DOCSLIB.ORG

Law Enforcement As a Counterterrorism Tool

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

01_A_DAVID KRIS ARTICLE V17 FINAL (6-14-11).DOC (DO NOT DELETE) 6/15/2011 12:01 PM Law Enforcement as a Counterterrorism Tool David S. Kris* In January 2011, Congress enacted legislation prohibiting the use of federal funds to transfer to the United States any individuals currently detained at Guantánamo Bay, Cuba.1 Among the purposes of this provision, observers commented, was to prevent the prosecution of these detainees in federal court in the United States.2 President Obama signed the legislation into law as part of the Defense Authorization Act, but he also issued a statement strongly objecting to the provision and pledging to seek its repeal:3 [This provision] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantánamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation’s * Assistant Attorney General for National Security at the U.S. Department of Justice from March 2009 to March 2011. This article was written and submitted for publication when Mr. Kris was Assistant Attorney General. The views expressed herein do not necessarily reflect the views of the U.S. Government. Brad Wiegmann and Rosemary Nidiry provided superb assistance on this project. Some of the points made in this article expand on remarks made by Mr. Kris in a speech at the Brookings Institution in June 2010. The prepared remarks are available on both the Department of Justice’s website, http://www. justice.gov/nsd/opa/pr/speeches/2010/nsd-speech-100611.html, and on Brookings’ website, http://www.brookings.edu/events/ 2010/0611_law_enforcement.aspx. Video of the speech is available on C-SPAN’s website, http://www.c-spanvideo.org/ program/294017-1. 1. See The Ike Skelton National Defense Authorization Act for Fiscal Year 2011, H.R. 6523, 111th Cong. §1032, enacted as Pub. L. No. 111-383 (Jan. 7, 2011). During the spring of 2011, other bills with similar provisions were pending in Congress. For example, Sections 1039 and 1046 of H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012, which was passed by the House of Representatives on May 26, 2011, would prohibit Defense Department appropriated funds for 2012 from being used to “transfer or release an individual detained at Guantanamo . to or within the United States,” and require trial by military commission for certain terrorists if they are “subject to trial . by a military commission.” 2. See, e.g., David B. Rivkin, Jr., & Lee A. Casey, Editorial, The Wrong Way To Stop Civilian Terror Trials, WALL ST. J., Dec. 21, 2010, at A17 (noting that the apparent purpose of the defense authorization provision is to prevent the prosecution of Guantánamo Bay detainees in federal court). 3. Statement by the President on H.R. 6523, 111th Cong. (Jan. 7, 2011). 1 01_A_DAVID KRIS ARTICLE V17 FINAL (6-14-11).DOC (DO NOT DELETE) 6/15/2011 12:01 PM 2 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 5:1 counterterrorism efforts and has the potential to harm our national security.4 The Congressional action and the President’s response are part of a broader public debate about the role of law enforcement as a counterterrorism tool. Some question the effectiveness of the U.S. criminal justice system and argue that it should never be used against terrorists, or at least some kinds of terrorists. In contrast, some others argue that law enforcement is the only legitimate way to detain terrorists, and that they should either be prosecuted in the civilian courts or released.5 This article argues that we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values. The discussion proceeds in five main parts. Part I reviews the recent history of our national counterterrorism strategy, focusing in particular on the origins and evolution of the Justice Department’s National Security Division (NSD), which I led from March 2009 until March 2011.6 Knowing a little about NSD is important because NSD is a key part of how the country came to a consensus, at least until recently, about the appropriate role of law enforcement as a counterterrorism tool. Part II sketches a conceptual framework for thinking about the role of law enforcement in the current conflict, and more generally as a counterterrorism tool. The idea here is to identify the right questions, and the right way of approaching the policy debate in which we are now engaged as a country. Identifying the right questions is difficult but important. Part III answers the questions posed in Part II. It briefly describes some of the empirical evidence about how law enforcement has been used to 4. Id. 5. See, e.g., Benjamin Weiser, Top Terror Prosecutor Is a Critic of Civilian Trials, N.Y. TIMES, Feb. 19, 2011, available at http://www.nytimes.com/2010/02/20/nyregion/20 prosecutor.html (quoting Andrew McCarthy, formerly an Assistant U.S. Attorney, as saying, “A war is a war. A war is not a crime, and you don’t bring your enemies to a courthouse.”). However, McCarthy has supported enhancements to the criminal justice system designed to make it more effective against some terrorists in the post-9/11 era. See, e.g., Material Support to Counterterrorism, NATIONAL REVIEW ONLINE, Dec. 14, 2004, available at http://www. nationalreview.com/articles/213131/material-support-counter terrorism/andrew-c-mccarthy). On the other side of the debate, the ACLU has argued: “If the government has enough credible evidence against a detainee, it should prosecute him in a federal court, which are [sic] well positioned to accommodate the government’s legitimate national security interests without compromising the fundamental rights of defendants. Where there is not, detainees should be repatriated to their home countries or, if there is a risk of torture or abuse, transferred to countries where human rights will be respected.” See www.closegitmo.com. 6. The National Security Division, http://www.justice.gov/nsd/index.html. 01_A_DAVID KRIS ARTICLE V17 FINAL (6-14-11).DOC (DO NOT DELETE ) 6/15/2011 12:01 PM 2011] LAW ENFORCEMENT AS A COUNTERTERRORISM TOOL 3 combat terrorism, and, in particular, how it has been used to disrupt plots, incapacitate terrorists, and gather intelligence. This serves as the basic, affirmative case for retaining law enforcement as one of our counterterrorism tools. Part III also explores some of the arguments against using law enforcement for counterterrorism, and explains why (in my view) those arguments are wrong. Part III closes with a discussion of pragmatism and perception, and the role of values in counterterrorism. Part IV offers a comparison between civilian law enforcement, detention under the law of war,7 and prosecution in a military commission. We need such a comparison to make smart decisions about public policy as well as decisions about the disposition of individual cases. The chief goal of Part IV is to explain the major pros and cons of each system.8 Finally, Part V discusses how law enforcement can be made more flexible and more effective as a counterterrorism tool. In particular, it addresses how the public-safety exception to Miranda should apply in the 9 context of terrorism investigations. I. THE RECENT HISTORY OF LAW ENFORCEMENT AS A COUNTERTERRORISM TOOL We often hear that before 9/11, the United States took a “law enforcement approach” to counterterrorism.10 There is some truth in that, but I think it oversimplifies the situation. In fact, the 9/11 Commission 7. Law of war detention as used in this paper refers to detention pursuant to the Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001), as informed by law of war principles. The procedural discussion on law of war detention focuses on any such detention that has been held to be subject to habeas corpus. 8. There are two appendices to this article: Appendix 1 is a description of some of the significant cooperation and intelligence activities of terrorist groups that the U.S. government has obtained from terrorism suspects via the criminal justice system. Appendix 2 is a chart comparing the criminal justice system and the reformed system of military commissions and law of war detention. 9. Miranda v. Arizona, 384 U.S. 436, 479 (1966); see New York v. Quarles, 467 U.S. 649, 655-56 (1984) (finding a public safety exception to the requirement of Miranda warnings where law enforcement is acting to protect the public and that the availability of that exception does not depend on the motivation of the individual officers involved). 10. See, e.g., Oversight of the U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary 111th Cong. (June 17, 2009) (statement of Sen. Jeff Sessions), available at http://judiciary.senate.gov/hearings/testimony.cfm?id=3913&wit_id=515 (expressing concern that Department of Justice “would operate under [a] pre-9/11, criminal law mindset when fighting terrorists”); Andrew C. McCarthy, Kerry’s Exaggerated Terror Problem, NAT’L REV. ONLINE (Mar. 30, 2004), http://old.national.review. com/comment/mccarthy200403300858.asp (“In the eight years from 1993 to 2001, when terrorism was regarded as a law enforcement issue, we managed to prosecute about 40 terrorists in trials that generally took six months or more, and terrorist attacks nevertheless continued apace.
Recommended publications
  • Terrorism Opinion Piece

