of London designated the Gulf of Aden a ―war-risk‖ zone subject to a special insurance premium. London-based ocean marine insurers have raised rates for ships making the voyage through the Gulf of Aden and the Suez canal. These levels of increase can only be estimated because of the competitive nature of the ocean marine insurance business. One group of London insurance brokers and underwriters estimates extra premiums at $10,000 to $20,000 per trip through the Gulf.9 U.S. rates, however, apparently have not changed. According to representatives of the American Institute of Marine Underwriters (AIMU), U.S. ocean marine insurers have not had to pay ransom for any act of piracy; therefore, they say, hull and cargo insurance rates for vessels leaving the United States remain the same. The global shipping industry is most concerned about vessels that carry oil, chemicals, coal, iron ore, wheat and other commodities, because these vessels tend to be more vulnerable to pirate attacks than container vessels that carry manufactured goods. Container vessels are considered more difficult to seize by pirates because they ride higher in the water and are more difficult to board and seize from a small boat. The increase in pirate attacks is occurring at a time when the shipping industry is expressing concerns about its financial health. One development is that the frequency of hiring dry bulk carriers, a key industry component, has decreased; the ―hire‖ rates have dropped over 90% in the last six months.10 (In some cases, the hire rate has dropped because the financial industry has stopped financing trade due to the global economic crisis.)11 In addition, many ship owners and other key industry participants apparently face severe losses from the global financial market crisis. Some major dry bulk shippers lost money speculating on the market in shipping derivatives that offered potential for strong investment returns.12 Shipping derivatives were developed to manage risk stemming from fluctuations in freight rates, vessel prices, interest rates, and foreign exchange rates, more effectively, in a cheaper and more flexible manner. Many shippers made derivative bets mistakenly on the direction of dry bulk rates during 2008. With respect to the piracy issue, besides the Sirius Star, there are an estimated 14 other ships and their crews currently being held by pirates.13 London-based shipping firms usually are, at times, prepared to pay ransom because the demanded sums are considered low, ranging 9

Piracy Threat Hikes Insurance Premiums: Insurers to Raise Rates in High-Risk Areas After Piracy Heists Off SomaliCoast, November 20, 2008, located at http://www.msnbc .msn.com/id/278262. 10 Robert Wright, ―Shipping in Crisis: Sector Must Navigate Rates Challenge,‖ Financial Times, November 19, 2008, p. 18. 11 Ibid. 12 A derivative is a financial instrument whose price is dependent upon or derived from one or more underlying assets. The derivative itself is a contract between two or more parties. Its value is determined by fluctuations in the underlying asset. The most common nderlying assets include stocks, bonds, commodities, currencies, interest rates and market indexes. Most derivatives are characterized by high leverage. 13 The Associate Press, ―Pirates Open Fire on U.S. Cruise Ship,‖ December 2, 2008, located at http://www. msnbc.msn.com/id/28011013/.

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from $500,000 to $2 million, compared with the value of the ships and its cargo. Such payments are reimbursed because the hull insurance policies issued in London explicitly cover the peril of piracy.14 (Hull insurance forms used by American insurers generally exclude coverage for the peril of piracy.) Most of the 18 vessels, however, have cargo valued low enough that shippers likely will not pay the ransom demanded by the pirates; the ransom demanded exceeds the value of the cargo. One exception is a Ukrainian freighter currently being held by pirates, whose cargo includes military tanks, rocket-propelled grenades and antiaircraft guns. According to media reports, a deal has been reached for the ship‘s owners to pay an undisclosed ransom in exchange for the return of the ship.15 In this case questions of public safety and threats of civil instability were considered along with financial calculations.

BASICS OF MARINE INSURANCE Marine insurance is coverage for goods in transit, and for the commercial vehicles that transport them, on water and on land. Marine insurance is divided into inland marine and ocean marine insurance. Inland marine insurance covers transportation-related or transportable property on land and air transportation as well as bridges, tunnels, and other modes. It is insurance for shipment that does not involve ocean transport. American ocean marine insurance provides coverage for vessels and their cargo on the high seas, lakes or inland waterways. There are four basic types of ocean marine insurance: 

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  

hull insurance that covers physical risk to the ship, like grounding or damage from heavy seas, collision, sinking, capsizing, being stranded, fire, piracy, and jettisoning cargo to save other property; cargo insurance that covers the goods transported in the ship; hull war risk insurance (including automatic termination and cancellation provisions in the event of war); and protection and indemnity (P&I) which covers liability involving the crew, docks and piers. Ship owners can purchase separate kidnap and ransom insurance for crew members.16

Hull Insurance Hull insurance primarily covers physical damage to vessels (hull) and the machinery and equipment. The insurance also covers collision liability associated with damage to other vessels and their cargoes resulting from collision with the insured vessel. The hull insurance policy indemnifies the insured shipowner for these damages. 14

Robert F. Worth, ―Pirates Seize Saudi Tanker off Kenya: Ship Called the Largest Ever Hijacked,‖ New York Times, November 18, 2008, p. A. 6. 15 Jeffrey Gettleman, Mediator Says Ransom Deal Has Been Reached for Pirated Ukrainian Freighter, The New York Times, December 1, 2008, p. 16 In addition to hull, cargo, war risk and P&I insurance, other marine insurance polices are available to meet special needs. These policies include freight insurance, loss of charter hire insurance, builders risk insurance, and ship repairers legal liability policies. These policies are not at issue in the piracy threat.

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Most American shippers use the hull insurance form called American Institute Hull Clauses (AIHC), developed by the American Institute of Marine Underwriters, a trade association for marine insurers.17 The AIHC is used primarily for oceangoing cargo and passenger vessels. Another form, named the Taylor form, is often used for insuring vessels that traverse American rivers and coastal waters. In addition, it is customary for some insurance brokers to develop their own marine forms for submission to underwriters. This is possible because there is no standard form of marine insurance policy recognized by law in the United States. American ship owners, operators, and merchants may also purchase marine insurance overseas, especially through the London market, which uses its own form. The London Institute hull form (known as the 1983 clauses or ―Institute Time Clauses Hulls‖) explicitly covers loss or damage caused by piracy (page 58 of the form).18 There is no exclusion. In order to provide uniformity, Great Britain codified its marine insurance law in the landmark Marine Insurance Act of 1906. This act established the Lloyd‘s form of policy as an example but is not a required policy form. The approach developed in Great Britain is to provide constant rules of interpretation so that there would be certainty of meaning and stability in ocean marine insurance transactions. With respect to coverage for acts of piracy, it is instructive to note that the AIHC includes piracy as a named peril (on line 71) but excludes piracy (on line 245) as an insured peril in the event of war. Recognizing the war risk exclusion, U.S. shippers have the option of purchasing a separate war risk policy, called the American Institute Hull War Risk and Strikes Clauses which effectively covers the excluded war perils, including piracy.19 However, even under the hull war risk insurance policy, the marine insurer retains the right to cancel the policy at any time. In the event the private insurer‘s war risk insurance is cancelled, the U.S. Department of Transportation‘s Maritime Administration‘s marine war risk insurance and reinsurance federal backstop automatically provides insurance and/or reinsurance to the ocean marine shipping industry (see ―War Risk Insurance‖ discussion below).

Ocean Cargo Insurance Ocean cargo insurance policies are written as separate coverage from hull insurance because merchants typically ship cargo via vessels owned by others. Ocean cargo insurance may be classified in two ways: policies issued to cover river and harbor cargo, and those issued to cover international trade that occurs on the oceans and seas. Cargo policies may also be classified by whether they are designed to cover a particular voyage, a specific time period, or a commodity such as grain, cotton, iron ore, or whether they are adapted to cover cargo general in its nature. Cargo policies may be issued for a single cargo risk (special or single risk cargo policies), and those that cover automatically all shipments of an insured (open or floating policies), subject to cancellation with 30 days‘ notice. 17

See American Institute of Marine Underwriting, ―American Institute Hull Clauses,‖ located at http://www. aimu.org./aimuforms/7.pdf. 18 See Institute Time Clauses (Hulls), located at http://alterisk.ru/download/CL280.pdf. 19 See American Institute of Marine Underwriting, “American Institute Hull War Risk and Strikes Clauses,‖ located at http://www.aimu.org./aimuforms/87B-108.pdf.

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War Risk Insurance Hull insurance usually does not cover the risk of a vessel sailing into a war zone, but such insurance can be purchased separately as ―war risk insurance.‖ War risk insurance is special coverage on cargo in transcontinental ships that protects against the risk of confiscation by a government in wartime. War risk insurance coverage protects, at an additional premium, against the danger of loss in a war zone. The war risk zones are established by the Londonbased Lloyd‘s Market Association‘s Joint War Committee (JWC), which has recently included the Gulf of Aden as a war risk area due to piracy.20 (About a decade ago, the Malacca Straits were similarly designated a war risk area due to piracy.) The JWC represents the interests of underwriters writing war and related risks within the London ocean marine insurance market. The U.S. Department of Transportation‘s Maritime Administration‘s (MARAD) marine war risk insurance program under Title XII, Merchant Marine Act, 1936, as amended, includes a provision of vessel war risk insurance, as follows.21

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The Secretary (of Transportation), with the approval of the President, and after such consultation with interested agencies of the Government as the President may require, may provide insurance and reinsurance against loss or damage by war risks in the manner and to the extent provided in this subchapter, whenever it appears to the Secretary that such insurance adequate for the needs of the water-borne commerce of the United States cannot be obtained on reasonable terms and conditions from companies authorized to do an insurance 22 business in a State of the United States.

During times of national emergency, at the request of the Department of Defense, the MARAD underwrites marine insurance risk insurance for DOD-chartered vessels during national emergency. Commercial shippers can obtain war risk insurance coverage from MARAD.

Protection and Indemnity Insurance The hull insurance policy, even with the collision clause, does not protect the vessel owner against liability for damage to: cargo in the custody of the insured; injury to passengers, crew members, or laborers handling cargo; and damage to docks, piers, and other fixed objects. Vessel owners typically purchase a Protection and Indemnity (P&I) marine insurance policy to cover these risks from shipowners‘ clubs that form to mutually insure these risks. In the 19th century, shipowners banded together in mutual underwriting clubs to insure liability risk amongst themselves. These clubs are still in existence today. Members of the clubs are generally levied an initial sum that is used to purchase reinsurance to cover their 20

For information on the Joint War Committee, see, http://www.lmalloyds.com/AM/ Template.cfm?Section=Joint_War1&Template=/TaggedPage/TaggedPageDisplay. cfm&TPLID=3& ContentID=3888. 21 Merchant Marine Act, 1936, 46 U.S.C. App. 1282, 64 Stat. 773. 22 The White House, ―Presidential Memo on Marine War Risk Insurance Coverage,‖ December 12, 2001, located at http://www.whitehouse.gov/news/releases/2001 /12/print/ 20011214-9.html.

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mutual liability risks. If a club experiences unfavorable losses, the members are assessed a supplementary premium. The club attempts to build up loss reserves.

OPTIONS FOR CONGRESS

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Federal policy (Title XII of the Merchant Marine Act of 1936, as amended) authorizes the federal government to administer a maritime war risk insurance program that insures or reinsures, as a last resort, ocean-going commerce should private ocean marine insurance markets prove insufficient. Available statistics suggest that industry resources are adequate, given the property and casualty insurance industry surplus and the relatively low cost of insurance premiums. As a result, despite the increased activity of pirates, some may contend that Congress does not need to amend the existing federal insurance statutory construct. Others, however, may urge increased levels of oversight and investigation into the situation in an effort to ensure that international commerce remains stabilized, particularly at a time of global economic crisis.

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Chapter 6

LATIN AMERICA: TERRORISM ISSUES Mark P. Sullivan*

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SUMMARY Since the September 2001 terrorist attacks on New York and Washington, U.S. attention to terrorism in Latin America has intensified, with an increase in bilateral and regional cooperation. In its April 2008 Country Reports on Terrorism, the State Department highlighted threats in Colombia and the tri-border area of Argentina, Brazil, and Paraguay. Cuba has remained on the State Department‘s list of state sponsors of terrorism since 1982, which triggers a number of economic sanctions. U.S. officials have expressed concerns over the past several years about Venezuela‘s lack of cooperation on antiterrorism efforts, its relations with Cuba and Iran, and President Hugo Chávez‘s sympathetic statements for Colombian terrorist groups. In May 2008, for the third year in a row, the Department of State, pursuant to Arms Export Control Act, included Venezuela on the annual list of countries not cooperating on antiterrorism efforts. In the 110th Congress, the House approved H.Con.Res. 188 and H.Con.Res. 385, both condemning the 1994 bombing of the Argentine-Israeli Mutual Association in Buenos Aires, and H.Res. 435, expressing concern over the emerging national security implications of Iran‘s efforts to expand its influence in Latin America, and emphasizing the importance of eliminating Hezbollah‘s financial network in the tri-border area. The Senate approved S.Con.Res. 53, condemning the hostage-taking of three U.S. citizens for over four years by the Revolutionary Armed Forces of Colombia (FARC). To date in the 111th Congress, one legislative initiative has been introduced, H.R. 375 (RosLehtinen), with the goal of bolstering capacity and cooperation of Western Hemisphere countries to counter current and emerging threats, promoting Western Hemisphere cooperation to prevent the proliferation of nuclear, chemical, and biological weapons, and securing universal adherence to agreements regarding nuclear proliferation. For additional information, see CRS Report R40193, Cuba: Issues for the 111th Congress, and CRS Report RL32488, Venezuela: Political Conditions and U.S. Policy. *

Email: [email protected]

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TERRORISM IN LATIN AMERICA: U.S. CONCERNS

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Over the years, the United States has been concerned about threats to Latin American and Caribbean nations from various terrorist or insurgent groups that have attempted to influence or overthrow elected governments. Although Latin America has not been the focal point in the war on terrorism, countries in the region have struggled with domestic terrorism for decades and international terrorist groups have at times used the region as a battleground to advance their causes. The State Department‘s annual Country Reports on Terrorism highlights U.S. concerns about terrorist threats around the world, including in Latin America. The April 2008 report states that terrorism in the region was primarily perpetrated by terrorist organizations in Colombia and by the remnants of radical leftist Andean groups. According to the report, ―there were no known operational cells of Islamic terrorists‖ in the region, but it maintained that ―pockets of ideological supporters and facilitators in South America and the Caribbean lent financial, logistical, and moral support to terrorist groups in the Middle East.‖ Overall, however, the report maintained that the threat of a transnational terrorist attack remained low for most countries in the hemisphere. The report also stated that regional governments ―took modest steps to improve their counterterrorism capabilities and tighten border security‖ but that progress was limited by ―corruption, weak government institutions, ineffective or lack of interagency cooperation, weak or non-existent legislation, and reluctance to allocate sufficient resources.‖ The report lauded counterterrorism efforts in Argentina, Panama, Paraguay, Mexico, and El Salvador, and noted that Caribbean and Central American countries took steps to improve their border controls and to secure key infrastructure. It also noted that most hemispheric nations had solid cooperation with the United States on terrorism issues, especially at the operational level, with excellent intelligence, law enforcement, and legal assistance relations.

Colombia Colombia has three terrorist groups that have been designated by the Secretary of State as Foreign Terrorist Organizations (FTOs): the leftist Revolutionary Armed Forces of Colombia (FARC), the leftist National Liberation Army (ELN), and remaining elements of the rightist paramilitary United Self-Defense Forces of Colombia (AUC). With more than 32,000 members demobilized, the AUC remained inactive as a formal organization, but some AUC renegades continued to engage in criminal activities, mostly drug trafficking, according to the terrorism report. The ELN, which had dwindling memberships and reduced offensive capability, has participated in peace talks with the Colombian government, but no agreements have been reached. The FARC has been weakened by the government‘s military campaign against it, including the killings of several FARC commanders in 2007 and the group‘s second in command, Raúl Reyes, during a Colombian government raid on a FARC camp in Ecuador on March 1, 2008. Moreover, in May 2008, the FARC admitted that its long-time leader, Manuel Marulanda, had died of a heart attack in March. Nevertheless, the group has continued terrorist, kidnapping for profit, and narcotrafficking activities, including murders of elected officials and attacks against military and civilian targets in urban and rural areas. According

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to the State Department terrorism report, both the FARC and the ELN often crossed into Venezuelan territory for rest and resupply, and the FARC regularly used Ecuadorian territory for rest, recuperation, resupply, and training. On December 19, 2007, the Senate approved S.Con.Res. 53 (Nelson, Bill) condemning the holding of three U.S. citizens by the FARC since February 2003– Thomas Howes, Keith Stansell, and Marc Gonsalves – and calling for their immediate and unconditional release. (Also see CRS Report RL32250, Colombia: Issues for Congress)

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Venezuela The State Department‘s terrorism report stated that ―it remained unclear to what extent the Venezuelan government provided support to Colombian terrorist organizations,‖ but information on captured computer files from Colombia‘s March 2008 raid of a FARC camp in Ecuador raised questions about alleged support of the FARC by the Venezuelan government of Hugo Chávez. Since May 2006, the Secretary of State has made an annual determination that Venezuela was not ―cooperating fully with United States antiterrorism efforts‖ pursuant to Section 40A of the Arms Export Control Act (AECA). As a result, the United States imposed an arms embargo on Venezuela, which ended all U.S. commercial arms sales and re-transfers to Venezuela. (Other countries on the Section 40A list include Cuba, Iran, North Korea, and Syria, not to be confused with the ―state sponsors of terrorism‖ list under Section 6(j) of the Export Administration Act of 1979.) According to the terrorism report, President Chávez continued public criticism of U.S. counterterrorism efforts and deepened Venezuelan relationships with Iran and Cuba, and his ideological sympathy for the FARC and ELN, along with high levels of corruption among Venezuelan officials, limited Venezuelan cooperation with Colombia in combating terrorism. In addition, according to the report, Venezuelan citizenship, identity, and travel documents remained easy to obtain, making the country a potentially attractive way-station for terrorists. U.S. officials and Members of Congress also have expressed concerns about Venezuela‘s growing relations with Iran, especially because of Iran‘s links with Hezbollah. On June 18, 2008, the U.S. Treasury Department‘s Office of Foreign Assets Control announced that it was freezing the U.S. assets of two Venezuelans for providing financial and other support to Hezbollah. In the 110th Congress, the House approved H.Res. 435 (Klein) in November 2007, which expressed concern about Iran‘s efforts to expand its influence in Latin America, and noted Venezuela‘s increasing cooperation with Iran. Also in the 110th Congress, two resolutions were introduced related to Venezuela and terrorism, but no legislative was action on the measures. H.Res. 1049 (Mack), introduced March 13, 2008, would have called on the Administration to designate Venezuela as a state sponsor of terrorism. H.Res. 965 (Issa), introduced February 7, 2008, would have called upon the Chávez government to implement measures to deny the use of Venezuelan territory and weapons from being used by terrorist organizations and to resume full cooperation with the United States on counterterrorism measures. For additional information on Venezuela and terrorism concerns, see CRS Report RL32488, Venezuela: Political Conditions and U.S. Policy.

