Tag: obama

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The Jurisprudence of Detention: Definitions and Cases

Almost a year has passed since the Supreme Court’s decision to extend habeas rights to Guantanamo in Boumediene. Detention policy is currently under review by interagency task forces; it is worth looking at what the developing body of detention rulings say about the future of detention.

Taking prisoners is an unavoidable part of military action. Telling our troops that they can engage identified enemies with lethal force but cannot detain them puts them in an impossible position.

But who can we hold? The Taliban foot soldier is an easy case, but as we move away from the battlefield things get a little fuzzy. A chronological review of the decisions regarding detainee status gives some insight.

Salim Hamdan

The first case comes from the military commissions convened in Guantanamo. Though it predates Boumediene, it puts the question of who is an unlawful enemy combatant in front of a judge.

Salim Hamdan was the petitioner in the Supreme Court case that invalidated military commissions established by executive order. Congress responded to his victory at the Supreme Court with the Military Commissions Act (MCA) to establish legislatively-sanctioned commissions, but their jurisdiction is limited to “alien unlawful enemy combatants.”

Following the passage of the MCA, Hamdan’s defense counsel filed a motion for an additional hearing to determine whether he was a lawful or unlawful combatant. If he was a lawful combatant, then the commission would lack jurisdiction and he might then be prosecuted in a court-martial. Lawful combatants (i) have a commander, (ii) wear uniforms or a distinctive symbol, (iii) bear their arms openly, and (iv) follow the laws of land warfare.

Captain Allred, the officer presiding, granted the defense motion.

Allred found that Hamdan’s service to Al Qaeda as Osama Bin Laden’s driver and occasional bodyguard, pledge of bayat (allegiance) to Bin Laden, training in a terrorist camp, and transport of weapons for Al Qaeda and affiliated forces supported finding him an enemy combatant. Hamdan was captured at a roadblock with two surface-to-air missiles in the back of his vehicle. The Taliban had no air force; the only planes in the sky were American. Hamdan was driving toward Kandahar, where Taliban and American forces were engaged in a major battle. The officer that took Hamdan into custody took pictures of the missiles in Hamdan’s vehicle before destroying them.

Hamdan’s past association with the Ansars (supporters), a regularized fighting unit under the Taliban, did not make him a lawful combatant. Though the Ansars wore uniforms and bore their arms openly, Hamdan was taken into custody in civilian clothes and had no distinctive uniform or insignia.

Based on his “direct participation in hostilities” and lack of actions to make him a lawful combatant, Captain Allred found that Hamdan was an unlawful enemy combatant.

Decisions Under the Enemy Combatant Definition

Following Boumediene, detainees have had their cases heard by federal judges. The District Court for the District of Columbia adopted and applied the following definition, and the government need only prove it by a preponderance of the evidence:

An “enemy combatant” is an individual who was part of or supporting Taliban or al Qaeda 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 in aid of enemy armed forces.

District Judge Richard J. Leon moved through these cases quicker than his colleagues and gives us several decisions to look at.

Lakhdar Boumediene, et al.: Five ordered released, one detained. This is the set of six petitioners that won the right to habeas corpus hearings at the Supreme Court. They were picked up in Bosnia and allegedly planned to travel to Afghanistan to fight against American forces. Judge Leon ordered five of the six released because the word of an unnamed informant was simply not enough to justify their detention. Since the evidence was insufficient to determine that a plan to travel to Afghanistan existed, Judge Leon did not reach the question of whether such a plan would constitute “support.” Leon found that the sixth man, Belkalem Bansayah, was an enemy combatant based on corroborating sources and evidence that he was adept in using false passports in multiple fake names and was facilitating the travel of others to fight in Afghanistan. This constituted “support” necessary to find him an enemy combatant.