    Terrorism Opinion Piece

    THE EVOLVING NATURE OF TERRORISM--------NINE YEARS AFTER THE 9/11 ATTACKS Committee on Homeland Security U.S. House of Representatives 15 September 2010 Written Testimony Submitted by Professor Bruce Hoffman School of Foreign Service, Georgetown University - 2 - Several disquieting trends converged in New York City’s fabled Times Square entertainment district on Saturday evening, May 1st, 2010.1 First, a foreign terrorist group, with a hitherto local agenda and otherwise parochial aims, once more stretched its wings and sought to operate on a broader, more ambitious global canvas. Second, the conventional wisdom, which has long held that the threat to the U.S. was primarily external; involving foreigners coming from overseas to kill Americans in this country as had occurred on September 11th 2001, was once again shattered. Third, the belief that the American ‘‘ melting pot’’ --------our historical capacity to readily absorb new immigrants--------would provide a ‘‘ fire-wall’’ against radicalization and recruitment has fallen by the wayside. Finally, al- Qaeda and its allies have embraced a strategy of attrition that is deliberately designed to overwhelm, distract and exhaust its adversaries. Thus, the Times Square incident, despite initial claims to the contrary, was not a ‘‘ one off’’ event perpetrated by an individual variously described as ‘‘ isolated’’ or a ‘‘ lone wolf’’ but rather is part of an emerging pattern of terrorism that directly threatens the U.S. and presents new and even more formidable challenges to our national security.2 LOCAL GROUPS WITH NEW GLOBAL AMBITIONS IN ALLIANCE WITH OLD ENEMIES This was precisely the message that Faisal Shahzad sought to convey when he appeared before a New York Federal District Court in June 2010.
  • CTC Sentinel Objective