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Peru The brutal Shining Path (Sendero Luminoso or SL) insurgency, which the Department of State has designated as an FTO, was significantly weakened in the 1 990s with the capture of its leader Abimael Guzman, who, after a new trial in 2006, was sentenced to life in prison. According to the State Department terrorism report, SL has several hundred armed combatants, and the group is now involved in drug trafficking. The SL killed 20 civilians, 11 police officers, and one military member in 2007, and conducted 80 terrorist acts in remote coca-growing areas this year. According to the terrorism report, the FARC continued to use remote areas along the Colombian- Peruvian border for rest and to make arms purchases.

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Tri-Border Area In recent years, U.S. concerns have increased over activities of the radical Lebanon-based Islamic group Hezbollah (Party of God) and the Sunni Muslim Palestinian group Hamas (Islamic Resistance Movement) in the tri-border area (TBA) of Argentina, Brazil, and Paraguay, which has a large Muslim population. The TBA has long been used for arms and drug trafficking, contraband smuggling, document and currency fraud, money laundering, and the manufacture and movement of pirated goods. A 2009 RAND study examines how Hezbollah has benefitted from film piracy proceeds in the tri-border.1 The State Department terrorism report maintains that the United States remains concerned that Hezbollah and Hamas sympathizers are raising funds among the sizable Muslim communities in the region, but stated that there was no corroborated information that these or other Islamic extremist groups had an operational presence in the area. Allegations have linked Hezbollah to two bombings in Argentina: the 1992 bombing of the Israeli Embassy in Buenos Aires that killed 30 people and the 1994 bombing of the Argentine-Israeli Mutual Association (AMIA) in Buenos Aires that killed 85 people. In November 2006, an Argentine judge issued arrest warrants in the AMIA case for nine individuals: an internationally wanted Hezbollah militant from Lebanon, Imad Mughniyah, and eight Iranian government officials, including former Iranian President Hashemi Rafsanjani. Interpol subsequently posted a Red Notice for Mughniyah, and in November 2007, its General Assembly voted to approve notices for five of the Iranians wanted by Argentina (not including Rafsanjani). In February 2008, Imad Mughniyah was killed by a car bomb in Damascus, Syria. Congress has continued to express concern about progress in the investigation of the AMIA bombing. H.Con.Res. 188 (Ros-Lehtinen), approved by the House by voice vote on July 30, 2007, applauded the Argentine government for increasing the pace of the AMIA investigation, and called upon the General Assembly of Interpol to issue red notices for five Iranians implicated in the bombing. H.Con.Res. 385 (Ros-Lehtinen), approved by the House by voice vote on July 15, 2008, condemned the AMIA bombing, and urged Western Hemisphere governments to take actions to curb activities that supported Hezbollah and other Islamist terrorist organizations. Another resolution, H.Res. 435 (Klein), approved November 5, 2007 by voice vote, expressed concern over the emerging national security implications of 1

Gregory F. Treverton et al, Film Piracy, Organized Crime, and Terrorism, RAND, 2009.

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Iran‘s efforts to expand its influence in Latin America, and emphasized the importance of eliminating Hezbollah‘s financial network in the tri-border area of South America.

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Cuba Since 1982, the Department of State, pursuant to Section 6(j) of the Export Administration Act (EAA) of 1979, has included Cuba among its list of states sponsoring terrorism (the other states currently on the list are Iran, Sudan, and Syria). Communist Cuba had a history of supporting revolutionary movements and governments in Latin America and Africa, but in 1992, then Cuban leader Fidel Castro said that his country‘s support for insurgents abroad was a thing of the past. Most analysts accept that Cuba‘s policy generally did change, largely because the breakup of the Soviet Union resulted in the loss of billions in subsidies. The State Department‘s terrorism report maintains that Cuba has ―remained opposed to U.S. counterterrorism policy, and actively and publicly condemned many associated U.S. policies and actions.‖ It also noted that Cuba maintains close relationships with other state sponsors of terrorism, such as Iran and Syria, and has provided safe haven for members of several FTOs – the FARC, ELN, and Basque ETA from Spain. Colombia has publicly acknowledged that it wants Cuba mediation with the ELN. The terrorism report also maintained that Cuba permits U.S. fugitives from justice to live legally in Cuba, with many accused of hijacking or committing violent actions in the United States, although it noted that Cuba stated in 2006 that it will no longer provide safe haven to new fugitives who may enter the country. In April 2007, Cuba returned U.S. fugitive Joseph Adjmi, who was convicted of mail fraud in the 1960s. Several fugitives wanted in Florida for Medicare fraud reportedly fled to Cuba in 2008. In a notorious case, three brothers (Carlos, Luis, and José Benitez) who reportedly submitted $119 million in false medical claims have been imprisoned since September 2008 on immigration violations, although they have not been returned to the United States.2 Cuba has called for the United States to surrender Luis Posada Carriles and three Cuban Americans that it accused of plotting to kill Castro and bombing a Cuban airliner in 1976. Cuba‘s retention on the terrorism list has been questioned by some observers. In general, those who support keeping Cuba on the list point to the government‘s history of supporting terrorist acts and armed insurgencies in Latin America and Africa. They point to the government‘s continued hosting of members of foreign terrorist organizations and U.S. fugitives from justice. Critics of retaining Cuba on the terrorism list maintain that it is a holdover of the Cold War. They argue that domestic political considerations keep Cuba on the terrorism list while North Korea and Libya have been removed, and maintain that Cuba‘s presence on the list diverts U.S. attention from struggles against serious terrorist threats. For additional information on Cuba, see CRS Report R40193, Cuba: Issues for the 111th Congress. For background, see CRS Report RL3225 1, Cuba and the State Sponsors of Terrorism List.

2

Jay Weaver, ―Fugitives make off with Medicare millions,‖ Miami Herald, January 1, 2009.

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U.S. POLICY As in other parts of the world, the United States has assisted Latin American and Caribbean nations over the years in their struggle against terrorist or insurgent groups indigenous to the region. For example, in the 1980s, the United States supported the government of El Salvador with significant economic and military assistance in its struggle against a leftist guerrilla insurgency. In recent years, the United States has employed various policy tools to combat terrorism in the Latin America and Caribbean region, including sanctions, anti-terrorism assistance and training, law enforcement cooperation, and multilateral cooperation through the OAS. Moreover, given the nexus between terrorism and drug trafficking, one can argue that assistance aimed at combating drug trafficking organizations in the region has also been a means of combating terrorism by cutting off a source of revenue for terrorist organizations. The same argument can be made regarding efforts to combat money laundering in the region. Although terrorism was not the main focus of U.S. policy toward the region in recent years, attention increased in the aftermath of the 9/11 terrorist attacks on New York and Washington. Anti-terrorism assistance has increased along with bilateral and regional cooperation against terrorism. Congress approved the Bush Administration‘s request in 2002 to expand the scope of U.S. assistance to Colombia beyond a counternarcotics focus to also include counterterrorism assistance to the government in its military efforts against drugfinanced leftist guerrillas and rightist paramilitaries. Border security with Mexico also became a prominent issue in bilateral relations, with attention focused on the potential transit of terrorists through Mexico to the United States. The United States has imposed sanctions on three groups in Colombia (ELN, FARC, and AUC) and one group in Peru (SL) designated by the Department of State as FTOs. Official designation of such groups as FTOs triggers a number of sanctions, including visa restrictions and the blocking of any funds of these groups in U.S. financial institutions. The designation also has the effect of increasing public awareness about these terrorist organizations and the concerns that the United States has about them. As noted above, the United States has included Cuba on its list of state sponsors of terrorism since 1982, pursuant to section 6(j) of the EAA, and both Cuba and Venezuela are currently on the annual Section 40A AECA list of countries that are not cooperating fully with U.S. antiterrorism efforts, lists that trigger a number of sanctions. Through the Department of State (Diplomatic Security Office, Office of Antiterrorism Assistance), the United States provides Anti-Terrorism Assistance (ATA) training and equipment to Latin American countries to help improve their capabilities in such areas as airport security management, hostage negotiations, bomb detection and deactivation, and countering terrorism financing. Such training was expanded to Argentina in the aftermath of the two bombings in 1992 and 1994. Assistance was also stepped up in 1997 to Argentina, Brazil, and Paraguay in light of increased U.S. concern over illicit activities in the tri-border area of those countries. ATA funding is generally provided through the annual foreign operations appropriations measure under the Nonproliferation, Anti-terrorism, Demining, and Related Programs (NADR) account. In recent years, ATA for Western Hemisphere countries amounted to $8.9 million in FY2006, $7.3 million in FY2007, and an estimated $8 million in FY2008. For FY2009, the Administration requested $9.3 million in ATA for Latin America, with $2.8 million for Colombia and $3 million for Mexico, and the balance for other countries. Also under the NADR funding account, the United States began providing Terrorist

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Interdiction Program assistance for several Latin American countries in FY2008. An estimated $1.3 million is being provided to Panama, Brazil, and Nicaragua in FY2008, while the Administration requested $1.2 million for Latin America for FY2009. The United States also works closely with the governments of the tri-border area— Argentina, Brazil, and Paraguay—through the ―3+1 regional cooperation mechanism,‖ which serves as a forum for counterterrorism cooperation and prevention.

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Increased Regional Cooperation since 9/11 Latin American nations strongly condemned the September 2001 terrorist attacks on the United States and took action through the OAS and the Rio Treaty to strengthen hemispheric cooperation against terrorism. The OAS, which happened to be meeting in Peru at the time, swiftly condemned the attacks, reiterated the need to strengthen hemispheric cooperation to combat terrorism, and expressed full solidarity with the United States. At a special session on September 19, 2001, OAS members invoked the 1947 Inter-American Treaty of Reciprocal Assistance, also known as the Rio Treaty, which obligates signatories to the treaty to come to one another‘s defense in case of outside attack. Another resolution approved on September 21, 2001, called on Rio Treaty signatories to ―use all legally available measures to pursue, capture, extradite, and punish those individuals‖ involved in the attacks and to ―render additional assistance and support to the United States, as appropriate, to address the September 11 attacks, and also to prevent future terrorist acts.‖ In the aftermath of 9/11, OAS members reinvigorated effort of the of the Inter-American Committee on Terrorism (CICTE) to combat terrorism in the hemisphere. The CICTE has cooperated on border security mechanisms, controls to prevent terrorist funding, and law enforcement and counterterrorism intelligence and information. At a January 2003 CICTE meeting, OAS members issued the Declaration of San Salvador, which pledged to strengthen hemispheric cooperation through a variety of border, customs, and financial control measures. At the February 2005 CICTE session held in Trinidad and Tobago, OAS members reaffirmed their commitment to deepen cooperation against terrorism and addressed threats to aviation, seaport, and cyber security. CICTE held its seventh annual regular session in Panama from February 28-March 2, 2007, which focused on the protection of critical infrastructure in the region. OAS members signed the Inter-American Convention Against Terrorism in June 2002. The Convention, among other measures, improves regional cooperation against terrorism, commits parties to sign and ratify U.N. anti-terrorism instruments and take actions against the financing of terrorism, and denies safe haven to suspected terrorists. President Bush submitted the Convention to the Senate on November 12, 2002, for its advice and consent, and the treaty was referred to the Senate Foreign Relations Committee (Treaty Doc. 107-18). In the 109th Congress, the committee formally reported the treaty on July 28, 2005 (Senate Exec. Rept. 109-3), and on October 7, 2005, the Senate agreed to the resolution of advice and consent. The United States deposited its instruments of ratification for the Convention on November 15, 2005.

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In: Terrorism Issues, Policies and Legislation Editor: Barry J. Pourer, pp. 109-131

ISBN: 978-1-61209-327-7 © 2011 Nova Science Publishers, Inc.

Chapter 7

COMBATING TERRORISM: THE UNITED STATES LACKS COMPREHENSIVE PLAN TO DESTROY THE TERRORIST THREAT AND CLOSE THE SAFE HAVEN IN PAKISTAN’S FEDERALLY ADMINISTERED TRIBAL AREAS United States Government Accountability Office

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WHY GAO DID THIS STUDY Since 2002, destroying the terrorist threat and closing the terrorist safe haven have been key national security goals. The United States has provided Pakistan, a key ally in the war on terror, more than $10.5 billion for military, economic, and development activities. Pakistan‘s Federally Administered Tribal Areas (FATA), which border Afghanistan, are vast unpoliced regions attractive to extremists and terrorists seeking a safe haven. GAO was asked to assess (1) the progress in meeting these national security goals for Pakistan‘s FATA, and (2) the status of U.S. efforts to develop a comprehensive plan for the FATA. To address these objectives, GAO compared national security goals against assessments conducted by U.S. agencies and reviewed available plans.

WHAT GAO RECOMMENDS GAO recommends that the National Security Advisor and the Director of the NCTC, in consultation with the Secretaries of Defense and State and others, implement the congressional mandate to develop a comprehensive plan to combat the terrorist threat and close the safe haven in the FATA. Defense and USAID concurred with the recommendation; State asserted that a comprehensive strategy exists, while the Office of the Director of National Intelligence stated that plans to combat terrorism exist. In GAO‘s view, these plans have not been formally integrated into a comprehensive plan as called for by Congress. The NSC provided no comments.

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WHAT GAO FOUND The United States has not met its national security goals to destroy terrorist threats and close the safe haven in Pakistan‘s FATA. Since 2002, the United States relied principally on the Pakistan military to address U.S. national security goals. Of the approximately $5.8 billion the United States provided for efforts in the FATA and border region from 2002 through 2007, about 96 percent reimbursed Pakistan for military operations there. According to the Department of State, Pakistan deployed 120,000 military and paramilitary forces in the FATA and helped kill and capture hundreds of suspected al Qaeda operatives; these efforts cost the lives of approximately 1,400 members of Pakistan‘s security forces. However, GAO found broad agreement, as documented in the National Intelligence Estimate, State, and embassy documents, as well as Defense officials in Pakistan, that al Qaeda had regenerated its ability to attack the United States and had succeeded in establishing a safe haven in Pakistan‘s FATA. No comprehensive plan for meeting U.S. national security goals in the FATA has been developed, as stipulated by the National Strategy for Combating Terrorism (2003), called for by an independent commission (2004), and mandated by congressional legislation (2007). Furthermore, Congress created the National Counterterrorism Center (NCTC) in 2004 specifically to develop comprehensive plans to combat terrorism. However, neither the National Security Council (NSC), NCTC, nor other executive branch departments have developed a comprehensive plan that includes all elements of national power—diplomatic, military, intelligence, development assistance, economic, and law enforcement support— called for by the various national security strategies and Congress. As a result, since 2002, the U.S. embassy in Pakistan has had no Washington-supported, comprehensive plan to combat terrorism and close the terrorist safe haven in the FATA. In 2006, the embassy, in conjunction with Defense, State, and U.S. Agency for International Development (USAID), and in cooperation with the government of Pakistan, began an effort to focus more attention on other key elements of national power, such as development assistance and public diplomacy, to address U.S. goals in the FATA. However, this does not yet constitute a comprehensive plan.

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ABBREVIATIONS CENTCOM CIA CSF Defense DNI FATA FCR NIE NCTC NSC ODNI State USAID

U.S. Central Command Central Intelligence Agency Coalition Support Funds Department of Defense Director of National Intelligence Federally Administered Tribal Areas Frontier Crimes Regulations National Intelligence Estimate National Counterterrorism Center National Security Council Office of the Director of National Intelligence Department of State U.S. Agency for International Development

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Congressional Requesters: The terrorist attacks of 9/11 were planned from an Afghan safe haven, and many of the terrorists who attacked the United States used Pakistan as the main route to travel from Afghanistan to the United States. Since the 9/11 attacks in 2001, the administration and Congress have repeatedly stated that destroying terrorist threats and closing terrorist safe havens are the nation‘s critical national security goals.1 As such, the United States has provided Pakistan, which has become a key U.S. ally in the global war on terror, with more than $10.5 billion for military, economic, and development activities in support of these goals. The 9/11 Commission, an independent, bipartisan commission created by congressional legislation in late 2002, concluded in 2004 that it is hard to overstate the importance of Pakistan in the struggle against Islamist terrorism. The commission found that the country‘s vast unpoliced regions have made it attractive to extremists seeking a safe haven and have reportedly provided a base for terrorist operations against U.S. and coalition forces in Afghanistan. Following the defeat of the Taliban in Afghanistan, al Qaeda and Taliban fighters are believed to have retreated across the Afghan border and into Pakistan‘s Federally Administered Tribal Areas (FATA) in an effort to reestablish a terrorist safe haven. Because of the challenges the United States faces in Pakistan in meeting its goals to destroy the terrorist threats and close the terrorist safe haven, we were asked to assess (1) U.S. progress in meeting its national security goals in Pakistan‘s FATA region, and (2) the status of U.S. efforts to develop a comprehensive plan for the FATA. This report is the first in a series of reports we plan to issue in response to your interest in U.S. support of the Pakistani government‘s efforts in the FATA region bordering Afghanistan. We plan to issue an interim product on the use and oversight of Coalition Support Funds (CSF) in May 2008 and a report on CSF in the summer of 2008, followed by a 1

These goals have been set forth in the 2002 National Security Strategy, the 2003 National Strategy for Combating Terrorism, the 2004 9/11 Commission Report, and endorsed by the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458, sec 7102 (b)(3)) and the Implementing the Recommendations of the 9/11 Commission Act of 2007 (P.L. 110-53, sec. 2042(b)(2)).