Hisham Sliti: One detained.  Sliti is a Tunisian who traveled from London to Afghanistan on a false passport. He was detained in 2000 by Pakistani authorities because of his false passport and had an address book with contact information for radical extremists. He escaped back into Afghanistan and was later re-captured fleeing the American military in 2001. Judge Leon found that he had traveled to Afghanistan with the financial support of extremists with well-established ties to Al Qaeda, spent time with Al Qaeda-affiliated radicals, stayed at a guesthouse associated with Al Qaeda that served as barracks for terrorist training camps, and that other guests at the house were instrumental in creating terrorist cells. By his own admission, he knew the location, appearance, and code words used by those attending the nearby training camp.

Moath Hamza Ahmed al Alwi: One detained. Al Alwi is a Yemeni who traveled from Saudi Arabia to Afghanistan to fight alongside the Taliban against the Northern Alliance. Judge Leon found that al Alwi could remain in custody based on the evidence that he had trained at Al Qaeda camps, stayed at Al Qaeda guesthouses, fought on two fronts with the Taliban, and did not leave Afghanistan until his Taliban unit was bombed on two or three occasions by American aircraft.

Mohammed el Gharani: One ordered released.  El Gharani is a Saudi who went to Pakistan around 2001. The government alleged that he had been a member of an Al Qaeda cell in London, stayed at an Al Qaeda-affiliated guesthouse, and fought American forces at the battle of Tora Bora. Judge Leon did not find these claims credible, as all of them were based on the word of fellow detainees. The government also alleged that he had been a courier for Al Qaeda, but had insufficient evidence to back up this claim.

In the above cases, six detainees have been ordered released and three met the criteria to be classified as “enemy combatants.”

Transition From “Enemy Combatant” to “Substantial Support”

The Obama administration has since dropped the term “enemy combatant” and changed its claim of detention authority:

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 hostilities, in aid of such enemy armed forces.

The first decision under the new definition came down from District Judge Ellen Huvelle.

Yasin Muhammed Basardh: One ordered released. Basardh is a Yemeni who was arrested in early 2002 and transported to Guantanamo Bay. He cooperated with detention authorities, giving information about his fellow detainees. As a result, other detainees physically assaulted him and threatened to kill him. Judge Huvelle determined that widespread disclosure of Basardh’s cooperation with the government renders his prospects for rejoining terrorists “at best, a remote possibility.”

Judicial Review of the Authority to Detain

The definitions of “enemy combatant” and the power claimed by the Obama administration are very similar, and the addition of “substantially” is probably only going to affect marginal cases.

A recent review of the revised claim of detention power broadly approved the government’s power of detention. District Judge Reggie B. Walton accepted, in a slightly modified form, the general power of the government to detain those who have participated in hostilities. In doing so, he rejected a detainee’s claims that the Authorization for Use of Military Force passed after 9/11 did not allow military detention and that detainees must be tried in a civilian court or released.

Judge Walton adopted the following definition for detention decisions:

[I]n addition to the authority conferred upon him by the plain language of the AUMF, the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms “substantially supported” and “part of” are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.

Judge Walton did limit the government’s detention authority to those part of the “command structure” of Al Qaeda and the Taliban. This precludes detaining “[s]ympathizers, propagandists, and financiers” that may be part of enemy organizations in an abstract sense but who are not part of the organizations’ command structure. Judge Walton also did not resolve the issue of organizations and individuals “associated” with the Taliban and Al Qaeda.

Though Judge Walton rejected the petitioners’ “direct participation in hostilities” standard for detention in favor of the government’s “substantial support” standard, he explicitly authorized detention of an Al Qaeda “member tasked with housing, feeding, or transporting” members of the organization. An Al Qaeda cook who trained at a terrorist camp can be detained just as “his comrade guarding the camp entrance.”

The competing definitions can often arrive at the same conclusion. Captain Allred determined that Salim Hamdan was an unlawful enemy combatant for a combination of the “substantial support” activities under the “direct participation in hostilities” standard.