    CTC Sentinel Objective

    NOVEMBER 2010 . VOL 3 . ISSUE 11-12 COMBATING TERRORISM CENTER AT WEST POINT CTC Sentinel OBJECTIVE . RELEVANT . RIGOROUS Contents AQAP’s Soft Power Strategy FEATURE ARTICLE 1 AQAP’s Soft Power Strategy in Yemen in Yemen By Barak Barfi By Barak Barfi REPORTS 5 Developing Policy Options for the AQAP Threat in Yemen By Gabriel Koehler-Derrick 9 The Role of Non-Violent Islamists in Europe By Lorenzo Vidino 12 The Evolution of Iran’s Special Groups in Iraq By Michael Knights 16 Fragmentation in the North Caucasus Insurgency By Christopher Swift 19 Assessing the Success of Leadership Targeting By Austin Long 21 Revolution Muslim: Downfall or Respite? By Aaron Y. Zelin 24 Recent Highlights in Terrorist Activity 28 CTC Sentinel Staff & Contacts l-qa`ida in the arabian AQAP has avoided many of the domestic Peninsula (AQAP) is currently battles that weakened other al-Qa`ida the most successful of the affiliates by pursuing a shrewd strategy at three al-Qa`ida affiliates home in Yemen.3 The group has sought to Aoperating in the Arab world.1 Unlike its focus its efforts on its primary enemies— sibling partners, AQAP has neither been the Yemeni and Saudi governments, as plagued by internecine conflicts nor has well as the United States—rather than it clashed with its tribal hosts. It has also distracting itself by combating minor launched two major terrorist attacks domestic adversaries that would only About the CTC Sentinel against the U.S. homeland that were only complicate its grand strategy. Some The Combating Terrorism Center is an foiled by a combination of luck and the analysts have argued that this stems independent educational and research help of foreign intelligence agencies.2 from the lessons the group learned from institution based in the Department of Social al-Qa`ida’s failed campaigns in countries Sciences at the United States Military Academy, such as Saudi Arabia and Iraq.
  • Homeland Security Law Policy Jurimetrics

    Homeland Security Law Policy Jurimetrics

    SYMPOSIUM HOMELAND SECURITY, LAW, AND POLICY THROUGH THE LENS OF CRITICAL INFRASTRUCTURE AND KEY ASSET PROTECTION Joe D. Whitley, George A. Koenig, and Steven E. Roberts* ABSTRACT: Homeland security continues to be one of the principal priorities of government at all levels. Homeland security, however, is not static. What gets pro- tected, how resources are allocated, and the manner in which threats are identified continue to evolve. In particular, critical infrastructure and key asset protection are fundamental components of homeland security greatly influenced by developments in law and policy. CITATION: Joe D. Whitley, George A. Koenig, and Steven E. Roberts, Homeland Security, Law, and Policy Through the Lens of Critical Infrastructure and Key Asset Protection, 47 Jurimetrics J. 259–279. *Joe D. Whitley was the first General Counsel of the Department of Homeland Security and is now an attorney and part of the Global Security and Enforcement Team in the Washington, D.C., office of Alston & Bird L.L.P. George A. Koenig was former Counsel to the General Counsel of the Department of Homeland Security and is now an attorney and part of the Global Security and Enforcement Team in the Washington, D.C., office of Alston & Bird L.L.P. Steven E. Roberts is an attorney specializing in homeland security matters in Boca Raton, Florida. SPRING 2007 259 Whitley et al. I. HOMELAND SECURITY: NOT A POST 9/11 PHENOMENON The escalation of terrorist activity throughout the 1990s suggests that the end of the Cold War ushered in a new era of conflict.1 The terrorist enemies in this war neither maintain standing armies nor subscribe to the laws of war.
  • Across the Universe? a Comparative Analysis of Violent Behavior And