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broader report covering security, political, and development assistance activities undertaken by the United States to meet U.S. national security goals in the FATA. To address our objectives, we reviewed relevant national security strategies, the 9/11 Commission Report, key congressional legislation, and related documentation from the Departments of Defense (Defense) and State (State) and the U.S. Agency for International Development (USAID), and discussed these issues with relevant department officials in Washington, D.C. We also interviewed Defense officials operating out of the U.S. Central Command (CENTCOM) headquarters in Tampa, Florida. We requested meetings with the Central Intelligence Agency (CIA), the National Counterterrorism Center (NCTC), and the National Security Council (NSC); however, only the CIA agreed to meet with us. To determine progress in meeting national security objectives, we compared the national security goals stated in strategic documents with unclassified assessments conducted by the Director of National Intelligence (DNI), State, and U.S. officials operating in Pakistan. To determine if comprehensive plans were developed and contained the elements recommended by national security documents, legislation, and GAO, we requested all plans addressing U.S. efforts in the FATA from the CIA, Defense, NCTC, NSC, State, USAID, and the U.S. Embassy in Pakistan. CIA, NCTC, and NSC did not provide any plans. We reviewed all plans provided by Defense, State, and USAID, as of April 17, 2008. We also met with members of the International Crisis Group in Washington, including the director of their office in Pakistan.2 In addition, we conducted field work in Pakistan, where we met with officials from the U.S. embassy and Pakistan‘s Ministries of Defense and Interior, as well as international donors from Canada, Japan, the Netherlands, and the United Kingdom. We visited Peshawar, near the FATA, to conduct discussions with the U.S. consulate, Pakistan‘s 11th Army Corps, the Frontier Corps, the FATA Secretariat and Development Authority, and a Pakistani nongovernmental organization with experience working in the FATA. We determined the amount of U.S. funding to Pakistan by analyzing Defense, State, and USAID budget documents covering the period from fiscal years 2002 through 2007 and by verifying the amounts used for the FATA and the border regions through discussions with agency officials. This analysis does not include funding for covert activities in Pakistan. We conducted this performance audit from July 2007 through April 2008 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

RESULTS IN BRIEF The United States has not met its national security goals to destroy the terrorist threat and close the safe haven in Pakistan‘s FATA region. Since 2002, the United States has relied principally on the Pakistani military to address its national security goals. There have been limited efforts, however, to address other underlying causes of terrorism in the FATA by 2

The International Crisis Group is an independent, nonpartisan source of analysis on the prevention and resolution of global conflicts.

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providing development assistance or by addressing the FATA‘s political needs. Of the over $10.5 billion that the United States has provided to Pakistan from 2002 through 2007, we identified about $5.8 billion specifically for Pakistan‘s FATA and border region; about 96 percent of this funding reimbursed Pakistan for military operations in the FATA and the border region. According to Defense and State Department officials, Pakistan deployed up to 120,000 military and paramilitary forces in the FATA and killed and captured hundreds of suspected al Qaeda operatives. In October 2007, State reported that it had determined that Pakistan was making ―significant‖ progress toward eliminating the safe haven in the FATA. However, we found broad agreement, as documented in the unclassified 2007 National Intelligence Estimate (NIE), State and embassy documents, as well as among Defense, State, and other officials, including those operating in Pakistan, that al Qaeda had regenerated its ability to attack the United States and had succeeded in establishing a safe haven in Pakistan‘s FATA. No comprehensive plan for meeting U.S. national security goals in the FATA has been developed, as stipulated by the National Strategy for Combating Terrorism, recommended by the independent 9/11 Commission, and mandated by congressional legislation.3 Since 2003, the administration‘s national security strategies and Congress have recognized that a comprehensive plan that includes all elements of national power— diplomatic, military, intelligence, development assistance, economic, and law enforcement support—was needed to address the terrorist threat emanating from the FATA. Furthermore, in 2004, a provision of the Intelligence Reform and Terrorism Prevention Act of 2004 (Intelligence Reform Act) established the NCTC to develop comprehensive plans to combat terrorism that included clear objectives, the assignment of tasks among executive branch departments, and interagency coordination. We have previously reported on the need for these and other elements to enhance interagency cooperation and improve effectiveness.4 The NCTC also was tasked with monitoring each department‘s efforts. However, neither the NCTC, the NSC, nor the other executive branch departments have developed a comprehensive plan that integrates the capabilities of the executive agencies and the intelligence community. As a result, since 2002, the embassy has had no Washington-supported, comprehensive plan to combat terrorists and close the terrorist safe haven in the FATA. In 2006, the U.S. government, in conjunction with the government of Pakistan, began an effort to focus more attention on other key elements of national power, such as development and public diplomacy, to address U.S. goals in the FATA. In support of this effort, Defense, State, and USAID began to develop departmentspecific plans and hold interagency meetings to address security and development issues in the FATA. However, this effort has not yet resulted in a comprehensive plan. As of April 3

The administration‘s 2003 National Strategy for Combating Terrorism, the independent 9/11 Commission Report, and Congress‘s (1) Intelligence Reform Act and Terrorism Prevention Act of 2004 (P.L. 108-458, sec. 7120) and (2) the Implementing the Recommendations of the 9/11 Commission Act of 2007 (P.L. 110-53, sec. 2042 (c)) all support the development of a comprehensive plan that uses all elements of national power. 4 We reported that strategic plans should clearly define objectives to be accomplished, identify the roles and responsibilities for meeting each objective, ensure that funding necessary to achieve the objectives is available, and employ monitoring mechanisms to determine progress and identify needed improvements. See GAO, Combating Terrorism: Law Enforcement Agencies Lack Directives to Assist Foreign Nations to Identify, Disrupt, and Prosecute Terrorists, GAO-07-697 (Washington, D.C.: May 25, 2007); GAO, Results-Oriented Government: Practices That Can Help Enhance and Sustain Collaboration among Federal Agencies, GAO06-15 (Washington, D.C.: Oct. 21, 2005); and GAO, Combating Terrorism: Observations on National Strategies Related to Terrorism, GAO-03-519T (Washington, D.C.: Mar. 3, 2003).

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2008, not all of these efforts have been approved in Washington, funding shortfalls exist, and support from the recently elected government of Pakistan is unknown.5 We are recommending that the National Security Advisor and the Director of the NCTC, in consultation with the Secretaries of Defense and State, the Administrator of USAID, the intelligence community, and other executive departments as deemed appropriate, work to develop a comprehensive plan using all elements of national power to combat the terrorist threat and close the associated safe haven in Pakistan‘s FATA region. The comprehensive plan should also include key components called for in the Intelligence Reform Act and components that we have previously reported as being needed to improve the effectiveness of plans involving multidepartmental efforts to combat terrorism. State, the Office of the Director of National Intelligence (ODNI), Defense, and USAID provided written comments on a draft of this report, which are reproduced in appendixes I, II, III, and IV. State and ODNI did not comment on our recommendation, while Defense and USAID concurred. In general, they all commented on their individual planning efforts and interagency meetings to coordinate these efforts that began in 2006. This, however, was not the focus of our review; our report assessed whether a comprehensive plan had been developed that incorporated all elements of national power. State‘s comments asserted that embassy and U.S. government efforts to date have resulted in a comprehensive strategy. We disagree, and note in our report that while the initiatives begun by Defense, State, and USAID are being coordinated by the embassy, they have not been fully approved or integrated into a formal, comprehensive plan. ODNI‘s comments stated that they agreed with our finding that the United States had not met its national security goals in Pakistan‘s FATA; however, they disagreed that the United States lacks plans to combat terrorism. Our report does not state that the U.S. lacks agencyspecific plans; rather, we found that there was no comprehensive plan that integrated the combined capabilities of Defense, State, USAID, the intelligence community, and others, as called for by the 2003 national security strategy, the 9/11 Commission report, and Congress. We also received technical comments from Defense and USAID, which we have incorporated throughout the report where appropriate.

BACKGROUND The FATA is mountainous and shares a 373-mile border with Afghanistan known as the Durand Line (see fig. 1). The FATA, which has a population of 3.1 million people, is one of Pakistan‘s poorest regions, with high poverty, high unemployment, and an underdeveloped infrastructure. Most of the population depends on subsistence agriculture. The FATA‘s per capita income is $250 per year, which is half of the national per capita income; about 60 percent of the population lives below the national poverty line. Per capita public development expenditure is reportedly one- third of the national average. Social development indicators are also poor. The overall literacy rate is 17 percent, compared with 56 percent nationally, with

5

We will continue to monitor the status and progress of the U.S. government‘s effort in the FATA and report on the matter in a subsequent report.

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male literacy at 29 percent and female literacy at 3 percent. The FATA has just 41 hospitals for its population of 3.1 million, and a doctor to population ratio of 1 to 6,762.

Sources: GAO; USAID and Map Resources (maps).

Figure 1. Map of the Federally Administered Tribal Areas, Pakistan.

The FATA is governed by an administrative system and a judicial system different from the rest of Pakistan—the Frontier Crimes Regulations (FCR) of 1901, codified under British rule.6 Because Pakistan retained the colonial administrative and legal structures of the British, as codified in the FCR, the FATA populations are legally separate from and unequal to other Pakistani citizens. Examples of these differences under the FCR follow:  

6

FATA residents do not have access to national political parties, and political parties are forbidden from extending their activities into the agencies of FATA. The FATA is under the direct executive authority of the President of Pakistan. Laws framed by the National Assembly of Pakistan do not apply in the FATA unless so ordered by the President, who is empowered to issue regulations for the tribal areas.

The information on foreign law in this report does not reflect our independent legal analysis but is based on interviews and secondary sources.

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

FATA residents do not have the right to legal representation, to present material evidence, or to cross-examine witnesses in Pakistan‘s judicial system. Those convicted are denied the right of appeal in Pakistan‘s courts. The President‘s representatives to the FATA, who are called political agents, can punish an entire tribe for crimes committed on the tribe‘s territory by issuing fines, making arrests, implementing property seizures, and establishing blockades.

In response to the draft, Defense noted that the FCR is a culturally acceptable recognition of the tribal structure of the FATA, where the population is ethnically different from the majority of Pakistan‘s citizens, and precludes forced assimilation. Further, Defense noted that removing the FCR without a replacement mechanism that is accepted by the indigenous population has the potential to create a vacuum that could result in negative consequences. A recent announcement by Pakistani Prime Minister Yousaf Raza Gillani regarding the repeal of the FCR drew mixed reactions from tribesmen and political leaders, some of whom called for amendments to the FCR, rather than its repeal.

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THE U.S. GOVERNMENT HAS NOT MET NATIONAL SECURITY GOALS IN PAKISTAN’S FATA The United States has not met its national security goals to destroy the terrorist threat and close the safe haven in the FATA, despite more than $10.5 billion in U.S. support to Pakistan since 2002. Various national security strategies have called for the use of all elements of national power, such as diplomatic, military, intelligence, development assistance, economic, and law enforcement support, to meet these goals; however, the United States has relied principally on supporting the Pakistani military to meet these goals. According to Defense and State, the Pakistani government deployed up to 120,000 military and paramilitary forces to combat terrorism in the FATA. Despite this effort, the 2007 NIE, State and embassy documents, and Defense and State officials, including those operating in Pakistan, have concluded that al Qaeda has regenerated its ability to attack the United States and succeeded in establishing a safe haven in Pakistan‘s FATA.

Although State has Reported Some Progress in Pakistan’s FATA, Other Sources Indicate Resurgence of an al Qaeda Threat and the Establishment of a Terrorist Safe Haven in the FATA On October 1, 2007, State provided Congress with a report in response to a requirement in the Implementation of the 9/11 Commission Act of 2007 (9/11 Commission Act).7 The report stated that it had determined that Pakistan was (1) committed to eliminating from Pakistani territory any organization, such as the Taliban, al Qaeda, or any successor engaged in military, insurgent, or terrorist activities in Afghanistan; (2) undertaking a comprehensive military, legal, economic, and political campaign to achieve the goal described; and (3) making demonstrated, significant, and sustained progress toward eliminating support or safe 7

P.L. 110-53, sec. 2042(d), Aug. 3, 2007.

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havens for terrorists. Notwithstanding State‘s report to Congress, we found broad agreement that al Qaeda had established a safe haven in the FATA and reconstituted its attack capability. In particular, the unclassified versions of the 2007 NIE and 2008 Annual Threat Assessment state that al Qaeda has regenerated its attack capability and secured a safe haven in Pakistan‘s FATA.8 These conclusions are supported by a broad array of sources, including Defense, State, and senior U.S. embassy officials in Pakistan. The NIE and other sources have found that al Qaeda has established a safe haven in Pakistan. The DNI‘s 2008 assessment stated that the safe haven in Pakistan provides al Qaeda with many of the same advantages it had when it was based across the border in Afghanistan. According to the assessment, the safe haven in the FATA serves as a staging area for al Qaeda‘s attacks in support of the Taliban in Afghanistan. Further, it serves as a location for training new terrorist operatives for attacks in Pakistan, the Middle East, Africa, Europe, and the United States. U.S. government officials in Washington and Pakistan also acknowledge that al Qaeda has established a safe haven near Pakistan‘s border with Afghanistan. For example, State‘s April 2007 Country Reports on Terrorism states that Pakistan remains a major source of Islamic extremism and a safe haven for some top terrorist leaders, including those of al Qaeda. The NIE, The Terrorist Threat to the U.S. Homeland, also found that al Qaeda had effectively found replacements for many of its senior operational planners over the years. The NIE stated that, in the past 2 years, al Qaeda‘s central leadership regenerated the core operational capabilities needed to conduct attacks against the United States. It also found that al Qaeda‘s central leadership, based in the border area of Pakistan, is and will remain the most serious terrorist threat to the United States. The 2008 DNI Annual Threat Assessment and other sources have concluded that the resurgence of al Qaeda terrorists on the border between Pakistan and Afghanistan now pose a preeminent threat to U.S. national security. The assessment also examines the impact of not meeting the national security goals. It states that al Qaeda is now using the Pakistani safe haven to put the last element necessary to launch another attack against America into place, including the identification, training, and positioning of Western operatives for an attack. It stated that al Qaeda is most likely using the FATA to plot terrorist attacks against political, economic, and infrastructure targets in America ―designed to produce mass casualties, visually dramatic destruction, significant economic aftershocks, and/or fear among the population.‖ DNI‘s 2008 assessment found that al Qaeda and other Pakistan-based militants now also pose a threat to Pakistan. The assessment found an unparalleled increase in suicide attacks against Pakistan‘s military and civilians over the past year, with total casualties in 2007 exceeding all such attacks in the preceding 5 years. These attacks were ordered by Pakistanbased militants, many of whom are allied with al Qaeda. It found that the terrorist assassination of former Prime Minister Benazir Bhutto could encourage terrorists to strike the Pakistani establishment anywhere in the country. The assessment concluded that radical elements now have the potential to undermine Pakistan itself.

8

The DNI‘s 2007 NIE and its 2008 Annual Threat Assessment are designed to help U.S. civilian and military leaders develop policies to protect U.S. national security interests and represent the combined judgments of 16 U.S. intelligence agencies, according to the NIE.

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The United States has Relied Primarily on the Pakistani Military to Accomplish Its Goals in Pakistan’s FATA, with Little Focus on Economic Development and Improving Governance

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Since 2002, the United States has relied principally on the Pakistani military to address U.S. national security goals in the FATA. There have been limited efforts, however, to address other underlying causes of terrorism in the FATA, such as providing development assistance or addressing the FATA‘s political needs. For example, although the FATA has some of the worst development indicators in Pakistan and is ruled under colonial administrative and legal structures dating from 1901, the United States has devoted little funding to address these issues in the FATA.

Source: GAO analysis of Defense, State, and USAID data. Figure 2. Percentage of U.S. Funding Directed toward Military, Border Security, and Development Activities in Pakistan‘s FATA and Border Region from Fiscal Years 2002 to 2007.

From fiscal years 2002 to 2007, the United States has provided Pakistan with more than $10.5 billion in funds and assistance.9 Approximately $5.8 billion of this amount has been directed at efforts to combat terrorism in Pakistan‘s FATA and the border region. As figure 2 shows, about 96 percent of this amount was used to reimburse the Pakistani government through CSF10 for military operations in support of Operation Enduring Freedom in 9

GAO arrived at this figure by analyzing Defense, State, and USAID documents. We identified major sources of U.S. funding to Pakistan, including $5.56 billion in CSF reimbursed through June 2007, $1.98 billion in development assistance (through December 2007), $1.6 billion in economic support fund cash transfers to support basic government operations, $1.22 billion for the purchase of military equipment, $9 million in international military training, and $202 million in border security assistance. 10 CSF reimburses Pakistan for a variety of activities in support of the global war on terror, the majority of which consists of Army and Air Force operations against terrorists in Pakistan‘s FATA and the border region. However, some of the CSF also supports Pakistani Navy and Air Force activities outside of this area. Defense was unable to quantify what was reimbursed for activities outside the FATA and the border region at the time of our report, and therefore, we included all CSF funds in figure 2 as funds going toward the FATA and the border region.

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Afghanistan, most significantly against terrorists in Pakistan‘s FATA and border region. We identified only two nonmilitary activities that occured in the FATA and border region: State‘s Border Security Program, which received about $187 million, and USAID development activities, which amounted to about $40 million. According to a State Department report, Pakistan‘s military forces have had some tactical successes in the FATA. The Pakistani government stationed military and paramilitary forces along the border with Afghanistan, and security operations in the FATA disrupted terrorist activity by targeting and raiding al Qaeda and other militant safe havens.11 According to State, Pakistan has helped kill or capture hundreds of suspected terrorists, including al Qaeda operatives and Taliban leaders. In addition, Pakistani military operations have resulted in the deaths of approximately 1,400 members of its security forces.

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Key Government Stakeholders Recognize That a More Comprehensive Approach is Needed Defense, State, U.S. embassy, and Pakistani government officials recognize that relying primarily on the Pakistani military has not succeeded in neutralizing al Qaeda and preventing the establishment of a safe haven in the FATA. State‘s April 2007 Country Reports on Terrorism states that, despite having Pakistani troops in the FATA and sustaining hundreds of casualties, the government of Pakistan has been unable to exert control over the area. The report concluded that Pakistan has now recognized that military operations alone will not restore security and stability to the FATA. Similarly, U.S. embassy officials in Pakistan stated that Taliban and al Qaeda elements have created a safe haven in the FATA and have used it to plan and launch attacks on Afghan, Pakistani, U.S., and coalition forces in Afghanistan and Pakistan. The embassy further noted that al Qaeda and the Taliban continue to recruit, train, and operate in the FATA. According to senior embassy officials, U.S. reliance on Pakistan‘s military stemmed from the lack of a comprehensive plan to guide embassy efforts and the sense that the Pakistani military was the most capable institution in Pakistan to quickly undertake operations against al Qaeda immediately after the attacks of 9/11. Senior embassy officials stated that this may have led to an ―over-reliance‖ on the Pakistani military to achieve U.S. national security objectives in Pakistan.