Conclusion

The cases above illustrate that the general principles of detention have not changed significantly with adjusted definitions. The terms “enemy combatant,” “direct participation in hostilities,” and “substantial support” will be interpreted by judges on a case-by-case basis much like a finding of probable cause to issue a warrant or justify a search.

Taxpayers Deserve Better from the President

President Obama’s estimated $17 billion budget cuts for fiscal year 2010 amounts to a measly .5 percent of the president’s total proposed spending, and 1.5 percent of the president’s proposed deficit for the coming fiscal year. His offerings to cut the budget should be dismissed as unserious. In fact, this is reminiscent of the Bush administration’s annual list of minuscule proposed cuts in the face of profligate spending and mounting federal debt.

President Obama says his efforts “are just the next phase of a larger and longer effort needed to change how Washington does business and put our fiscal house in order.” Promising more spending and more debt while celebrating relatively insignificant cuts and ignoring the looming entitlement crunch represents businesses as usual, not change. Current and future taxpayers deserved a serious proposal to reduce the government’s burden on their wallets and the struggling economy. Instead, the president’s first budget represents an attempt to shove the government’s hand deeper into the American peoples’ pockets and lives.

The president made several questionable statements in his address earlier today. He promised “long overdue investments” in education. But federal spending on education has already increased dramatically with no positive results. He spoke of “undertaking health care reform so that we can control costs while boosting coverage and quality” and “investing in renewable sources of energy.” Yet we know any type of reform will mean higher taxes, government rationing, and slower economic growth.

Obama’s Budget Cuts

The Obama administration has issued a modest list of budget cuts for programs that are “duplicative” and “ineffective.”

That’s a good start for spending reforms, but a more substantial way to end “duplication” would be to terminate all $500 billion of federal subsidies sent to state governments each year, which duplicate properly state-level activities such as highway building.

Further, cutting some “ineffective” programs ignores the broader question of whether programs represent just and legitimate uses of government power. We can make farm subsidies more “effective,” for example, but that does not make it ethical to transfer $20 billion each year from hard-working taxpayers to often high-income farm businesses.

I’d like to see the Obama administration attack Washington’s overspending problem in a more dramatic and fundamental way.

For now, here’s a great place to start:

Mortgage ‘Safe Harbor’ Anything But Safe

After the Senate’s rejection last week of allowing bankruptcy judges to re-write mortgage contracts, the so called “cramdown” provisions, it was starting to look as if the Senate cared about respecting private contracts. Sadly, such concern has been short-lived.

Tucked away in the mortgage bill is a provision that gives servicers of mortgages, that is, the entities that collect payments and perform modifications on behalf of the actual investors in mortgages, a “safe harbor” from any litigation by investors if the servicer chooses to follow the interests of the borrower or the government, rather than fulfilling their fiduciary duty to the investors.

Supporters of the safe harbor claim that too many foreclosures have taken place due to contractual restrictions on the ability of servicers to modify mortgages in a manner that would allow borrowers to stay in their homes. Most pooling and servicing agreements allow mortgage modifications without the investors’ approval if the modification increases the net present value of the mortgage. However, if the mortgage modification resulted in a loss to the investor, over what they would recover in a foreclosure, then they are not allowed under current contracts. The safe harbor intends to fix this “problem” by allowing the servicer to impose additional losses on investors, as long as that servicer follows President Obama’s foreclosure plan.

Allowing parties to a contract to ignore their contractual obligations as long as they sign-on to presidential initiatives is a dangerous precedent, and one that will ultimately raise the cost of entering into and enforcing contracts.

As these costs will have to be borne by someone, it is likely in the future that these efforts at undermining contracts in our credit markets will result in higher interest rates for all borrowers.

An attempt was made by Senator Corker to modify this provision, restoring some protections for basic contract rights. Rather than taking the opportunity to reduce the damage done to contracts from this provision, the Senate rejected Senator Corker’s amendment by a rather large margin.