    Across the Universe? a Comparative Analysis of Violent Behavior And

    The author(s) shown below used Federal funds provided by the U.S. Department of Justice and prepared the following final report: Document Title: Across the Universe? A Comparative Analysis of Violent Behavior and Radicalization Across Three Offender Types with Implications for Criminal Justice Training and Education Author(s): John G. Horgan, Ph.D., Paul Gill, Ph.D., Noemie Bouhana, Ph.D., James Silver, J.D., Ph.D., Emily Corner, MSc. Document No.: 249937 Date Received: June 2016 Award Number: 2013-ZA-BX-0002 This report has not been published by the U.S. Department of Justice. To provide better customer service, NCJRS has made this federally funded grant report available electronically. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Across the Universe? A Comparative Analysis of Violent Behavior and Radicalization Across Three Offender Types with Implications for Criminal Justice Training and Education Final Report John G. Horgan, PhD Georgia State University Paul Gill, PhD University College, London Noemie Bouhana, PhD University College, London James Silver, JD, PhD Worcester State University Emily Corner, MSc University College, London This project was supported by Award No. 2013-ZA-BX-0002, awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this publication are those of the authors and do not necessarily reflect those of the Department of Justice 1 ABOUT THE REPORT ABOUT THE PROJECT The content of this report was produced by John Horgan (Principal Investigator (PI)), Paul Gill (Co-PI), James Silver (Project Manager), Noemie Bouhana (Co- Investigator), and Emily Corner (Research Assistant).
  • Unclassified//For Public Release Unclassified//For Public Release

    Unclassified//For Public Release Unclassified//For Public Release

    UNCLASSIFIED//FOR PUBLIC RELEASE --SESR-Efll-N0F0RN-­ Final Dispositions as of January 22, 2010 Guantanamo Review Dispositions Country ISN Name Decision of Origin AF 4 Abdul Haq Wasiq Continued detention pursuant to the Authorization for Use of Military Force (2001), as informed by principles of the laws of war. AF 6 Mullah Norullah Noori Continued detention pursuant to the Authorization for Use of Military Force (2001), as informed by principles of the laws of war. AF 7 Mullah Mohammed Fazl Continued detention pursuant to the Authorization for Use of Military Force (2001 ), as informed by principles of the laws of war. AF 560 Haji Wali Muhammed Continued detention pursuant to the Authorization for Use of Military Force (2001 ), as informed by principles of the laws of war, subject to further review by the Principals prior to the detainee's transfer to a detention facility in the United States. AF 579 Khairullah Said Wali Khairkhwa Continued detention pursuant to the Authorization for Use of Military Force (2001), as informed by principles of the laws of war. AF 753 Abdul Sahir Referred for prosecution. AF 762 Obaidullah Referred for prosecution. AF 782 Awai Gui Continued detention pursuant to the Authorization for Use of Military Force (2001), as informed by principles of the laws of war. AF 832 Mohammad Nabi Omari Continued detention pursuant to the Authorization for Use of Military Force (2001 ), as informed by principles of the laws of war. AF 850 Mohammed Hashim Transfer to a country outside the United States that will implement appropriate security measures. AF 899 Shawali Khan Transfer to • subject to appropriate security measures.
  • The Internet and the Radicalization of Muslim Women

    The Internet and the Radicalization of Muslim Women

    The Internet and the Radicalization of Muslim Women Sergio E. Sanchez California State University, Chico Department of Political Science Chico, CA 95929 [email protected] “to kill one and frighten 10,000 others” - Chinese Proverb Paper prepared for Presentation at the annual meeting of the Western Political Science Association, Seattle, WA, April 2014. Abstract The Internet, with its built in anonymity and continuous availability – 24 hours a day, seven days a week- is for some the perfect venue for chatting, meeting new people, learning about topics of interest, and a source for countless hours of entertainment. Moreover, the Internet allows individuals from all over the country, or the world, who are from different socioeconomic backgrounds but who share similar interests and ideologies to interact and communicate privately. However, the Internet is also a readymade platform for the spread of hate, terror, and other radical ideas and messages, all of which can be transmitted at the speed of light, anonymously, and available on demand. The Internet is, therefore, an ideal venue for women to interact with likeminded individuals or organizations without having to sacrifice or tarnish their standing in the community or among their families. Women from repressive countries such as Saudi Arabia, Egypt, and Palestine can participate in jihad without leaving their homes and without having to meet strange men face-to-face and, consequently, bring shame to their families or themselves – as per traditional Islamic practices. Likewise, women involved or interested in radical environmentalism can meet online, share ideas, and continue their struggle against governments and corporations. Similarly, women involved, or fascinated with, right-wing religious movements or hate groups such as the KKK or neo-Nazis can likewise meet in a private setting, virtually, with little concern that their reputations or image within the community will be tarnished by their surreptitious activities online.
  • MAJID KHAN, at This Time Please Do Not Comment on the Evidence