NO COMPREHENSIVE PLAN FOR GUIDING U.S. EFFORTS IN THE FATA HAS BEEN DEVELOPED, AS CALLED FOR BY THE ADMINISTRATION AND CONGRESS Despite the recognition of U.S. government officials, including the U.S. President and Congress, that a comprehensive plan employing all elements of national power—diplomatic, military, intelligence, development assistance, economic, and law enforcement support—was 11

Department of State report to Congress, pursuant to Section 2042 of the Implementing Recommendations of the 9/11 Commissions Act of 2007 (P.L. 110-53).

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needed to combat terrorism and close the terrorist safe haven in Pakistan‘s FATA region, a comprehensive plan to meet U.S. national security goals in the region was never developed. Recognizing in 2006 that military efforts alone would not succeed in the FATA, the embassy, with Defense, State, and USAID support, and in conjunction with the Pakistani government in power at that time, began an effort to focus more attention on the other key elements of national power, such as development and public diplomacy, to address U.S. national security goals in the FATA. However, this effort has not been formally approved by U.S. government stakeholders who would play a key role in the funding and implementation of such an effort, and support from the recently elected Pakistani government is uncertain.

Presidential Powers for Implementing National Security Strategies and Developing a Comprehensive Plan

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The President of the United States has primary responsibility to ensure that his national security strategy is carried out effectively. The President has the authority to task executive branch departments to develop comprehensive plans that use all elements of U.S. power— diplomatic, military, intelligence, development assistance, economic, and law enforcement support—toward meeting U.S. national security goals. As a result, the President can task key national security agencies, such as Defense, State, USAID, the Departments of Homeland Security, Justice, the Treasury, and intelligence agencies, to develop a comprehensive, integrated strategy and to use their combined capabilities to combat terrorism, as called for in the national security strategies. The President can also use the NSC12 and the NCTC13 to assist in developing, coordinating, and monitoring these plans.

Despite Executive, Congressional, and Independent Calls for Comprehensive Plans to Combat Terrorism and Close Terrorist Safe Havens, Such Plans Were Never Developed As table 1 shows, the need for the development of comprehensive plans employing all elements of national power—diplomatic, military, intelligence, development assistance, economic, and law enforcement support—to combat terrorism and close terrorist safe havens has been recognized by the President‘s national security strategies (2003), the independent 9/11 Commission (2004), and by Congress in repeated legislation (2004 and 2007). As it became clearer that al Qaeda had retreated from Afghanistan into Pakistan and was creating a safe haven in the FATA, Congress increased its demands on the U.S. administration to

12

The NSC is charged with more effectively coordinating the policies and functions of the departments and agencies related to national security. The NSC advises the President with respect to the integration of domestic, foreign, and military policies relating to national security to enable the departments and agencies to cooperate more effectively in matters involving national security. 13 The NCTC is charged with conducting strategic operational planning for counterterrorism activities, integrating all instruments of national power—including diplomatic, military, intelligence, development assistance, economic, and law enforcement support—within and among agencies, with the ultimate goal of preventing future attacks against the United States and its interests worldwide. Both report directly to the President.

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develop comprehensive plans to help Pakistan combat terrorism and close the FATA safe haven. Table 1. Key Recommendations by Executive, Independent, and Congressional Sources to Combat Terrorism and Close Terrorist Safe Havens

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Key document

Source

National Strategy for Combating Terrorism, 2003

President Bush and the NSC

9/11 Commission Report, 2004

9/11 Commission, an independent, bipartisan study group mandated by Congress in 2002

Intelligence Reform Act, 2004

9/11 Commission Act, 2007

Congress

Congress

Source: GAO analysis of key documents.

Recommendation  Called for comprehensive plans employing all elements of national power— diplomatic, military, intelligence, development assistance, economic, and law enforcement support—to combat terrorism  Gave State lead to develop coordinated plans; all appropriate departments were to develop supporting strategies  Directed Defense, State, and intelligence agencies to annually assess and develop plans to close safe havens  Stated that long-term success demands coordinated, comprehensive, multidepartment efforts employing all elements of national power  Recommended that a single entity be responsible for comprehensive multidepartment planning for U.S. efforts to combat terrorism  Recommended U.S. (1) make a long-term, comprehensive commitment to assist Pakistan to combat terrorism and (2) develop a strategy to close safe havens  Authorized creation of the NCTC to develop comprehensive, multi department plans to combat terrorism employing all elements of national power  Stipulated that such plans should include (1) the mission, (2) objectives, (3) tasks to be performed, (4) interagency coordination, and (5) roles and responsibilities. It also tasked the NCTC with monitoring each agency involved  Required a report within 180 days of passage of the act on the administration‘s strategies for (1) closing terrorist safe havens and (2) assisting Pakistan to combat terrorism  Required the President to submit a report by November 2007 on the strategy, employing all elements of national power, to combat terrorism in the FATA

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Despite recommendations by the President‘s own national security strategy, by the independent 9/11 Commission, as well as legislative mandates from Congress, a comprehensive plan to destroy the terrorist threat or close the safe haven in the FATA was never developed. Even after the creation of the NCTC, an organization specifically intended to develop, implement, and monitor multidepartment plans to combat terrorism, the embassy has yet to receive any such plan to combat terrorism in Pakistan‘s FATA. In addition, the administration did not report to Congress on its plans for assisting Pakistan in (1) combating terrorism and (2) closing terrorist safe havens, as required by both the 2004 and 2007 legislation. As a result, the embassy has lacked a Washington-approved, comprehensive plan that combines the capabilities of Defense, State, USAID, intelligence agencies, and other U.S. departments to combat terrorism in the FATA. According to senior embassy officials in Islamabad the embassy had not received a comprehensive plan from the CIA, Defense, State, the NCTC, the NSC, the White House, or any other executive department. Further, these officials stated that they had not received any strategic guidance on designing, implementing, funding, and monitoring a comprehensive effort that would use all elements of national power to combat terrorism in Pakistan. According to senior embassy officials, given the strategic threat to America, the United States should have a comprehensive strategy to defeat terrorists that uses all elements of national power. Defense, State, the DNI, USAID, and the government of Pakistan recognize that a comprehensive approach is needed to meet U.S. national security goals in Pakistan. For example, in its 2007 Country Reports on Terrorism, State indicated that Pakistan recognized that military operations alone would not restore stability to the FATA; instead, a comprehensive strategy was needed that also included economic, social development, political, and administrative efforts to enhance security in the region. The U.S. Embassy in Pakistan also concluded that, while force is a necessary component of an overall strategy to combat terrorism in the FATA, it is not sufficient as the sole component. Similarly, the DNI stated that Pakistan now recognizes it must take a more comprehensive approach to defeating terrorism and that an intensified and sustained effort that combines administrative, economic, educational, legal, and social reforms to defeat the terrorist threat is required.14 We have previously reported on the need for plans to combat terrorism to include elements that would enhance interagency cooperation and improve effectiveness. Specifically, in large-scale interagency efforts where collaboration is essential, we have found that agencies should (1) define and articulate a common outcome; (2) establish mutually reinforcing or joint strategies; (3) identify and address funding needs by leveraging resources; (4) agree on roles and responsibilities; (5) establish compatible policies, procedures, and other means to operate across agency boundaries; (6) develop mechanisms to monitor, evaluate, and report on results; (7) reinforce agency accountability for collaborative efforts through agency plans and reports; and (8) reinforce individual accountability for collaborative efforts through performance management systems.15 Pakistan and the U.S. Embassy are Encouraging More Focus on Other Key Elements of National Power to Achieve U.S. Goals in the FATA.

14

Annual Threat Assessment of the Director of National Intelligence for the Senate Select Committee on Intelligence, Feb. 5, 2008. 15 See GAO-07-697, GAO-06-15, and GAO-03-519T. Terrorism Issues, Policies and Legislation, Nova Science Publishers, Incorporated, 2011. ProQuest Ebook Central,

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Pakistan and the U.S. Embassy are Encouraging More Focus on Other Key Elements of National Power to Achieve U.S. Goals in the FATA In March 2006, the President of Pakistan requested that President Bush support Pakistan‘s effort to support a more comprehensive approach to combating terrorism in the FATA. As a result, the U.S. Embassy in Pakistan began coordinating efforts by Defense, State, and USAID to develop department-specific efforts to support Pakistan‘s Sustainable Development Plan for the FATA. Pakistan‘s Sustainable Development Plan is a 9 year, $2 billion effort to provide economic development, extend the influence of the Pakistani government, and establish security in the FATA. To assist this effort, Defense undertook a counterinsurgency assessment in the FATA and began developing its Security Development Plan. At the same time, USAID provided technical assistance to the Pakistani government to help formalize its Sustainable Development Plan, as well as to plan USAID-development activities in the FATA. This approach, if approved by the administration and key U.S. government agency stakeholders, would constitute the U.S. government‘s first attempt to focus more attention on other key elements of national power to address U.S. counterterrorism goals in the FATA. These elements include development assistance and public diplomacy, as well as counterinsurgency training, which have not been part of the previous military approach. This new approach also calls for greater levels of direct U.S. planning, implementation, coordination, and oversight. However, this new approach does not yet constitute a comprehensive plan, and all of the agencies‘ individual efforts have not been fully approved in Washington. Furthermore, funding shortfalls exist, and support by the recently elected government of Pakistan is uncertain. If fully approved, the United States would provide an estimated $956 million between fiscal years 2008 through 2011 for development, security, capacity building, and infrastructure in support of the Pakistani government. This approach represents the first effort by the U.S. embassy to directly plan, implement, coordinate, and monitor a multidepartment effort to combat terrorism in the FATA. According to officials with the U.S. embassy, the Pakistani government, and international donors, this comprehensive approach is critical to addressing the terrorist threat in the FATA and represents a significant departure from the past. As of September 2007, the embassy planned to spend $187.6 million on this initial effort using fiscal year 2007 funds. The funding has been directed to four areas:

16



Development: The $99 million development effort would be led by USAID and would include capacity building for the FATA institutions needed to plan, manage, and monitor development projects; efforts to build community and government relations; funding for health and education services; and efforts to increase employment and economic growth.16



Security: The $54.1 million Defense and State security effort would include training for military and paramilitary units in the FATA—including the Frontier Corps,

In commenting on this report, USAID stated they received $88 million for these efforts in the Fiscal Year 2007 Supplemental Appropriation.

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United States Government Accountability Office special operations forces, and air crews—and for providing night vision goggles, radios, and other equipment. 

Infrastructure: The $32.5 million the U.S. embassy has designated for infrastructure improvements related to both its security and development efforts would be used for road construction, the Frontier Corps training center, and border surveillance outposts.



Public diplomacy: $2 million in funding was allotted for public diplomacy programs.

According to the embassy, the success of this new effort in the FATA will depend on close coordination among an array of institutions within the U.S. and Pakistani governments. The new effort also will involve partner agencies and allies, including the United Kingdom, Japan, and Europe; the Asian Development Bank; nongovernmental organizations; and the Pakistani private sector, civil society, and the tribes of the FATA. We plan to monitor the status and progress of the U.S. government in developing this effort and provide an assessment in a subsequent report covering security, political, and development activities undertaken by the United States to meet U.S. national security goals in the FATA.

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CONCLUSION Combating terrorism is the United States‘ top national security priority at home and abroad. Since 9/11, U.S. national security strategies have consistently called for using all elements of national power to combat terrorism, including diplomatic, military, intelligence, development assistance, economic, and law enforcement support. Because the use of the various elements of national power falls under the authority of numerous U.S. government agencies, the development of a comprehensive plan is needed to ensure that the full capacity of the U.S. government is focused on meeting U.S. national security goals. We believe that such a plan would help to ensure coordination, integration, and implementation of U.S. efforts to close the terrorist safe haven in the FATA. A comprehensive plan to combat terrorism in the FATA that establishes goals, objectives, priorities, outcomes, and milestones, including specific performance measures, would allow an assessment of progress and help ensure accountability of U.S. efforts. As such, we believe that the administration should develop a comprehensive plan using the full capabilities provided by Defense, State, USAID, and other U.S. agencies and stakeholders to further assist Pakistan in combating terrorism.

RECOMMENDATIONS FOR EXECUTIVE ACTION We recommend that the National Security Advisor and the Director of the NCTC, in consultation with the Secretaries of Defense and State, and the Administrator of USAID, the intelligence community, and other executive departments as deemed appropriate, implement

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the congressional mandate to develop a comprehensive plan using all elements of national power to combat the terrorist threat and close their safe haven in Pakistan‘s FATA region. The comprehensive plan should also include key components called for in the Intelligence Reform Act, the Implementing Recommendations of the 9/11 Commission Act of 2007, and components that we have previously reported as being needed to improve the effectiveness of plans involving multidepartmental efforts to combat terrorism.17 The plan should (1) place someone directly in charge of this multidepartment effort to improve accountability; (2) articulate a clear strategy to implement the national security goal to destroy terrorists and close the safe haven in the FATA; (3) clarify roles and responsibilities of each department for implementing the goal; (4) provide guidance on setting funding priorities and providing resources to meet these national security goals; and (5) require a monitoring system and provide periodic reports to Congress on the progress and impediments to meeting national security goals in Pakistan.

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AGENCY COMMENTS AND OUR EVALUATION State, the Office of the Director of National Intelligence (ODNI), Defense, and USAID provided written comments on a draft of this report, which are reproduced in appendixes I, II, III, and IV. State and ODNI did not comment on our recommendation, while Defense and USAID concurred with our recommendation. In general, they all commented on their individual planning efforts and interagency meetings to coordinate these efforts that began in 2006. This, however, was not the focus of our review; our report assessed whether a comprehensive plan had been developed that incorporated all elements of national power. We plan to conduct a detailed assessment of the individual agency efforts from 2002 to the present as part of our broader engagement efforts and look forward to working closely with ODNI, Defense, State, USAID, and other agencies in assessing their plans and efforts to meet national security goals in Pakistan. State‘s comments assert that embassy and U.S. government efforts to date have resulted in a comprehensive strategy. We disagree and note in our report that, while the initiatives begun by Defense, State, and USAID are being coordinated by the embassy, they have not been fully approved or integrated into a formal, comprehensive plan. While we acknowledge that this effort is a step in the right direction toward implementing the 2003 national security strategy, the recommendations by the 9/11 Commission, and Congress, it is unclear whether the new approach will include all of the key elements of national power, such as intelligence, economic, and law enforcement support. ODNI‘s comments stated that they agreed with our finding that the United States had not met its national security goals in Pakistan‘s FATA and that countering the growth of terrorist safe havens requires all elements of national power. They disagreed, however, that the United States lacks plans to combat terrorism in the area. Our report does not state that the U.S. lacks individual plans; rather, we found that there was no comprehensive plan that integrated the combined capabilities of Defense, State, USAID, the intelligence community, and others to meet U.S. national security goals in Pakistan. 17

GAO-07-697, GAO-06-15, and GAO-03-519T.

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We also received technical comments from Defense and USAID, which we have incorporated throughout the report where appropriate. As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies of this report to interested congressional committees, to the National Security Advisor of the NSC, the Director of the NCTC, the Secretaries of State and Defense, and the Administrator of USAID.

Charles Michael Johnson Jr. Director, International Affairs and Trade Congressional Requesters The Honorable Howard Berman Chairman

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The Honorable Ileana Ros-Lehtinen Ranking Member Committee on Foreign Affairs House of Representatives The Honorable Gary Ackerman Chairman The Honorable Mike Pence Ranking Member Subcommittee on the Middle East and South Asia Committee on Foreign Affairs House of Representatives The Honorable John F. Tierney Chairman The Honorable Christopher Shays Ranking Member Subcommittee on National Security and Foreign Affairs Committee on Oversight and Government Reform House of Representatives The Honorable Tom Harkin The Honorable Robert Menendez United States Senate

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APPENDIX I: COMMENTS FROM THE DEPARTMENT OF STATE

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APPENDIX II: COMMENTS FROM THE DEPARTMENT OF DEFENSE

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APPENDIX III: COMMENTS FROM THE U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT

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APPENDIX IV: COMMENTS FROM THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

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In: Terrorism Issues, Policies and Legislation Editor: Barry J. Pourer, pp. 133-143

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Chapter 8

FOOD TERRORISM IN NIGERIA: FEARS, POSSIBILITIES AND ACTION Nwoko Kenneth Chukwuemeka Department of History and International Relations, Redeemers‘ University, Ogun State, Nigeria

ABSTRACT

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The September 11, 2001 attacks on the United States, the subsequent anthrax followup and the US embassy attacks in Kenya not only demonstrated the extent of the possibilities of terrorist attacks on both the weak and strong and even the most sophisticated security conscious of nations, but also the extent, methods and forms to which the perpetrators can employ to make their statement or achieve their objectives. These and other events around the world reflect the emerging typologies of the phenomenon in the contemporary times. The US Food and Drug Administration (FDA) recently raised fears of a high likelihood, in the future, of food terrorism or an incident of unintentional food contamination that would result in serious food borne illness that would affect a significant number of people. The question then is, since no country is isolated in international politics and bearing in mind the symbolic nature of most terrorist acts; what are the possibilities of such attacks on Nigeria‘s food supply and what are the emergency response capabilities of the country in such occurrences. The geopolitics of Nigeria and her status as the most populous black nation in the world as well as the inherent religious intolerance in her domestic politics in particular Maitasina riot, Bokoharam disturbances and Talakuta riot are all pointers to the precarious position of the country on the terrorist drawing board. This work analyzes the possibilities of food terrorism in Nigeria. It examines the factors that heighten the susceptibility of the country to such attacks and evaluates the country‘s emergency response capabilities in the face of such reality. The paper argues that just as other countries have learnt from the US experience, that Nigeria should also perfect her strategies to counter or manage such eventualities.



E-mail: [email protected]; Phone (+2348036127492).

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Nwoko Kenneth Chukwuemeka

Keywords: Anthrax, Contamination, Food, Terrorism, Attacks, Geopolitics.