After the President’s recent attacks on minority debt-holders in Chrysler, the President’s support for mortgage cramdown, and now the Senate moving on the so-called “safe harbor” provisions, it is becoming increasing clear that investors themselves will soon be in need of a safe harbor from Washington.

Pakistan Troops Pour into Swat Valley

The Associated Press reports that Pakistani troops have taken the fight to militants in the Swat valley, ending a three month truce between the government and Taliban forces.

As I argued in the Washington Times almost a year ago, Pakistani government peace deals with militants have a tendency to collapse. Thus, we shouldn’t be too surprised to see the latest “Shariah for peace deal” in Swat already begin to fray.

With this in mind, U.S. policymakers and defense planners must keep in mind the constraints Pakistani leaders are operating under. After 9/11, Pakistan was caught in an unenviable and contradictory position: the need to ally openly with the United States and the desire to discreetly preserve their militant assets as a hedge to Indian influence.

For example, Maulana Fazlur Rahman, who heads Pakistan’s Islamist political party Jamiat Ulema-i-Islam, led large anti-US, anti-Muaharraf, and pro-Taliban rallies in major Pakistani cities after the U.S. began bombing Taliban strongholds in Afghanistan. JUI and other influential Islamist organizations fiercely criticized Musharraf and the military for aligning with the United States and Pervez Musharraf himself was condemned within Pakistan for aligning with America in the war on terror. This dynamic has not gone away.

As I argue here, Pakistan’s six-decade rivalry with India is the biggest impediment to success in Afghanistan. It’s an open secret that elements of Pakistan’s military-dominated national intelligence agency, Inter-Services Intelligence (ISI), assist the powerful jihadist insurgency U.S. and NATO troops are fighting in Afghanistan; Pakistan’s objective is to blunt the rising influence of their rapidly growing nemesis, India, which strongly supports Afghan President Hamid Karzai’s regime. Thus far, the United States has been unable to encourage Pakistan to ignore its traditional rival and ultimately, Pakistan’s civilian leaders and defense planners must determine if insurgents or India poses a greater threat.

Unfortunately, aerial drone strikes and other stop-gap measures do little to address the strategic drift between Washington and Islamabad. Unless President Obama can reassure hawks within Pakistan’s military and intelligence apparatus that India no longer poses an existential threat to their country (a promise impossible to guarantee) then the U.S.-NATO stalemate in Afghanistan will persist.

Questions for Heritage: REAL ID

The Heritage Foundation’s “The Foundry” blog has a post up called “Questions for Secretary Napolitano: Real ID.”

Honest advocates on two sides of an issue can come to almost perfectly opposite views, and this provides an example, because I find the post confused, wrong, or misleading in nearly every respect.

Let’s give it a brief fisking. Below, the language from the post is in italics, and my comments are in roman text:

Does the Obama Administration support the implementation of the Real ID Act?

(Hope not … .)

Congress has passed two bills that set Real ID standards for driver’s licenses in all U.S. jurisdictions.

REAL ID was a federal law that Congress passed in haste as an attachment to a military spending bill in early 2005. To me, “REAL ID standards” are the standards in the REAL ID Act. I’m not sure what other bill the post refers to.

Given the legitimate fear of REAL ID creating a federal national ID database, section 547 of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 barred the creation of a new federal database or federal access to state databases with the funds in that bill. (Thus, these things will be done with other funds later.)

The Court Security Improvement Act allowed federal judges and Supreme Court Justices to withhold their addresses from the REAL ID database system, evidently because the courts don’t believe the databases would be secure.

And in the last Congress, bills were introduced to repeal REAL ID in both the House and Senate. Congress has been backing away from REAL ID since it was rammed through, with Senators like Joe Lieberman (I-CT) calling REAL ID unworkable.

It’s unclear what the import of the sentence is, but if it’s trying to convey that there is a settled consensus around the REAL ID law, that is not supported by its treatment in Congress.