    MAJID KHAN, at This Time Please Do Not Comment on the Evidence

    (b )( 1) (b)(3) NatSecAct TOP SECRET !I SCI.J, Verbatim Transcript of Combatant Status Review Tribunal Hearing for ISN 10020 OPENING PRESIDENT· This hearing shall come to order. RECORDER. This Tribunal is being conducted at 08:42 on 15 April 2007 on board U.S. Naval Base GuantanamoBay. Cuba. The following personnel arc present: Colom:! (b)(6) United States Air Fom·. Prcs1dcnt, Cornman er (b)(6) United States Navy, \fomber, Licutc b)(6) United States ·\ir Force, Member, Majo {b){6) Unitt.'tlStates Air Force, Personal Representative, Sergeant ·1rst rs(b)(6 United States Anny, Reporter, Ma.1od(b)(6) l~Stalt!s Air force, Recorder. Lieutenant Colone!~is the Judge Advocate member of the Tribunal. OATH SESSION1 RECORDF.R All rise. PRESIDENT: The Recorder will be !mom. Do you, Major!(b)(6) l swear or aflinn that you will faithfully performthe duties as Recmdcr assigned in this Tribunal, so help you God? RECORDER. I do. PRESIDENT: The Reporter will now he sworn. The Recorder w:11administer the oath. RECORDER: Do you, Sergeant first Cla">s(b)(6) , swear •hat you will faithfully discharge your duties as Rcporter ass1gne in this i'ribunal. so help you Ood'7 REPORTER: I do. PRESIDEN·t. We'll take a brief recess while the Detainee is brought into the room. RECORDER: The time is 08:43 on 15 April 2007. This Tribunal is now in recess. All rise. [All personnel depart the room.] CONVENINGAUTHORITY RH'.ORDER: (All personnel return into the room at 08:48.] All ri~c. PRESIDENT: This hearing will come to order.
  • David Hicks, Mamdouh Habib and the Limits of Australian Citizenship

    David Hicks, Mamdouh Habib and the Limits of Australian Citizenship

    9/17/2015 b o r d e r l a n d s e­journal limits of australian citizenship vol 2 no 3 contents VOLUME 2 NUMBER 3, 2003 David Hicks, Mamdouh Habib and the limits of Australian Citizenship Binoy Kampmark University of Queensland I will continue to take an interest in the well­being of Mr Hicks as an Australian citizen to ensure that he is being treated humanely. Alexander Downer, Answer to Question on notice, 18 March 2003. 1. Citizenship is delivered in a brown paper bag at Australian ceremonies. You apply beforehand, and, if lucky, you are asked to attend a ceremony, where you are invited to take an oath (whether to God or otherwise), and witness the spectacle of having citizenship thrust upon you. ‘There has never been a better time to become an Australian citizen’ is marked on the package, which is signed by the Immigration Minister. Brown bags signify this entire process: we await the displays, the cameo aboriginal troupe intent on welcoming the naturalised citizen with a fire ceremony that misfires (or never fires), a lady with a speech impediment who deputises for the minister for Citizenship, and the various tiers of government expounding the virtues of civic responsibility. In short, the entire ceremony is a generous self­mocking; it is citizenship as comedy, a display of cultural symbols that are easily interchanged and shifted. The mocking of citizenship lies at the centre of Australia’s discourse on what it means to be an Australian citizen. It is parodic; it does not take itself seriously, which, some might argue, is its great strength.
  • Yearbook of International Humanitarian Law — Volume 18, 2015 Correspondents’ Reports

    Yearbook of International Humanitarian Law — Volume 18, 2015 Correspondents’ Reports

    YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW — VOLUME 18, 2015 CORRESPONDENTS’ REPORTS 1 UNITED STATES OF AMERICA Contents Overview – United States Enforcement of International Humanitarian Law ............................ 1 Cases – United States Federal Court .......................................................................................... 3 Cases – United States Military Courts – Court of Appeals for the Armed Forces (CAAF) ...... 4 Cases — United States Military Courts – United States Army ................................................. 4 Cases — United States Military Courts – United States Marine Corps .................................... 5 Issues — United States Department of Defense ........................................................................ 6 Issues — United States Army .................................................................................................... 8 Issues —United States Navy .................................................................................................... 11 Issues — United States Marine Corps ..................................................................................... 12 Overview – United States Detention Practice .......................................................................... 12 Detainee Challenges – United States District Court ................................................................ 13 US Military Commission Appeals ........................................................................................... 16 Court of Appeals for the
  • The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues

    The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues

    The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues (name redacted) Legislative Attorney August 4, 2014 Congressional Research Service 7-.... www.crs.gov R41163 The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues Summary On November 13, 2001, President Bush issued a Military Order (M.O.) pertaining to the detention, treatment, and trial of certain non-citizens in the war against terrorism. Military commissions pursuant to the M.O. began in November 2004 against four persons declared eligible for trial, but the Supreme Court in Hamdan v. Rumsfeld invalidated the military commissions as improper under the Uniform Code of Military Justice (UCMJ). To permit military commissions to go forward, Congress approved the Military Commissions Act of 2006 (MCA), conferring authority to promulgate rules that depart from the strictures of the UCMJ and possibly U.S. international obligations. Military commissions proceedings were reinstated and resulted in three convictions under the Bush Administration. Upon taking office in 2009, President Obama temporarily halted military commissions to review their procedures as well as the detention program at Guantánamo Bay in general, pledging to close the prison facilities there by January 2010, a deadline that passed unmet. One case was moved to a federal district court. In May 2009, the Obama Administration announced that it was considering restarting the military commission system with some changes to the procedural rules. Congress enacted the Military Commissions Act of 2009 (MCA 2009) as part of the Department of Defense Authorization Act (NDAA) for FY2010, P.L. 111-84, to provide some reforms the Administration supported and to make other amendments to the Military Commissions Act, as described in this report.
  • Office of the Attorney General the Honorable Mitch Mcconnell

    Office of the Attorney General the Honorable Mitch Mcconnell

    February 3, 2010 The Honorable Mitch McConnell United States Senate Washington, D.C. 20510 Dear Senator McConnell: I am writing in reply to your letter of January 26, 2010, inquiring about the decision to charge Umar Farouk Abdulmutallab with federal crimes in connection with the attempted bombing of Northwest Airlines Flight 253 near Detroit on December 25, 2009, rather than detaining him under the law of war. An identical response is being sent to the other Senators who joined in your letter. The decision to charge Mr. Abdulmutallab in federal court, and the methods used to interrogate him, are fully consistent with the long-established and publicly known policies and practices of the Department of Justice, the FBI, and the United States Government as a whole, as implemented for many years by Administrations of both parties. Those policies and practices, which were not criticized when employed by previous Administrations, have been and remain extremely effective in protecting national security. They are among the many powerful weapons this country can and should use to win the war against al-Qaeda. I am confident that, as a result of the hard work of the FBI and our career federal prosecutors, we will be able to successfully prosecute Mr. Abdulmutallab under the federal criminal law. I am equally confident that the decision to address Mr. Abdulmutallab's actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks. There are many examples of successful terrorism investigations and prosecutions, both before and after September 11, 2001, in which both of these important objectives have been achieved -- all in a manner consistent with our law and our national security interests.
  • TERRORIST TRIALS: a Report Card

    TERRORIST TRIALS: a Report Card

    A P U B L I C A T I O N O F T H E C E N T E R O N L A W A N D S E C U R I T Y A T N Y U S C H O O L O F L A W | F E B R U A R Y 2 0 0 5 110 W E S T T H I R D S T R E E T , N E W Y O R K , N Y 10 0 12 | W W W . L A W . N Y U . E D U / C E N T E R S / L A W S E C U R I T Y TERRORIST TRIALS: A Report Card hen he announced his resignation in November 2004, Attorney General John Ashcroft declared, “The objective of securing the safety of Americans W from crime and terror has been achieved.” He was referring to that part of the war for which he was largely respo n s i b l e : the legal and judicial record. Ei g h t e e n months prior to that, in testimony before Congress, Ashcroft summed up the pretrial, interim results of his war on terror. Ashcroft cited 18,000 subpoenas, 211 criminal charges, 47 8 [As a preliminary note to the findings, it is important to point deportations and $124 million in frozen assets. Looking to out that accurate and comprehensive information was almost document the results of these efforts, represented in the prose- impossible to obtain.