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INTRODUCTION The phenomenon of terrorism is historical, however, the end of the Cold War brought with it new forms and dimensions of the phenomenon hitherto unimaginable. The breakthroughs in science and technology enhanced the sophistication and finesse with which the phenomenon is re-invented and heightened, especially as dialogue by other forms. Hans Morgenthau highlighted some of the elements of state power, which included geography, population, military might, economic strength and also food resource. (Morgenthau, 1960.) In contemporary times some of these elements are not as vital as they use to be due mainly to innovations in science and technology. In the contemporary international politics, the issue of food resources and strategic resource management are beginning to play vital roles in world politics and diplomacy as Osuntokun (2009:1) pointed out in his statement at the 64th session of the United Nations‘ General Assembly. This is not to suggest that food was not used as a political tool in time past.(Messer, et al, 1998:3) A nation that is sufficient in vital resources such as food production would be able to play international politics from a position of strength and to its advantage. Africa for example produces less than 10 percent of the total world food production yet over 10 percent of her population are engaged in agriculture. The point here is that despite her natural and human resources, Africa has continued to remain a dependent continent in every aspect including food production and supply, hence her susceptibility to international food crisis. Most African countries, south of the Sahara, share the largest ratio in food aid and support from food donor agencies and world bodies. Oftentimes, this is as a result of their inability to feed themselves caused by natural disasters such as draught and famine. Ethiopia‘s situation in the 1980s and that of Chad in the 1990s are still cases in point, while others are caused mainly by civil wars and the consequent refugee situations, such as the case of Somalia, Liberia and Sierra Leone. Also the crude method of agricultural production still extant in most African countries makes it impossible to achieve any large- scale production at least to meet internal needs. This underscores the significance of food as an element of strength and power in world politics as well as a weapon of asymmetric warfare in contemporary times.

FOOD AND TERRORISM ELSEWHERE Elsewhere, particularly in Europe and America where food production is optimal, thus creating self sustenance, and even surplus for exports, a particular fear has arisen; the fear of food terrorism. This was a concept seldom thought about until the September 11, 2001 attacks on the US by the Al-qaeda terrorist group which aroused the fears of bio-terrorist experts to the possibilities of a future target on the food supply system of the United States. According to the U.S. Department of Health and Human Services (DHHS) bio-terrorism is ―the use or threatened use of biological agents or toxins against civilians, with the objective of causing fear, illness, or death.‖(Bray and Konsynski, 2006:560) As in other typologies of terrorism, the role of fear is central to the event; if the sole intention is to cause death, there are much

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easier ways to cause a mass casualty situation. This is where food becomes an option. Food terrorism therefore can be defined as the use or threatened use of contaminated or poisoned food against civilians, with the objective of causing fear, illness, or death. Food terrorism, while rare, is not new to the United States. The case of the Indian Guru Bhagwan Shree Rajneesh almost a decade ago who infected 10 salad bars in the Dalles, Oregon, with the potentially deadly salmonella pathogen was only but one of such occurrences in the US. In that incident, it was reported that about 750 residents were sickened from the exposure. (Weese, 2002) Indeed, the confirmation of such fears on the heels of the Anthrax attack on the country despite over $100 million spent by the Food and Drug Administration in 2002 alone, on measures to safeguard the US food supply against bio-terrorist attacks, (Welcome Newsline, 2002) only demonstrated the fitness of this method as a terrorist weapon for political objectives. Several cases of food sabotage have occurred in the United States. Even before the September 2001 attacks, in 1984, a cult contaminated salad bars with salmonella to disrupt a local election.(Fabi, 2006) The incident resulted in 751 illnesses, including 45 hospitalizations as well as other reported cases of food poisoning and contamination. In a special report in 2003, the World Health Organization (WHO) warned of a possible contamination of food supplies by terrorist groups employing chemical or biological agents and advised countries to strengthen their surveillance to avoid death or the contracting of serious illnesses like cancer.(Kirby, 2003) Generally, food supply is especially vulnerable to an attack because of the broad range of biological and chemical agents that can be used as well as their easy accessibility without suspicion. However, this is predicated on the terrorist‘s belief that killing or harming the largest number of people could prove the simplest and most powerful way to make a political statement.(Weese,2002)

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NIGERIA’S FOOD PRODUCTION AND DISTRIBUTION Within the African sub-Saharan region, Nigeria stands out as the most populous nation, making her more susceptible to crisis arising from breaks in international food supply system and international food crisis and insecurity, caused either by natural factors such as that witnessed in 2008, or man-made factors such as the periodic bans on certain food items either prone to infections by contagious diseases or as a management strategy to curb the spread of such diseases or even diplomatic retaliatory measures. Furthermore, experience has shown that the influx of refugees into the country from neighbouring countries in the West African sub-region often times led to food shortages. All these heighten the politics of food production, importation and distribution in Nigeria, and a convenient means of getting at the largest number of people, rich or poor. Within the domestic food distribution chain, the inefficient food defence and safety measures allowed for the proliferation of unmonitored food outlets such as road side eateries, snack shops, bar and open air canteens, exposing them as easy medium for food contamination or poisoning by terrorists. Similarly, the circulation of fake and adulterated pharmaceutical products by some syndicates has not only jeopardized the life of patients, but has demonstrated the intractability of the phenomenon, the vulnerability of Nigerians and the enormous challenge facing the National Food, drug Administration and Control, (NAFDAC) (Owolabi,2008) It also suggests that ―no matter the funnel put on preventing impurities from the system, at the end of the day, the imperfections of our post colony would prevail‖

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(National Life, 2008:56) The case of the deaths of over forty children in Nigeria after the administration of a teething mixture called ‗My Pikin‘ did not suggest any terrorist connection but the devastation and the possibility of similar incident with terrorist motives. Similarly, the report of the poisonous Sallah meal that killed dozens of people in a Lagos suburb in 2009 ranks the least of such reports supporting the possibilities of food terrorism. At the international entry points, both land and sea, though there are some security measures in place to ensure that imported food material conformed to international standards, however, most of these measures oftentimes are circumvented by the unscrupulous business cartels in connivance with the very officials in charge of those stations, thus, allowing that possibility of terrorist infiltration of the food supply and industry of the country. Consequently, deliberate contamination of the nation's food supply is a real possibility and the economic and psychological implications of an attack on the food supply are frightening. Some foods are more susceptible to deliberate contamination than others, but there is no practical way one can eliminate the possibility of being affected. Food terrorism utilizes a vector that affects everyone.

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EXISTING TERRORISM MANAGEMENT STRATEGIES AND ORGANS IN NIGERIA Nigeria‘s attempt at handling the issue of terrorism generally is only at a snail speed. Almost a decade after terrorism became a global quagmire; the country‘s concern and awareness about the phenomenon are still budding. Currently, the Anti-terrorism, Economic and Financial Crimes Act set out to criminalize terrorism has still not been passed by the country‘s legislature. Until such laws are enacted, Nigeria does not have the judicial competence to deal with crimes committed by Nigerians outside the country, or foreigners within the country especially as relating to terrorist acts.(There is no criminalizing terrorism in Nigeria). Generally, the Nigerian police force, State Security Services (SSS), Immigration Department, and the Central Bank of Nigeria work in concert to share intelligence and prevent crimes. However, it was not until the September attacks on the United States in 2001 that measures and strategies put in place for effective monitoring were reviewed and enhanced, including tighter watch on financial transactions, supervision of border patrol, and heightened monitoring of suspected terrorist groups. Furthermore, there is also the Joint Intelligence Board, which exists as a consortium of Nigerian government organizations which focuses on curbing and preventing terrorism and terrorist activities in the country. However all these are general focused agencies on crime and terrorism. Indeed, while agencies such as the National Bio-safety Committee (NBC), National Agency for Food and Drug Administration Control (NAFDAC), Standard Organisation of Nigeria (SON) and other such agencies may be indirectly checking unsafe and unhealthy practices in the food, drug, beverages and drink industries, the truth remains that there are no direct and clear cut focus or mandate on prevention and management of food terrorism, neither are there terms of reference on food defense nor food safety. In a country with a record of ineptitude to the issue of monitoring and enforcement of international standards on the production or importation of food, drugs, drinks and beverages by agencies of government, the accessibility of such production or importation points by

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persons bent on infecting the food chain is unhindered. The unchecked proliferation of sachet water and unorthodox drug manufacturing and peddling in the country demonstrates the unfettered manner with which such centers could spring up without detection. Though attempts are made by these regulatory bodies mentioned above, the fact still remains that the needed resources; equipment, technological know-how and competent personnel to handle the job effectively are inadequate, thus, still allowing such little possibilities which could be taken advantage of by any terrorist group to achieve its objective. Apart from the inadequate resources to monitor security and safe practices, the security attitude and consciousness of the average Nigerian is still low. The public attitude therefore, about food safety and food defense is abysmally poor. This is not unconnected with the lack of awareness, general poverty situation in the country and the lack of trust and confidence on government agencies and parastatal which are largely seen as inefficient, corrupt and oftentimes conniving with unscrupulous foreign and local businessmen. (Daily Sun,2008:6) The reported terror alert in the Daily Sun of Thursday July 31, 2008, (Daily Sun,2008:6) reechoes the lack of trust not only on government establishments and their officials, but also the possibility of their connivance with foreign firm to undermine the country‘s internal security.

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NIGERIA AS TERRORISTS’ TARGET Policy makers and the food industry the world over are beginning to recognize the importance of guarding food supply from terrorism. Preparing for, protecting against, and planning responses to attempts to deliberately contaminate food with toxins and poisons with high mortality rates have become a national and a food industry priority. However, it should be noted here that any terrorist attack by any unscrupulous group may not be directly targeted at the Nigerian people, but against the interest of some super powers like the US, Great Britain or other countries perceived to be in the camp of the ‗enemy‘ by the terrorist group concerned. Indeed the terrorist attack on the American embassy in Kenya was not targeted at the Kenyan nation but the symbol of the US presence in that country. Nevertheless, the consequent psychological and economical impact was borne largely by the Kenyans. International terrorist organizations, including al Qaeda, Lebanese Hezbollah, and Egyptian terrorist groups, have continued to operate in Africa since the 2001 attacks largely to undermine US interests. Invariably, any means of and opportunity at making a symbolic statement would definitely be employed by these groups. Apart from targeting the United States‘ interest in Africa, there is the likelihood of attacks on those countries that are sympathetic to the US cause or serve strategic interest of the US. Indeed, Nigeria is the most important trade partner of the US in the West African sub region and one of the most important in Africa. With oil and natural gas constituting about 37% of Nigeria‘s GDP as at 2006, the country‘s export earnings of over $59 billion has petroleum in the lead with about 95% of the total earnings.( Bureau of African Affairs, July 2008) The United States constitutes, the biggest trade partner of Nigeria with about 52% share of the country‘s total petroleum export, (Bureau of African Affairs, July 2008) as the information below reveals; Nigeria is the United States' largest trading partner in sub-Saharan Africa, largely due to the high level of petroleum imports from Nigeria, which supply 11% of U.S. oil imports-Terrorism Issues, Policies and Legislation, Nova Science Publishers, Incorporated, 2011. ProQuest Ebook Central,

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Nwoko Kenneth Chukwuemeka nearly 46% of Nigeria's daily oil production. Nigeria is the fifth-largest exporter of oil to the United States. Total two-way trade was valued at $35 billion in 2007, a 17% increase over 2006. Led by machinery, wheat, and motor vehicles, U.S. goods exports to Nigeria in 2007 were worth $2.2 billion, up 25% from 2006. U.S. imports from Nigeria were $32.7 billion in 2007, up 17% from 2006. U.S. imports from Nigeria consisted predominantly of oil. However, rubber products, cocoa, gum arabic, cashews, coffee, and ginger constituted over $70 million of U.S. imports from Nigeria in 2007, up 45% from 2006. The U.S. goods trade deficit with Nigeria was $32.8 billion in 2007, a slight increase from 2006 data and representing the seventh-largest deficit for the United States with any country worldwide. Nigeria is currently the 50th-largest export market for U.S. goods and the 14th-largest exporter of goods to the United States.(Bureau of African Affairs, July 2008)

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Similarly, on global investment flow into Nigeria, the United States remains the largest foreign investor in Nigeria. In 2004 alone, the stock of U.S. foreign direct investment (FDI) in Nigeria was $2 billion although it went down to $874 million in 2005. U.S. FDI in Nigeria is concentrated largely in the mining and wholesale trade sectors.(Bureau of African Affairs, July 2008). The United States and Nigeria met in April 2008, under the existing Trade and Investment Framework Agreement (TIFA). This meeting was to advance the ongoing work program and to discuss improvements in Nigerian trade policies and market access. Among the issues raised were cooperation in the World Trade Organization (WTO), market access, export diversification, intellectual property protection and enforcement, commercial issues, trade capacity building and technical assistance, infrastructure, and investment issues. (Bureau of African Affairs, July 2008) These collaborations no doubt ranked Nigeria among the first class of countries that the United States considers as being of great importance to her relevance in international politics and an ally in the war against global terrorism as the information below reveals; The government [of Nigeria] has lent strong diplomatic support to U.S. Government counter-terrorism efforts in the aftermath of the September 11, 2001 terrorist attacks. The Government of Nigeria, in its official statements, has both condemned the terrorist attacks and supported military action against the Taliban and Al Qaida. Nigeria also has played a leading role in forging an anti-terrorism consensus among states in Sub-Saharan Africa.(Bureau of African Affairs, July 2008)

This is not only for Nigeria‘s geo-politics but also her position in Africa as the most populous country and a regional power. Beyond international terrorism, the internal dynamics of Nigeria‘s politics has also left her vulnerable to terrorist attacks. The brewing religious sectarianism can only result in extreme and fanatical methods of punishing the target population or section of the country considered ‗ungodly‘ by religious extremists. It is in this regards that recent developments in the northern part of the country especially would be discussed. In the early 1980s the rise of Islamic sects in the northern part of the country which led to the Maitasina riot was the earliest form of religious fanaticism that ever developed in the country. However, the influx of Islamic fundamentalists especially at the beginning of the US fight against the Al-Qaeda and other fundamentalists from Nigeria‘s contiguous states in the north such as Chad and Niger heightened the fears of possible religious violence in the

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country. This fear has been subsequently confirmed by the avalanche of religious conflicts that occurred especially in the northern part of the country. In particular, the recent religious fundamentalism of the Bokohara, an Islamic sect opposed to western education and the Talakuta riot are all pointers to the precarious position of the country on the terrorist drawing board. The appearance of Islamic leftist, the ‗Taliban‘, in 2005, was an indication of the infiltration of the country by Islamic fundamentalists. The fear is that with countries of North Africa fully infiltrated by Al-Qaeda Netwar (Nwoko, 2005:253) pattern of small cell groups linked with the Al-Qaeda, the possible development and importation of terror based on religion into Nigeria remains certain. The porosity of the Nigerian borders in the North, and the daily influx of the Al-Majeris who have been constantly used to ferment trouble by religious fundamentalists pose a serious treat to the country‘s security. The point here is that these groups can employ all means to get at their target including using the Al-Majeris to poison the eateries, food outlets and production points. This threat is further made real by the radicalisation of Islam in the North with the introduction of Shariah in several northern states of Nigerian. Similarly, it appears that aggressive missionary work in the north by Saudi Wahabis has played a decisive role in escalating the conflict between Christians and Muslims ; (Mair,2003) a conflict that has been recurrent at every slightest provocation. Such include the conflict following the aborted Miss World competition in 2002 and the riot arising from the caricature made in 2006 in a Danish Newspaper publication of Prophet Mohammed, (SAW) far away from Nigeria. Further down in the volatile Niger/Delta region, the menace posed by the militant groups has become worrisome. But more worrisome is the unpredictability of the means employable by this aggrieved group to drive home their agitation. The targeting of expatriates oil workers for kidnap, explosion of oil pipes and attacks on oil installation have been the terrorists weapons of making their statements. However, the recent turnaround towards killing and kidnapping of the local population especially the rich, has open a new vista on options available to the militants, wouldn‘t the contamination of public food in the region be attractive to them? Further, a closely related threat is that posed by imported food and food materials. Recently, there have been cases of food poisoning and contamination emanating from imported food around the world, especially from countries that are grappling with food safety problems. In late January, 2008, the case of the frozen dumplings which were contaminated with a highly toxic organophosphate pesticide, methamidophos, was reported in Japan. (BBC News, 2008) The Chinese dumplings which were laced with pesticide made at least 10 Japanese people ill. Japan's health minister believed that they were poisoned on purpose. (BBC News, 2008) Similarly the case of the contaminated Chinese wheat gluten that poisoned cats and dogs in the United States and led to a massive pet food recall (see ‗Imported food rarely inspected‘) was just another out of the many cases of food poisoning from source and an unsavory taste of what is to come. Recently the United States FDA detained nearly 850 shipments of grains, fish, vegetables, nuts, spice, oils and assorted imported foods for issues ranging from filth to unsafe food colouring to contamination with pesticides to salmonella.(see ‗Imported food rarely inspected‘) Yet, despite the huge efforts put into the fight as well as resources at their disposal, Mike Doyle, director of the University of Georgia's Center for Food Safety, still considers the FDA as not having ―enough resources or control over this situation presently."(see ‗Imported food rarely inspected‘) Consequently,

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there are fears that the US is still vulnerable to harm from abroad, where rules and regulations governing food production are often more lax than they are in the US. This suggests the huge cost of safeguarding the domestic population from threats of food poisoning from abroad. The question then is does Nigeria have the wherewithal to ensure that the food it imports is safe? The advancement in science and technology no doubt has improved global food production in the face of the ever increasing world population. However, some of the discoveries have also had their negative effects on the human population. The breakthroughs in the area of biotechnology especially in the use of molecular biology techniques to create crop plants known as genetically modified (GM) crops for human and animal consumption in recent times have come under very serious controversies. Environmentalists and Public health groups have raised alarm on the dangers associated with the use of genetically modified crops on the environment, human and animal health.(Whitman, 2008:1) Though these crops are modified in the laboratory to enhance desired traits such as increased resistance to herbicides or improved nutritional content, experts believe that their negative effects on the environment and on humans far more outweigh the positive outcomes. Recent studies about the effects of genetically-modified corn pollen on monarch butterfly caterpillar have raised further concerns on the health implications of genetic engineering. (Nature,199:214) These concerns were not unconnected with the potential human health impact: allergens, transfer of antibiotic resistance markers, and some other unknown effects. (Human Genome Information Project, 2007) Similarly, the potential environmental impact include; unintended transfer of transgenes through cross-pollination, and sundry unknown effects on other organisms such as soil microbes, and loss of flora and fauna biodiversity. (Human Genome Information Project, 2007) Indeed, in the face of the danger posed by this new technology, many countries are cautious about the importation and use of GM foods. In the peak of the Zimbabwean food shortage, attempts were made by food donor agencies to supply the country with such food materials which of course met total rejection by the Zimbabwean authorities. In like manner, both the Vatican (Biotechnology, 2000:7) and the Prince of Wales (1998) have expressed similar concerns about GM foods. The anxiety here is that these GM foods may find their way into Nigeria covertly or overtly without the authorities exercising adequate regulatory oversight in the rush to ensure food security in the face of the international food crisis.