The Real ID legislation does not create a federal identification card, but it does set minimum security standards for driver’s licenses.

This sentence is correct, but deceptive.

REAL ID sets federal standards for state identification cards and drivers’ licenses, refusing them federal acceptance if they don’t meet these standards. Among those standards is uniformity in the data elements and a nationally standardized machine readable technology. Interoperable databases and easily scanned cards mean that state-issued cards would be the functional equivalent of a federally issued card.

People won’t be fooled if their national ID cards have the flags of their home states on them. When I testified to the Michigan legislature in 2007, I parodied the argument that a state-issued card is not a national ID card: “My car didn’t hit you — the bumper did!”

All states have either agreed to comply with these standards or have applied for an extension of the deadline.

It’s true that all states have either moved toward complying or not, but that’s not very informative. What matters is that a dozen states have passed legislation barring their own participation in the national ID plan. A couple of states received deadline extensions from the Department of Homeland Security despite refusing to ask for them. Things are not going well for REAL ID.

Secure identification cards will make fraudulent documents more difficult to obtain and will also simplify employers’ efforts to check documents when verifying employer eligibility.

It’s true that REAL ID would make it a little bit harder to get - or actually to use - fraudulent documents, because it would add some very expensive checks into the processes states use when they issue cards.

It’s not secure identification cards that make fraudulent documents harder to obtain - the author of this post has the security problems jumbled. But, worse, he or she excludes mentioning that a national ID makes it more valuable to use fraudulent documents. When a thing is made harder to do, but proportionally more valuable to do, you’ll see more of it. REAL ID is not a recipe for a secure identity system; it’s a recipe for a more expensive and invasive, but less secure identity system.

Speaking of invasive, this sentence is a confession that REAL ID is meant to facilitate background checks on American workers before they can work. This is a process I wrote about in a paper subtitled “Franz Kafka’s Solution to Illegal Immigration.” The dream of easy federal background checks on all American workers will never materialize, and we wouldn’t want that power in the hands of the federal government even if we could have it.

Real ID is a sensible protection against identify fraud.

The Department of Homeland Security’s own economic analysis of REAL ID noted that only 28% of all reported incidents of identity theft in 2005 required the presentation of an identification document like a driver’s license. And it said REAL ID would reduce those frauds “only to the extent that the [REAL ID] rulemaking leads to incidental and required use of REAL ID documents in everyday transactions, which is an impact that also depends on decisions made by State and local governments and the private sector.”

Translation: REAL ID would have a small, but speculative effect on identity fraud.

Congress is set to introduce legislation next week that could largely repeal the Real ID.

The bill I’ve seen is structured just like REAL ID was, and it requires states to create a national ID just like REAL ID did. REAL ID is dying, but the bill would revive REAL ID, trying to give it a different name.

Some groups oppose this version of REAL ID because it takes longer to drive all Americans into a national ID system and frustrates their plans to do background checks on all American workers. But it’s still the REAL ID Act’s basic plan for a national ID.

The Administration should put pressure on Congress to ensure that this legislation does not effectively eliminate the Real ID standards.

Why the administration would pressure Congress to maintain the national ID law in place - by any name - is beyond me. REAL ID is unworkable, unwanted, and unfixable.

Homeland Security Secretary Janet Napolitano signed legislation as Arizona’s governor to reject the REAL ID Act. Her predecessor at DHS, Michael Chertoff, talked tough about implementing the law but came up just shy of lighting the paper bag in which he left it on Napolitano’s doorstep.

The REAL ID revival bill that is being so widely discussed is likely to be both the national ID plan that so many states have already rejected and deeply unsatisfying to the anti-immigrant crowd. Congress rarely fails to grasp a lose-lose opportunity like this, so I expect it will be introduced and to see it’s sponsors award themselves a great deal of self-congratulations for their courageous work. You can expect that to receive a fisking here too.