Nigeria’s Emergency Response Capabilities The experience of Nigeria in emergency management overtime has been abysmally poor. The incidences of fire out breaks, collapse buildings and deadly diseases like bird flu have always broken the country‘s elasticity to manage such emergences. Oftentimes the relevant agencies such as National Emergency Management Agency (NEMA), the Nigerian Fire Services, Nigerian Civil Defence Corps and a host of other agencies have been found wanting in the discharge of their statutory responsibilities. In most cases these agencies have attributed their non performance to the lack of necessary resources such as equipment, skill personnel and the right motivation to perform optimally. Apart from these obvious inadequacies, the lack of well articulated and appropriate government policies to ensure national emergency preparedness, capacity building and training in the field of disaster and emergency management seem to be lacking. Hence, it is

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advisable that Nigeria should collaborate with international disaster and emergency experts such as the International Committee of the Red Cross ICRC, and its other affiliate bodies like the International Federation of the Red Cross and Red Crescent societies to fashion out a practicable blueprint for disaster management in the country.

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CONCLUSION The threat of Food terrorism in Nigeria no doubt is more real than imagined. The development of a genuine Nigerian variant of counter-terrorism strategies cannot be over emphasis. The country, of necessity however, needs to align with other countries especially the US, and international bodies to form a uniform response to the threat posed by food terrorists. Similarly, a functional anti-terrorist legislation is of great importance to the country especially to define the boundaries of what constitute terrorism and its dimensions. Sequel to it is a functional criminal justice system that would ensure transparency. However, both antiterrorist legislations and functional justice system would amount to little more than a symbolic value when lack of political and economic perspectives, social deprivation and injustice, political repression are virtually omnipresent in Nigeria. Indeed, marginalisation, insincerity of Nigeria‘s political class and leaders thrive as normal national dictum. Similarly, just as in any other part of Africa, (Cilliers, 2003:102) Nigeria should be made safer for its own people. This will also possibly make it safer for the Americans and a better way of aligning with them in the fight against international terrorism, a phenomenon which was exacerbated by the United States‘ policies and actions around the world. On a regional level, African countries under the aegis of the African Union should consolidate efforts already made in the fight against terrorism. In this regard, the established Centre for the Study and Research on Terrorism (ACSRT), in Algiers, Algeria,(Konaré, 2008) should be effectively utilized to boost the capacity of the African countries to prevent and combat terrorism within their individual states as well as strengthen their collective efforts and translate their commitments into concrete actions.

REFERENCES Background Note: Nigeria, Bureau of Public Affairs: Electronic Information and Publications Office Bureau of African Affairs, July 2008. At http://www.state.gov/r/pa/ei/bgn/ 2836. htm#history (accessed 20/09/08). Bray, David A. and Benn R. Konsynski, ‗Fighting Fear of a Bioterrorism Event with Information Technology: Real-World Examples and Opportunities,‘ in S. Mehrotra et al. (eds.): Intelligence and Security Informatics, 2006 Lecture Notes in Computer Science, Springer-Verlag Berlin Heidelberg 2006. Dumplings poisoned 'on purpose', BBC News, Tuesday, 5 February 2008, 12:34 GMT. Fabi, Randy, ‗FDA warns of 'food terrorism', Reuters, October 11, 2003, Globe Newspaper 2006 at http://www.boston.com/news/nation/articles/2003/10/11/fda_warns_of_ food_terrorism/

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‗Food Terrorism, Possible, But Not Likely, Expert Says.‘ Welcome Newsline Auburn, May 16, 2002 at http://www.aces.edu/dept/extcomm/newspaper/may16e02.htm (accessed 04/06/08). For example see, James Ojo, ‘Terror Alert: Reps Accuse Nigerdock of Aiding Terrorists‘ in Daily Sun, Thursday, July 31, 2008. For more see, ‗Imported food rarely inspected.‘ Updated 4/16/2007 at http://www.usatoday. com/news/nation/2007-04-16-imported-food_N.htm?csp=34 (accessed 09/06/08) ‗Genetically Modified Foods and Organisms -HGP ethical, legal and social issues- Human Genome Information Project, (Tuesday, July 24, 2007) at http://www.ornl.gov/sci/ techresources/Human_Genome/elsi/elsi.shtml(accessed 20/08/08). GMO Roundup Nature Biotechnology, Vol 18, Jan 2000. Jakkie Cilliers,(2003)‗Terrorism and Africa‘ African Security Review 12 No 4. Mair, Stefan, (2003) ‗Terrorism and Africa‘ African Security Review Vol 12 No 1. Messer, Ellen, Marc J. Cohen, and Jashinta D‘Costa, ‗Food from Peace Breaking the Links between Conflict and Hunger‘ (Food, Agriculture, and the Environment Discussion Paper 24, International Food Policy Research Institute, June 1998). Morgenthau, Hans,(1960) Politics among Nations the Struggle for Power ad Peace. New York: Alfred A. Knopf, 1960. National Life VoL 1 No 20 Saturday November 29- Friday December 5, 2008. Nigeria has yet not passed a law specifically Criminalizing terrorism, what exist are laws on crimes generally which may not allow for proper prosecution of terrorist offenders since terrorism and what constitute the act and punishment have not been clearly spelt out by the law. Osuntokun Jide was Nigerian first Ambassador and plenipotentiary to united Germany and currently a member, Presidential Advisory Council on Foreign Affairs. He issued this statement at the 64th session of the United Nations‘ General Assembly. Agenda Item: Eradication of Poverties and other Development Issues (Second Committee) New York, October 22, 2009. Owolabi, Titi, deputy director, inspectorate establishment, NAFDAC, speaking on ‗update on fake teething mixture‘ an African Independent Television programme Kakaki the African Voice, monitored in Lagos, on the 28th November, 2008. Professor Dora Akunyelu, Director General of NAFDAC appeared on the same programme the previous day on the same fears and concerns. Preventing and Combating Terrorism in Africa‘ speech by Alpha Oumar Konaré, Chairperson, AU Commission, available at http://www.africa-union.org/Terrorism /terrorism2.htm (accessed 20/08/08) See for example ‗Questions about Genetically Modified Organisms‘ an article by The Prince of Wales at http://www.princeofwales.gov.uk/speeches/agriculture_01061999.html) and ‗Seeds of Disaster‘ another article by The Prince of Wales available at (http://www. princeofwales.gov.uk/speeches/agriculture_08061998.html) Terror Alert Reps accuse Nigerdock of Aiding Terrorists‖, Daily Sun, Thursday, July 13, 2008. This new pattern network forms of terrorist organisation is fully described in Nwoko Kenneth, C. ‗The Nature and Dimension of Terrorism in the Post Cold War Palestine and Iraq‘ in Nigerian Journal of Policy and Development, Vol. 4, 2005.

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Transgenic pollen harms monarch larvae (Nature, Vol 399, No 6733, p 214, May 20, 1999). Also Assessing the impact of Cry1Ab-expressing corn pollen on monarch butterfly larvae in field studies (Proceedings of the National Academy of Sciences, Vol 98, No 21, p11931-11936, Oct 2001). Weese, Jean, Extension Food Scientist, 334-844-3269, Welcome Newsline Auburn, May 16, 2002 http://www.aces.edu/dept/extcomm/newspaper/may16e02.htm (accessed 04/06/08) Whiteman, Deborah B, ‗Genetically Modified Foods: Harmful or Helpful?‘ in Discovery Guides p.1 at http://www.csa.com/discoveryguides/gmfood/review.pdf (accessed 20/08/ 08). WHO issues alert on food terrorism‘ By Emma Jane Kirby, BBC Geneva correspondent, BBC NEWS world edition, Friday, 31 January, 2003, 21:10 GMT, at http://www.cfsan.fda. gov/~dms/rabtact.html (accessed 04/06/08)

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INDEX # 9/11, 1, 8, 13, 14, 24, 39, 42, 106, 107, 111, 112, 113, 114, 116, 119, 120, 121, 122, 124, 125 9/11 Commission, 13, 111, 112, 113, 114, 116, 119, 120, 121, 122, 125

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A abuse, 7, 35, 65 access, viii, 12, 18, 19, 23, 25, 29, 30, 32, 35, 46, 49, 51, 59, 67, 69, 70, 75, 76, 79, 89, 115, 138 accessibility, 135, 136 accommodation, 18, 21 accountability, 86, 122, 124, 125 acts of aggression, 29 adjudication, 78 administration, 63, 69, 76, 111, 113, 120, 121, 122, 123, 124 administrative, viii, 23, 25, 30, 31, 44, 48, 68, 115, 118, 122 advancement, 140 Afghanistan, viii, x, 7, 9, 24, 27, 28, 33, 34, 35, 38, 41, 50, 51, 53, 63, 73, 74, 109, 111, 114, 116, 117, 119, 120 Africa, ix, 93, 94, 105, 117, 134, 137, 138, 139, 141, 142 age, 98 agencies, ix, x, 8, 11, 31, 49, 52, 79, 86, 87, 88, 89, 90, 99, 109, 113, 115, 117, 120, 121, 122, 123, 124, 125, 134, 136, 137, 140

agent, 40, 42, 47, 83 agents, 41, 44, 46, 49, 80, 83, 116 aggression, 29 agriculture, 114, 134, 142 aid, 31, 32, 51, 54, 62 air, 124 Air Force, 118 Al Qaeda, viii, 24, 26, 27, 28, 33, 35, 37, 38, 39, 41, 42, 43, 53, 54, 63, 65, 66, 83, 110, 111, 113, 116, 117, 119, 120 Alabama, 76 Algeria, 141 aliens, viii, 23, 25, 28, 30, 34, 38, 40, 44, 45, 46, 49, 50, 55, 56, 57, 58, 62, 67, 72, 73, 74, 80, 82 allergens, 140 allies, 32, 35, 68, 124 alternative, 26, 37, 40, 43, 60, 65, 71 alternatives, 43, 58 amendments, 116 annual review, 44 anomalous, 58 anthrax, x, 133 antibiotic, 140 antibiotic resistance, 140 anxiety, 140 appellate review, 46, 72 appropriations, 106 Arabian Peninsula, 86 ARB, 68 ARBs, 68 ARC, x, 101 Argentina, x, 101, 102, 104, 106, 107 argument, 26, 36, 40, 52, 55

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Index

Arizona, 48 armed conflict, 6, 8, 34, 38, 41, 50 Armed Forces, 8, 31, 36, 47, 54, 62, 66, 80, 81, 82, 83 arms sales, 103 army, 30, 44, 80, 112, 118 arrest, 34, 104 arrests, 116 Asia, 126 asian, 124 assassination, 117 assessment, 54, 65, 74, 117, 123, 124, 125 assets, 96, 103 assignment, 113 assimilation, 116 Associate Justice, 76 asylum, 71 attacks, ix, x, xi, 24, 39, 41, 42, 62, 65, 86, 87, 88, 111, 117, 119, 120, 133, 134, 136, 137, 138, 139 Attorney General, 26, 39, 43, 62, 65, 66 audit, 21, 112 authorities, 7, 33, 38, 41, 62, 140 authority, viii, ix, 1, 2, 4, 6, 7, 8, 12, 16, 17, 18, 19, 21, 24, 26, 27, 28, 31, 33, 34, 36, 37, 39, 40, 43, 48, 49, 50, 55, 59, 62, 63, 64, 66, 69, 72, 73, 75, 76, 77, 78, 81, 82, 93, 115, 120, 124 availability, 26, 35, 53, 57 awareness, 89, 106, 136, 137 B back, 26, 33, 39, 43, 64 background information, 2 Bahrain, 95 bail, 64 Bangladesh, 94 bankruptcy, 76, 78 Barack Obama, viii, 24, 26, 61 barriers, 4, 87 base, 2, 3, 45, 56, 82, 88, 104, 111, 117 behavior, 49, 87 beverages, 136 Bhutto, Benazir, 117 Bin Laden, 35

binding, 34, 43 biodiversity, 140 biological weapons, x, 101 biotechnology, 140 bipartisan, 111, 121 bird flu, 140 blockades, 116 blueprint, 141 bodily injury, 83 bonds, 96 border control, 102 border security, 102, 107, 118 bounds, 65 Brazil, x, 101, 104, 106, 107 breaches, 48 Britain, 98, 137 brothers, 105 Buckley v. Valeo, 77 budding, 136 Bush Administration, viii, 24, 27, 28, 33, 44, 45, 63, 69, 78 Bush, President, 24, 25, 33, 38, 45, 82, 107, 121, 123 business model, 94 business processes, 91 businesses, 19 C campaigns, 4 Canada, 112 cancer, 135 capacity building, 123, 138, 140 cargoes, 94, 97 Caribbean, 102, 106 Caribbean nations, 102, 106 caricature, 139 cash, 118 CAT, 44 cell, 139 CENTCOM, 111, 112 Central Intelligence Agency (CIA), 44, 49, 87, 88, 90, 111, 112, 122 certification, 21, 83 Chad, 134, 138 chain of command, 32

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Index challenges, viii, 2, 7, 9, 16, 23, 24, 25, 27, 34, 36, 44, 47, 51, 61, 62, 64, 65, 66, 67, 68, 69, 70, 71, 75, 80, 81, 111 chemical, x, 101, 135 chemicals, 96 Chicago, 77 Chief Justice, 29, 76 children, 136 China, 33, 53, 54, 95 Christians, 139 circulation, 19, 135 citizens, x, 4, 12, 14, 24, 28, 33, 42, 49, 50, 66, 74, 81, 82, 101, 103, 115, 116 citizenship, 29, 31, 35, 50, 58, 62, 83, 103 city, 39, 48 civil action, 29, 47 civil society, 124 civil war, 41, 134 civilian, 26, 33, 41, 42, 43, 65, 66, 82, 117 classes, 65 classification, 32 classified evidence, 67 clients, 51 close relationships, 105 closure, vii, viii, 1, 2, 3, 4, 6, 24, 27, 61, 62 CMCR, 46 coal, 96 Coalition Support Fund (CSF), 111, 118 cocoa, 138 coercion, 32, 44, 45, 79, 80 coffee, 138 Cold War, 19, 105, 134, 142 collaboration, 113, 122 collateral, 59, 64, 68, 82 Colombia, x, 101, 102, 103, 105, 106 Combatant Status Review Tribunal (CSRT), viii, 23, 27, 30, 31, 32, 35, 40, 46, 47, 51, 52, 53, 54, 55, 58, 59, 60, 65, 67, 68, 69, 71, 72, 79, 80, 81, 83 commerce, ix, 93, 96, 99, 100 commercial, 13, 94, 97, 103, 138 Committee on Intelligence, 122 Committee on Oversight and Government Reform, 126 commodity, 98 common carriers, 18, 21

147

common law, 64 communication, 17, 51 communities, 104 community, ix, 19, 86, 87, 88, 89, 90, 91, 93, 94, 113, 114, 123, 124, 125 compensation, 77 competence, 136 competing interests, 43 competition, 139 compliance, 8, 37, 70 components, 87, 114, 125 composition, 76 computation, 69 computer, 13, 40, 103 concrete, 141 confidence, 137 confinement, 36, 46, 47, 51, 60, 61, 66, 70, 82 conflict, 6, 7, 8, 34, 36, 38, 39, 40, 41, 43, 47, 50, 52, 58, 66, 78, 139 conformity, 38 congress, vii, viii, ix, x, 1, 2, 3, 4, 9, 11, 18, 20, 21, 22, 23, 24, 25, 26, 27, 30, 33, 34, 36, 37, 38, 39, 40, 42, 45, 47, 48, 50, 52, 58, 59, 63, 64, 65, 66, 67, 75, 76, 77, 78, 79, 80, 82, 83, 93, 100, 101, 103, 104, 105, 106, 107, 109, 110, 111, 113, 114, 116, 119, 120, 121, 122, 125 consciousness, 137 consensus, 138 consent, 61, 107 constitution, 2, 25, 29, 30, 34, 37, 39, 40, 43, 44, 45, 46, 48, 56, 57, 58, 62, 63, 64, 65, 66, 67, 68, 70, 71, 73, 75, 76, 77, 78, 81 constitutional issues, 49 constitutional law, 73, 78 constitutional principles, 76 constraints, 59, 67 construction, 124 consumption, 140 contamination, xi, 133, 135, 136, 139 contractors, 80 control, 29, 30, 35, 57, 58, 65, 74, 77, 79, 119, 139 control measures, 107 controversies, 2, 140

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148

Index

conversations, 16, 17 conviction, 60, 76 cooperation, x, 101, 102, 103, 106, 107, 110, 113, 122, 138 coordination, 31, 61, 113, 121, 123, 124 corn, 140, 143 correlation, 90 corruption, 102, 103 cost, ix, 93, 94, 95, 100, 110, 140 costs, 74 cotton, 98 counsel, 30, 35, 39, 44, 51, 52, 53, 59, 67, 69, 71, 72 counterterrorism, ix, 21, 62, 86, 87, 102, 103, 105, 106, 107, 120, 123 Court of Appeals, 26, 33, 35, 36, 39, 45, 46, 50, 56, 68, 80, 81, 82 courts, viii, 23, 24, 25, 28, 29, 30, 32, 33, 34, 36, 37, 38, 39, 44, 45, 46, 47, 48, 49, 50, 56, 57, 60, 64, 65, 66, 67, 69, 70, 72, 75, 76, 77, 78, 79, 82, 116 courts-martial, 36, 37, 38, 82 court-stripping, 36, 56, 59 covering, 112, 124 credit, 77 crime, 40, 70, 136 crimes, 24, 25, 28, 35, 56, 60, 66, 116, 136, 142 criminal justice system, 141 critical infrastructure, 107 criticism, 66, 103 crop, 140 crude oil, 94, 95 Cuba, vii, viii, x, 1, 2, 5, 6, 8, 23, 24, 28, 29, 31, 32, 46, 57, 68, 72, 79, 82, 101, 103, 105, 106 cure, 38 curium, 52 currency, 104 Customs and Border Protection, 85 D damages, 83, 97 danger, 99, 140 database, 90

dating, 118 death, 45, 83, 134, 135 deaths, 119, 136 decisions, viii, 23, 25, 30, 33, 34, 36, 38, 46, 52, 56, 65, 68, 77, 80, 81, 88 defects, 35, 38 defence, 135 defendants, 12, 75, 81 defense, 44, 136, 137 Defense Authorization Act, 80 deficiencies, 59, 67 deficit, 138 definition, 35, 40, 41, 42, 49, 50, 54, 62, 65, 69, 78, 79, 80, 81, 83 degrading, 25, 38, 44, 79, 81, 83 Delta, 139 denial, 9, 56 Department of Defense (DOD), 5, 6, 25, 28, 30, 31, 36, 39, 44, 52, 80, 99, 111, 129 Department of Health and Human Services, 134 Department of Justice (DOJ), 21, 27, 62, 63 Department of State, 110, 111, 119, 127 Department of Transportation, ix, 93, 98, 99 deprivation, 141 derivatives, 96 destruction, 83, 94, 117 Detainee Treatment Act, viii, 23, 25, 27, 32, 44, 46, 68 detainees, vii, viii, 1, 2, 3, 4, 5, 6, 7, 8, 9, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 38, 44, 45, 46, 47, 49, 51, 52, 55, 56, 58, 60, 61, 62, 63, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 78, 79, 80, 81, 82, 83 detection, 106, 137 detention, vii, viii, 1, 2, 3, 4, 5, 6, 7, 9, 23, 24, 25, 26, 27, 28, 30, 32, 33, 34, 35, 37, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 53, 56, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 78, 79, 80, 82, 83 deterrence, ix, 93 development assistance, 110, 112, 113, 116, 118, 119, 120, 121, 123, 124 deviation, 38

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Index dignity, 7, 38 diplomacy, 110, 113, 120, 123, 124, 134 diplomatic engagement, ix, 93 direct investment, 138 directives, 2 Director of National Intelligence, 62, 83, 109, 111, 112, 114, 122, 125, 131 disability, 77 disaster, 140 disclosure, 12, 20, 21, 66, 69 discretionary, 45 diseases, 135, 140 disposition, vii, 1, 2, 3, 9, 30, 55 distribution, 126, 135 district courts, 29, 47, 76 District of Columbia, viii, 9, 23, 25, 45, 46, 61, 69, 76, 80, 81, 82 District of Columbia Circuit, 45, 46, 76, 80 diversification, 138 DOC, 64 dogs, 139 DOJ OIG, 21 donors, 112, 123 draft, 114, 116, 125 draught, 134 drawing, xi, 133, 139 drug trafficking, 102, 104, 106 drugs, 136 due process, 34, 35, 40, 42, 43, 50, 59, 60, 62, 67, 68, 71, 76, 78 Due Process Clause, 62, 73 duration, 33, 58, 59, 74 dynamics, 138 E earnings, 137 economic crisis, 96, 100 economic development, 123 economic growth, 123 Ecuador, 102, 103 education, 123, 139 El Salvador, 102, 106 elasticity, 140 election, 135 electronic communications, 18

149

Electronic Communications Privacy Act, 16 electronic surveillance, vii, 11, 12, 13, 15, 16, 17, 18, 83 embargo, 103 embassy, x, 110, 112, 113, 114, 116, 117, 119, 120, 122, 123, 124, 125, 133, 137 emergency, xi, 55, 99, 133, 140 emergency management, 140 emergency preparedness, 140 emergency response, xi, 133 employees, 49, 62 employment, 123 empowered, 31, 115 enemy combatan, viii, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62, 63, 65, 66, 68, 69, 71, 72, 73, 74, 75, 78, 79, 80, 81, 82, 83 enemy combatants, viii, 2, 5, 6, 7, 8, 9, 23, 24, 26, 28, 30, 33, 34, 35, 39, 40, 42, 43, 44, 45, 46, 47, 49, 50, 51, 55, 56, 57, 58, 60, 63, 65, 66, 68, 71, 72, 73, 74, 75, 79, 80, 82 enforcement, 12, 34, 48, 58, 102, 106, 107, 110, 113, 116, 119, 120, 121, 124, 125, 136, 138 engagement, 53, 125 engineering, 140 England, 64 environment, 140 environmental impact, 140 EPA, 56 equipment, 97, 106, 118, 124, 137, 140 ETA, 105 ethnicity, 76 Europe, 117, 124, 134 European Union, 95 evidence, vii, 6, 11, 12, 30, 31, 32, 35, 40, 41, 42, 43, 44, 45, 51, 52, 54, 59, 60, 67, 68, 69, 72, 79, 81, 82, 112, 116 evidentiary standards, 42, 43 Ex parte Quirin, 41 exchange rate, 96 exclusion, 73, 98 exculpatory evidence, 59, 60, 67, 69 execution, 69

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executive branch, 48, 50, 78, 110, 113, 120 executive order, viii, 2, 8, 24, 27, 48, 49, 61 executive orders, vii, 1, 2, 9 executive power, 39, 77 exercise, 12, 19, 30, 34, 39, 48, 76, 77, 78 expertise, 62, 87, 90 export market, 138 exporter, 138 exports, 134, 138 exposure, x, 94, 135 extracts, 89 extremism, 117 extremists, x, 87, 88, 109, 111, 138

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F facilitators, 102 failure, 35, 45, 59, 70, 83, 86, 87, 88, 89, 90 fairness, 52 faith, 21, 44, 77 false statement, 39 famine, 134 fanaticism, 138 fauna, 140 FDA, xi, 133, 139, 141 fear, 47, 117, 134, 139 fears, xi, 133, 134, 138, 140, 142 Federal Bureau of Investigation (FBI), 2, 13, 14, 18, 19, 20, 21, 85, 89 federal courts, viii, 23, 24, 25, 32, 33, 36, 37, 45, 56, 60, 64, 69, 70, 72, 75, 76, 77, 78, 79 federal funds, 4, 5 federal government, ix, 77, 93, 100 federal law, 34 Federal Register, 24, 27, 28, 61 Fifth Amendment, 35, 76, 77 fighters, 111 finance, 35 financial, ix, x, 18, 39, 93, 94, 96, 97, 101, 102, 103, 105, 106, 107, 136 financial institutions, 106 financial records, 18 financial system, 40 fines, 116 firearms, 19

First Amendment, 18, 19, 21, 70 FISA, vii, viii, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 flexibility, vii, 11, 13, 15, 38, 44 flight, ix, 85, 86, 87, 88 flora, 140 flora and fauna, 140 flow, 37 fluctuations, 96 food, xi, 8, 133, 134, 135, 136, 137, 139, 140, 141, 142, 143 food chain, 137 food industry, 137 food poisoning, 135, 139 food production, 134, 135, 140 food safety, 136, 137, 139 food security, 140 force, 1, 2, 24, 32, 41, 42, 55, 95, 122, 136 foreign affairs, 4 foreign direct investment (FDI), 138 foreign exchange, 96 foreign intelligence, 11, 12, 15, 16, 19, 20, 35 Foreign Intelligence Surveillance Court (FISC), 83 foreign policy, 31 Fourteenth Amendment, 44, 48 Fourth Amendment, 12, 16, 17, 18, 19, 48 fragments, 88 fraud, 39, 104, 105 freezing, 103 friction, 74 fruits, 12 full capacity, 124 functional approach, 57, 74 funding, 42, 106, 107, 112, 113, 114, 118, 120, 122, 123, 124, 125 funds, 4, 5, 6, 74, 104, 106, 118, 123 G GAO, x, 109, 110, 112, 113, 115, 118, 121, 122, 125 GDP, 137 generation, 59 Geneva, 25, 28, 30, 32, 34, 36, 37, 38, 47, 48, 49, 50, 81, 83

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Index Geneva Convention, 7, 25, 28, 30, 33, 34, 36, 37, 38, 47, 48, 49, 50, 81, 83 geography, 134 Georgia, 5, 139 Germany, 56, 74, 142 Gerrymandering, 76 global scale, vii Global War on Terror (GWOT), 38, 39, 42, 50, 78 goals, x, 42, 109, 110, 111, 112, 113, 114, 116, 117, 118, 120, 122, 123, 124, 125 god, 104 goggles, 124 governance, 57 government, viii, 24, 25, 26, 27, 29, 31, 32, 33, 34, 35, 36, 37, 39, 40, 41, 42, 43, 45, 48, 49, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62, 64, 66, 67, 68, 69, 70, 71, 72, 74, 75, 77, 80, 86, 87, 88, 90, 91, 110, 111, 112, 113, 114, 116, 117, 118, 119, 122, 123, 124, 125, 136, 137, 138, 140 governments, 14, 94, 102, 104, 105, 107, 124 grains, 139 grand jury, 26, 39, 40 grants, 28, 42, 76 Great Britain, 98, 137 greed, 41, 43 grounding, 97 groups, viii, ix, 24, 27, 50, 63, 86, 89, 135, 136, 137, 139, 140 growth, 123, 125 Guantanamo, v, vii, viii, 1, 2, 3, 4, 5, 6, 7, 8, 9, 23, 24, 25, 27, 28, 29, 31, 32, 33, 34, 35, 36, 44, 45, 46, 47, 49, 55, 56, 57, 58, 60, 61, 62, 63, 67, 68, 69, 70, 71, 72, 73, 74, 75, 78, 79, 82, 83 Guantanamo Bay, vii, viii, 1, 2, 4, 5, 6, 8, 23, 24, 25, 27, 28, 31, 32, 33, 44, 45, 46, 49, 55, 61, 68, 69, 72, 78, 79, 82 guidance, 87, 122, 125 guidelines, 24, 51 guilt, 64

H habeas corpus, viii, 23, 24, 25, 28, 30, 33, 36, 37, 39, 44, 45, 46, 47, 49, 50, 51, 52, 53, 57, 58, 59, 63, 64, 65, 68, 70, 74, 75, 77, 80, 81, 82, 83 Habeas corpus, 81 hacking, 40 Hamas, 104 handling, 35, 51 harm, 42, 140 Hawaii, 58 health, 96, 123, 139, 140 Health and Human Services (HHS), 134 hearing, 31, 40, 52, 60, 66, 68, 69, 70 heart, 41, 67 heart attack, 102 hemisphere, 102, 107 Hezbollah, x, 101, 103, 104, 137 hiring, 96 history, 12, 28, 35, 36, 40, 57, 58, 105, 141 Homeland Security, 62, 83, 120 hospitals, 115 host, 74, 78, 140 hostile acts, 41 hostilities, 8, 24, 28, 29, 31, 32, 35, 36, 38, 50, 53, 54, 59, 62, 63, 66, 78, 79, 80, 81, 83 house, x, 4, 19, 28, 45, 80, 85, 86, 89, 99, 101, 103, 104, 122, 126 House of Representatives, 46, 126 human, 86, 90, 134, 140 human health, 140 human resources, 134 Hunter, 46, 80 I identification, 15, 117 identity, 15, 17, 103 Illinois, 26, 39, 43 immigration, 4, 6, 13, 72, 73, 83, 105 immunity, 67 impeachment, 76 implementation, 44, 48, 120, 123, 124

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Index

imports, 137, 140 imprisonment, 45 improvements, 113, 124, 138 impurities, 135 inadmissible, 35, 72 inclusion, 89 income, 114 independence, 53 India, 94 Indiana, 41 indication, 78, 139 indicators, 90, 114, 118 indigenous, 116 individuals, vii, ix, 5, 6, 11, 12, 13, 14, 16, 17, 27, 34, 35, 38, 41, 50, 62, 75, 78, 81, 83, 86, 104, 107 Indonesia, 94 industries, 136 industry, ix, 93, 94, 95, 96, 98, 100, 136, 137 information sharing, 87, 88 information technology, 87 infrastructure, 4, 102, 107, 114, 117, 123, 124, 138 inhuman, 25, 44, 79, 81, 83 injunction, 75 injury, 17, 38, 56, 83, 94, 99 inmates, 8 innocence, 64 INS, 57, 64, 77 insecurity, 135 institutions, 102, 106, 123, 124 instruments, 120 insulation, 36 insurgency, 104, 106 integration, 90, 120, 124 intellectual property, 138 intelligence, 7, 8, 12, 15, 16, 18, 19, 20, 35, 38, 44, 52, 54, 60, 62, 66, 86, 87, 88, 90, 102, 107, 110, 113, 114, 116, 117, 119, 120, 121, 122, 124, 125, 136 intelligence gathering, 60 Intelligence Reform and Terrorism Prevention Act, 14, 87, 111, 113 intentions, ix, 86 interagency coordination, 113, 121 interest rates, 96

interference, 17 international law, 2, 31, 34, 38 international relations, 3 international standards, 136 international terrorism, vii, 11, 12, 13, 14, 15, 18, 78, 83, 138, 141 international trade, ix, 76, 93, 94, 98 interrogation methods, vii, 1, 81 interrogations, 2, 8, 38, 49, 80 interviews, 115 intrusions, 19 investment, 96, 138 Iran, x, 95, 101, 103, 105 Iraq, 142 iron, 96, 98 Islam, 139 Islamabad, 122 Islamic, 53, 117 issues, vii, 1, 2, 3, 9, 26, 30, 39, 49, 52, 55, 56, 61, 62, 66, 67, 70, 74, 75, 102, 112, 113, 118, 138, 139, 142, 143 J JAG, 31 Japan, 112, 124, 139 Joint Chiefs, 62 judge, 24, 26, 31, 33, 35, 40, 46, 53, 55, 61, 66, 69, 75, 81 judges, viii, 23, 25, 26, 31, 41, 42, 60, 61, 69, 72, 75 judgment, 26, 33, 37, 39, 43, 47, 50, 55, 60, 72, 73, 80 judicial branch, 48, 77 judicial power, 77 Judiciary, 39, 44, 66, 76, 77, 81 Judiciary Committee, 39, 44, 66, 81 jurisdiction, viii, 9, 23, 24, 25, 26, 28, 29, 30, 31, 33, 34, 36, 37, 38, 39, 40, 41, 44, 45, 46, 48, 50, 53, 56, 57, 61, 64, 65, 66, 68, 70, 75, 76, 78, 80, 81, 82, 83 jury, 26, 39, 40 justice, 46, 71, 79, 81, 141 Justice Department, 33, 49 justification, 64, 69

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Index K

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Kenya, ix, x, 93, 95, 97, 133, 137 kidnapping, 102, 139 kill, 105, 110, 119, 140 killing, 135, 139 Korea, 103, 105

limitation, 75 limitations, 59, 65, 67, 76 literacy, 114 litigation, 27, 28, 30, 31, 44, 52, 62, 72 living conditions, viii, 23, 25, 44 location, 35, 74, 117 Los Angeles, 67

L

M

lakes, 97 land, 37, 136 language, 36, 38, 41, 44, 46, 47, 48, 49, 58, 63, 75, 78 laptop, 13, 14 larvae, 143 Latin America, v, vii, x, 101, 102, 103, 105, 106, 107 law, 24, 25, 29, 31, 33, 34, 37, 38, 41, 42, 46, 48, 59, 63, 64, 65, 67, 68, 70, 71, 72, 73, 75, 77, 78, 80, 82, 110, 113, 115, 116, 119, 120, 121, 124, 125 law enforcement, 12, 102, 106, 107, 110, 113, 116, 119, 120, 121, 124, 125 laws, 6, 14, 18, 29, 30, 37, 38, 45, 46, 63, 64, 68, 73, 136, 142 lawyers, 25 lead, 14, 121, 137 leadership, 87, 117 Leahy, 14 Lebanon, 104 legal issues, vii, 1, 2, 26, 62, 66 legal systems, 38 legality, viii, 24, 51, 53, 64, 67, 71, 82 legislation, 2, 3, 4, 7, 9, 27, 39, 45, 48, 65, 67, 77, 78, 79, 82, 102, 110, 111, 112, 113, 120, 122, 141 legislative authority, 76 legislative proposals, vii, 1, 3, 4, 7, 9, 14, 27, 79 liberation, 64 Liberia, 134 liberty, 34, 35, 57, 68, 73 light, 13, 32, 35, 52, 53, 55, 60, 106 likelihood, xi, 74, 133, 137

machinery, 97, 138 mail fraud, 105 majority, 24, 29, 30, 36, 38, 40, 56, 72, 73, 74, 88, 95, 116, 118 man, 135 management, 61, 69, 106, 122, 134, 135, 136, 140, 141 mandates, 38, 67, 122 manufactured goods, 96 manufacturing, 94, 137 marginalisation, 141 market, 138 market access, 138 mass, 117, 135 materials, 139, 140 matter, 52, 62, 65, 71, 78, 114, 135 measures, 39, 48, 53, 72, 78, 124, 135, 136 media, 95, 97 mediation, 105 medical, 8, 19, 105 Medicare, 105 membership, 53 Mexico, 102, 106 Miami, 105 Middle East, 102, 117, 126 militant, 119 military, viii, ix, x, 2, 5, 6, 7, 8, 9, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 53, 56, 58, 60, 62, 66, 68, 72, 73, 74, 75, 79, 80, 81, 82, 83, 93, 95, 97, 102, 104, 106, 109, 110, 111, 112, 113, 116, 117, 118, 119, 120, 121, 122, 123, 124, 134, 138 Military Commissions Act (MCA), viii, 23, 24, 25, 26, 27, 28, 33, 34, 39, 40, 41, 45,

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46, 47, 48, 49, 50, 53, 56, 57, 59, 60, 65, 70, 71, 75, 79, 80, 81 Military Commissions Revision Act, 80 military courts, 66 Military Order, 38, 45 military tribunals, 25, 36, 37 mining, 138 mission, 42, 66, 74, 87, 88, 89, 121 missions, 39, 45, 74, 80 modifications, xi, 16 molecular biology, 140 money laundering, 104, 106 mortality, 137 mortality rate, 137 motion, 34, 51, 53, 55, 69 motivation, 140 motives, 136 Muslims, 139

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N Nash, 70 nation, xi, 28, 42, 48, 111, 133, 134, 135, 136, 137, 141, 142 National Counterterrorism Center (NCTC), 87, 88, 89, 90, 109, 110, 111, 112, 113, 114, 120, 121, 122, 124, 126 National Defense Authorization Act, 79, 80, 82 national emergency, 99, 140 National Intelligence Estimate (NIE), 110, 111, 113, 116, 117 national security, x, 2, 6, 18, 21, 32, 35, 39, 43, 66, 82, 83, 87, 101, 104, 109, 110, 111, 112, 113, 114, 116, 117, 118, 119, 120, 122, 124, 125 National Security Council (NSC), 109, 110, 111, 112, 113, 120, 121, 122, 126 national security letters (NSL), 18 National Security Strategy, 111 National Strategy, 110, 111, 113, 121 nationality, 32 natural disaster, 134 natural gas, 137 Navy, 31, 32, 68, 118 negative consequences, 116

negative effects, 140 negotiation, 48 Netherlands, 112 network, 142 neutral, 24 New York,39 Nicaragua, 107 Nigeria, v, xi, 88, 94, 133, 135, 136, 137, 138, 139, 140, 141, 142 No Fly, 87, 90 non-citizen, 24, 25, 57, 58, 71, 72 nongovernmental, 112, 124 nongovernmental organization, 112, 124 normal, 42, 43 North Africa, 139 North Korea, 103, 105 O OAS, 106, 107 Obama, vii, viii, 1, 2, 3, 8, 9, 24, 26, 27, 43, 55, 61, 62, 63, 71, 72, 74, 75 Obama Administration, viii, 24, 27, 62, 63 Obama, Barack, viii, 24, 26, 61 Obama, President, vii, 1, 2, 3, 8, 9, 27, 43, 74 objectives, x, 133, 135 obligation, 70 obligations, 31, 48 obstacles, 58 oceans, 98 offenders, 37, 142 Office of the Inspector General, 21 officials, x, 26, 27, 35, 43, 61, 69, 70, 95, 101, 102, 103, 104, 110, 112, 113, 116, 117, 119, 122, 123, 136, 137 oil, ix, 93, 94, 95, 96, 137, 139 oil production, 138 Oklahoma, 5 Operation Enduring Freedom, 118 operations, 2, 8, 31, 79, 87, 106, 110, 111, 113, 118, 119, 122, 124 opportunities, ix, 86, 88 order, ix, 86 Osama Bin Laden, 35 oversight, 81, 100, 111, 123, 140 overtime, 140

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P Padilla, Jose, 41 Pakistan, v, vii, x, 51, 53, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125 Pakistani, 111, 112, 115, 116, 117, 118, 119, 120, 123, 124 Panama, 102, 107 Paraguay, x, 101, 102, 104, 106, 107 parallel, 58 paramilitary, 110, 113, 116, 119, 123 pardons, 48 parole, 6, 69 participants, 96 Patriot Act, 19, 40 peace, 102 penalties, 45, 66 pension, 77 Pentagon, viii, 23, 30, 32, 95 per capita, 114 per capita income, 114 performance, 140 periodic, 68, 125 permit, vii, viii, 11, 15, 24, 27, 35, 49, 65, 68, 74, 78 perpetrators, x, 2, 133 Peru, 104, 106, 107 pesticide, 139 petitioners, viii, 24, 29, 34, 51, 52, 55, 56, 57, 58, 59, 60, 69, 71, 72, 73, 74 petroleum, 137 pharmaceutical, 135 piracy, vii, ix, x, 93, 94, 95, 96, 97, 98, 99, 104 planning, 50, 88, 114, 120, 121, 123, 125, 137 plants, 140 play, 78, 120 plurality, 38, 40, 42, 50, 58, 78 poison, 139 police, 104, 136 policy, x, 31, 74, 78, 79, 94, 97, 98, 99, 100, 105, 106 policymakers, ix, 93

155

political leaders, 116 political parties, 115 politics, xi, 133, 134, 135, 138 pollen, 140, 143 pollination, 140 poor, 114, 135, 137, 140 population, 66, 104, 114, 116, 117, 134, 138, 139, 140 porosity, 139 poverty, 114, 137 poverty line, 114 power, 33, 34, 37, 39, 41, 42, 48, 49, 55, 63, 64, 65, 72, 73, 75, 76, 77, 78, 110, 113, 114, 116, 119, 120, 121, 122, 123, 124, 125, 134, 138 powers, 37, 39, 48, 57, 73, 76, 77, 78, 83 precedent, 43, 75 precedents, 42 preparation, 14, 69, 83 preparedness, 140 preservation, 71 president, vii, viii, ix, x, 1, 2, 3, 4, 6, 8, 9, 12, 23, 24, 25, 26, 27, 28, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 48, 49, 50, 59, 61, 62, 63, 74, 76, 77, 78, 79, 81, 82, 83, 85, 99, 101, 103, 104, 107, 115, 116, 119, 120, 121, 122, 123 President Bush, 24, 25, 33, 38, 45, 82, 121, 123 President Obama, vii, 1, 2, 3, 8, 9, 27, 43, 74 press, 26, 27, 43 prevention, 107, 112, 136 preventive, 66 principles, 41, 42, 63, 76, 77, 78 prisoners, 30, 33, 36, 37, 60, 65, 70, 71, 82 prisoners of war, 36 prisons, 8, 70 private property, 77 private sector, 80, 124 probability, 17 procedural rule, 28, 44, 45 production, 134, 136, 139 profit, 102 program, 138 proliferation, x, 101, 135, 137 proposition, 58

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prosecutor, 76 protection, 18, 37, 48, 66, 76, 82, 88, 89, 97, 107, 138 protocols, 47 public, 25, 57, 61, 64, 65, 77, 110, 113, 114, 120, 123, 124 public awareness, 106 public safety, 25, 64, 65, 97 punishment, 6, 142 punitive, 83

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R race, 76 radicalization, 90 Randolph, Judge, 56, 72 range, 78, 90, 135 Rasul v. Bush, viii, 23, 24, 28, 33, 38, 56, 64 ratification, 107 reactions, 116 reading, 47, 50, 58 reality, xi, 133 reasoning, 30 rebuttable presumption, 45 recall, 139 recognition, 116, 119 recommendations, 9, 40, 122, 125 Red Sea, 94 redundancy, 88 reform, vii, 3, 4, 6, 8, 11, 12, 14, 87, 111, 113, 114, 121, 125, 126 Reform Act, 113, 114, 121, 125 reforms, 8, 122 refugees, 135 region, 135, 137, 139 regional cooperation, x, 101, 106, 107 regulation, 80 regulations, 48, 49, 52, 65, 76, 115, 140 regulatory bodies, 137 regulatory oversight, 140 reimburse, 118 reinsurance, 98, 99, 100 rejection, 140 relationship, 54 relatives, 70 relevance, 64, 138

reliability, 54 relief, viii, 23, 26, 29, 30, 33, 44, 47, 48, 50, 54, 55, 60, 65, 70, 72, 74, 80 religion, 139 rendition, 83 repression, 141 requirements, vii, 1, 4, 7, 12, 13, 16, 20, 25, 38, 42, 65, 70, 75, 79, 83 reserves, 100 resistance, 53, 140 resolution, 61, 104, 107, 112 resource management, 134 resources, 80, 87, 100, 102, 122, 125, 134, 137, 139, 140 response, xi, 7, 19, 25, 30, 35, 37, 87, 111, 116, 133, 141 responsibilities, 113, 121, 122, 125 restrictions, vii, 1, 4, 49, 65, 80, 82, 106 revenue, 106 rights, viii, 2, 7, 19, 21, 23, 24, 25, 32, 34, 35, 37, 38, 47, 50, 56, 57, 58, 64, 66, 67, 71, 72, 75, 76, 81 risk, ix, x, 52, 55, 59, 72, 83, 93, 94, 95, 96, 97, 98, 99, 100 risks, ix, 4, 6, 93, 99 routes, 67 rubber, 138 rubber products, 138 rules, vii, 11, 28, 32, 36, 38, 44, 45, 46, 51, 63, 66, 81, 86, 98, 140 rural areas, 102 Russia, 95 S sabotage, 135 safe haven, x, 105, 107, 109, 110, 111, 112, 113, 114, 116, 117, 119, 120, 121, 122, 124, 125 safety, 21, 25, 64, 65, 94, 97, 135, 136, 137, 139 salmonella, 135, 139 San Salvador, 107 sanctions, x, 101, 106 satisfaction, 43 Saudi Arabia, ix, 93, 94, 95

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Index school, 5 science, 134, 140 scope, viii, 3, 4, 5, 11, 15, 18, 19, 22, 24, 26, 27, 29, 37, 38, 39, 45, 49, 51, 52, 54, 56, 57, 58, 59, 62, 63, 64, 65, 67, 68, 69, 70, 74, 78, 80, 81, 82, 106 search, 52, 90 Seattle, 47 Secretary of Defense, 26, 27, 31, 32, 35, 43, 51, 54, 62, 68, 74, 79, 80 Secretary of Homeland Security, 62, 83 Secretary of State, 62 sectarianism, 138 security, x, 2, 4, 5, 6, 12, 18, 21, 31, 32, 35, 39, 43, 62, 65, 66, 82, 83, 87, 95, 101, 102, 104, 106, 107, 109, 110, 111, 112, 113, 114, 116, 117, 118, 119, 120, 122, 123, 124, 125, 133, 136, 137, 139, 140 security assistance, 118 security forces, 110, 119 segregation, 76 seizure, 43, 95 seizures, 116 Senate, x, 3, 4, 7, 39, 44, 45, 66, 76, 79, 80, 81, 82, 101, 103, 107, 122, 126 Senate Foreign Relations Committee, 107 Sentelle, Judge, 56 sentences, 37, 45, 47, 64 sentencing, 70 separation, 48, 57, 77 separation of powers, 48, 77 September 11, x, 39, 41, 47, 62, 81, 133, 134, 138 series, 51, 111 services, 18, 123 shaping, 57 shares, 114 sharing, 42, 90 shores, 95 shortage, 140 showing, 12, 16, 17, 20, 42, 95 Sierra Leone, 134 sites, 73 Sixth Amendment, 70 smuggling, 104 social development, 122

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society, 124 soil, 42, 140 solidarity, 107 Somalia, 94, 95, 134 South America, 102, 105 South Asia, 126 South Carolina, 26, 39, 49 sovereignty, 29, 30, 57 Soviet Union, 105 Spain, 105 speech, 66, 142 speed, 136 stability, 98, 119, 122 stakeholders, 120, 123, 124 standards, 25, 42, 43, 44, 45, 48, 49, 54, 59, 60, 67, 68, 91, 112 state, x, 13, 34, 36, 65, 78, 95, 101, 103, 105, 106, 114, 117, 125, 134, 141 State Department, 113, 119 states, 16, 102, 105, 117, 119, 138, 139, 141 statistics, 95, 100 statutes, 3, 18, 29, 37, 65 statutory, viii, 23, 25, 29, 30, 36, 40, 45, 64, 65, 68, 73, 78, 83 statutory authority, ix, 36, 93 stock, 138 storage, 18, 21 strategies, xi, 110, 112, 113, 116, 120, 121, 122, 124, 133, 136, 141 strategy, 135 strength, 134 structure, ix, 14, 47, 76, 86, 116 sub-Saharan Africa, 137 subsistence, 114 substitution, 56 Sudan, 105 suicide, 117 suicide attacks, 117 summaries, 32 summer, 111 Sun, 137, 142 supervision, 136 supply, xi, 48, 133, 134, 135, 136, 137, 140 Supreme Court, viii, 2, 6, 7, 8, 9, 12, 16, 18, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 32, 35, 36, 37, 41, 42, 43, 45, 47, 48, 50, 51,

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Index

52, 53, 55, 56, 61, 63, 67, 68, 71, 72, 73, 75, 76, 77, 78 surplus, ix, 93, 95, 100, 134 surveillance, vii, 11, 12, 13, 15, 16, 17, 18, 83, 124, 135 susceptibility, xi, 133, 134 suspects, viii, 24, 27, 43, 62, 63, 66, 78 Switzerland, 35 sympathy, 103 Syria, 103, 104, 105

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T tactics, 90 Taliban, viii, 2, 8, 24, 27, 28, 31, 33, 41, 53, 54, 62, 63, 66, 83, 111, 116, 117, 119, 138, 139 tanks, 97 target, 3, 12, 13, 15, 16, 17, 18, 21, 95, 134, 138, 139 target population, 138 targets, 87, 117 task force, 32 teams, 31 technical assistance, 17, 123, 138 technical comments, 114, 126 techniques, vii, 1, 2, 3, 8, 12, 48, 140 technology, 87, 90, 134, 140 telecommunications, 12, 15 telephone, 12, 31 territorial, 29, 65 territory, 28, 29, 30, 35, 38, 56, 57, 58, 67, 73, 74, 103, 116 terrorism, vii, viii, x, xi, 11, 12, 13, 14, 15, 18, 23, 30, 35, 41, 42, 44, 66, 78, 80, 83, 87, 88, 101, 102, 103, 104, 105, 106, 107, 109, 110, 111, 112, 113, 114, 116, 118, 120, 121, 122, 123, 124, 125, 133, 134, 136, 137, 138, 141, 142, 143 terrorist, viii, x, 24, 27, 35, 40, 41, 42, 43, 50, 62, 63, 65, 66, 81, 83, 109, 110, 111, 112, 113, 114, 116, 117, 119, 120, 121, 122, 123, 124, 125 terrorist activities, 35, 40, 116, 136 terrorist acts, xi, 50, 66, 81, 104, 105, 107, 133, 136

terrorist attack, 24, 41, 42, 62, 65, 111, 117 terrorist groups, x, 101, 102, 135, 136, 137 terrorist organization, vii, 5, 11, 66, 102, 103, 104, 105, 106, 137 terrorist watchlist, ix, 85, 86 terrorists, x, 4, 6, 14, 26, 45, 63, 66, 78, 89, 102, 103, 106, 107, 109, 111, 113, 117, 118, 119, 122, 125, 135, 139, 141 testimony, 39 threat, x, 32, 68, 86, 87, 88, 89, 90, 109, 112, 113, 114, 116, 117, 122, 123, 125, 139, 141 threats, ix, x, 2, 86, 87, 89, 93, 95, 97, 101, 102, 105, 107, 110, 111, 140 time frame, 3 title, 66, 81 Title I, 16, 17 Title II, 16, 17 tort, 29 torture, 4, 7, 35, 38, 47, 55, 80, 83 tracking, 90 trade, ix, 93, 94, 96, 98, 137, 138 trade deficit, 138 trading, 137 traditions, 3 trafficking, 102, 104, 106 training, 32, 42, 53, 103, 106, 117, 118, 123, 124, 140 traits, 140 transactions, 98, 136 transfer, 26, 33, 43, 46, 47, 54, 55, 60, 61, 70, 71, 72, 79, 80, 82, 83 transparency, 141 transport, 97 transportation, 32, 97 travel, 42, 111 treason, 50 treasury, 103, 120 treaties, 29, 30, 34, 37, 47, 48, 64, 65 treatment, vii, viii, 1, 3, 7, 8, 9, 23, 24, 25, 30, 38, 44, 46, 47, 56, 60, 61, 70, 71, 79, 81, 82, 83 trial, 6, 25, 26, 28, 29, 33, 39, 41, 43, 46, 47, 49, 50, 60, 61, 64, 66, 71, 75, 76, 79, 80, 81, 82, 104 tribal, 115, 116

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Index tribes, 124 tribesmen, 116 tribunals, 25, 36, 37, 75 triggers, x, 101, 106 Trinidad, 107 Trinidad and Tobago, 107 trust, 137

unreasonable searches, 18 urban, 102 USA, vii, viii, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 40 USA PATRIOT Act, 19, 13, 40 USAID, 109, 110, 111, 112, 113, 114, 115, 118, 119, 120, 122, 123, 124, 125, 126

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U U.S. Agency for International Development, 110, 111, 112, 130 U.S. assistance, 106 U.S. history, 58 U.S. immigration law, 6, 73 U.S. military, 30, 33, 82 U.S. policy, 106 U.S. Treasury, 103 unclassified, 51, 53, 59, 71, 112, 113, 117 underwriting, 94, 99 unemployment, 114 uniform, 8, 25, 36, 44, 141 Uniform Code of Military Justice (UCMJ), 28, 36, 37, 38, 47, 82 united, v, x, 2, 3, 4, 5, 6, 7, 8, 13, 14, 17, 21, 24, 26, 27, 28, 29, 30, 31, 32, 33, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 53, 54, 55, 56, 57, 58, 61, 62, 63, 64, 65, 66, 67, 68, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 87, 95, 96, 98, 99, 102, 103, 104, 105, 106, 107, 109, 110, 111, 112, 114, 116, 117, 118, 120, 122, 123, 124, 125, 126, 133, 134, 136, 137, 138, 139, 141, 142 United Kingdom, 112, 124 United Nations, 95, 134, 142 United States, v, x, 2, 3, 4, 5, 6, 7, 8, 13, 14, 17, 21, 24, 26, 27, 28, 29, 30, 31, 32, 33, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 53, 54, 55, 56, 57, 58, 61, 62, 63, 64, 65, 66, 67, 68, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 87, 96,鿬 98, 99, 102, 103, 104, 105, 106, 107, 109, 110, 111, 112, 114, 116, 117, 118, 120, 122, 123, 124, 125, 126, 133, 134, 136, 137, 138, 139, 141

V vacuum, 116 validity, viii, 23, 25, 67, 68 Vatican, 140 vector, 136 vegetables, 139 vehicles, 97, 138 Venezuela, x, 101, 103, 106 venue, 82 vessels, 94, 95, 96, 97, 98, 99 veterans, 77 violence, 7, 38, 66, 94, 138 violent, 42 violent extremist, 87 visa, 83 vision, 124 voiding, 36 vote, 44, 104 vulnerability, 135 W waiver, 6, 83 Wales, 140, 142 war, viii, ix, x, 4, 23, 24, 25, 27, 28, 29, 33, 34, 35, 37, 38, 41, 42, 43, 44, 56, 60, 63, 75, 78, 79, 80, 93, 95, 96, 97, 98, 99, 100, 102, 109, 111, 118, 138 war crimes, 24, 25, 28, 35, 56, 60 War Crimes Act, 81 war on terror, x, 24, 27, 28, 29, 36, 38, 43, 44, 50, 78, 79, 109, 111, 118 warning systems, 89 Washington, x, 75, 77, 101, 106, 110, 112, 113, 117, 122, 123 Washington Post, 75 watchlisting, ix, 86, 87, 89, 90

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World Health Organization (WHO), 134, 135, 143 World Trade Organization (WTO), 138 World War I, 41 World War II, 41 worldwide, ix, 93, 120, 138 writing, 31 wrongdoing, 29, 30 Y Yemen, 88, 94

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water, 95, 96, 97, 99, 137 waterways, ix, 93, 97 weapons, x, 94, 101, 103, 139 West Africa, 135, 137 western education, 139 wheat, 138, 139 White House, v, 28, 46, 85, 86, 89, 99, 122 wholesale, 138 wiretaps, vii, 11, 13, 15, 16, 17, 18 wisdom, 76 withdrawal, 36 witnesses, 31, 35, 43, 59, 67, 76, 116 workers, 139

Index

Terrorism Issues, Policies and Legislation, Nova Science Publishers, Incorporated, 2011. ProQuest Ebook Central,