WASHINGTON — The Obama administration’s legal team is split over how much latitude the United States has to kill Islamist militants in Yemen and Somalia, a question that could define the limits of the war against Al Qaeda and its allies, according to administration and Congressional officials.
The debate, according to officials familiar with the deliberations, centers on whether the United States may take aim at only a handful of high-level leaders of militant groups who are personally linked to plots to attack the United States or whether it may also attack the thousands of low-level foot soldiers focused on parochial concerns: controlling the essentially ungoverned lands near the Gulf of Aden, which separates the countries.
The dispute over limits on the use of lethal force in the region — whether from drone strikes, cruise missiles or commando raids — has divided the State Department and the Pentagon for months, although to date it remains a merely theoretical disagreement. Current administration policy is to attack only “high-value individuals” in the region, as it has tried to do about a dozen times.
But the unresolved question is whether the administration can escalate attacks if it wants to against rank-and-file members of Al Qaeda in the Arabian Peninsula, based in Yemen, and the Somalia-based Shabab. The answer could lay the groundwork for a shift in the fight against terrorists as the original Al Qaeda, operating out of Afghanistan and Pakistan, grows weaker. That organization has been crippled by the killing of Osama bin Laden and by a fierce campaign of drone strikes in the tribal regions of Pakistan, where the legal authority to attack militants who are battling United States forces in adjoining Afghanistan is not disputed inside the administration.
One senior official played down the disagreement on Thursday, characterizing it as a difference in policy emphasis, not legal views. Defense Department lawyers are trying to maintain maximum theoretical flexibility, while State Department lawyers are trying to reach out to European allies who think that there is no armed conflict, for legal purposes, outside of Afghanistan, and that the United States has a right to take action elsewhere only in self-defense, the official said.
But other officials insisted that the administration lawyers disagreed on the underlying legal authority of the United States to carry out such strikes.
Robert Chesney, a law professor at the University of Texas at Austin who specializes in the laws of war, said the dispute reflected widespread disagreement about how to apply rules written for traditional wars to a conflict against a splintered network of terrorists — and fears that it could lead to an unending and unconstrained “global” war.
“It’s a tangled mess because the law is unsettled,” Professor Chesney said. “Do the rules vary from location to location? Does the armed conflict exist only in the current combat zone, such as Afghanistan, or does it follow wherever participants may go? Who counts as a party to the conflict? There’s a lot at stake in these debates.”
Counterterrorism officials have portrayed Al Qaeda in the Arabian Peninsula — which was responsible for the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009 — as an affiliate of Al Qaeda that may be more dangerous now than the remnants of the original group. Such officials have also expressed worry about the Shabab, though that group is generally more focused on local issues and has not been accused of attacking the United States.
In Pakistan, the United States has struck at Al Qaeda in part through “signature” strikes — those that are aimed at killing clusters of people whose identities are not known, but who are deemed likely members of a militant group based on patterns like training in terrorist camps. The dispute over targeting could affect whether that tactic might someday be used in Yemen and Somalia, too.
The Defense Department’s general counsel, Jeh C. Johnson, has argued that the United States could significantly widen its targeting, officials said. His view, they explained, is that if a group has aligned itself with Al Qaeda against Americans, the United States can take aim at any of its combatants, especially in a country that is unable or unwilling to suppress them.
The State Department’s top lawyer, Harold H. Koh, has agreed that the armed conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and adjoining parts of Pakistan. But, officials say, he has also contended that international law imposes additional constraints on the use of force elsewhere. To kill people elsewhere, he has said, the United States must be able to justify the act as necessary for its self-defense — meaning it should focus only on individuals plotting to attack the United States.
The fate of detainees at Guantánamo Bay, Cuba, hangs heavily over the targeting debate, officials said. In several habeas corpus lawsuits, judges have approved the detention of Qaeda suspects who were captured far from the Afghan battlefield, as well as detainees who were deemed members of a force that was merely “associated” with Al Qaeda. One part of the dispute is the extent to which rulings about detention are relevant to the targeting law.
Congress, too, may influence the outcome of the debate. It is considering, as part of a pending defense bill, a new authorization to use military force against Al Qaeda and its associates. A version of the provision proposed by the House Armed Forces Committee would establish an expansive standard for the categories of groups that the United States may single out for military action, potentially making it easier for the United States to kill large numbers of low-level militants in places like Somalia.
In an interview, Senator Lindsey Graham, a South Carolina Republican on the Armed Services Committee, said that he supported the House version and that he would go further. He said he would offer an amendment that would explicitly authorize the use of force against a list of specific groups including the Shabab, as well as set up a mechanism to add further groups to the list if they take certain “overt acts.”
“This is a worldwide conflict without borders,” Mr. Graham argued. “Restricting the definition of the battlefield and restricting the definition of the enemy allows the enemy to regenerate and doesn’t deter people who are on the fence.”
In a 2-to-1 opinion, the United States Court of Appeals for the 11th Circuit, in Atlanta, ruled that the sentence was “substantively unreasonable” and did not take into account Mr. Padilla’s violent criminal history as a former gang member in Chicago. It also said the lower court did not take seriously enough Mr. Padilla’s time at a Qaeda camp in Afghanistan, where he was trained to kill.
“Padilla poses a heightened risk of future dangerousness due to his Al Qaeda training,” the court said. “He is far more sophisticated than an individual convicted of an ordinary street crime.”
The appellate court also affirmed Mr. Padilla’s conviction and that of his two co-defendants.
The government had appealed Mr. Padilla’s sentence, which was 17 years and 4 months, seeing it as too great a departure from federal sentencing guidelines.
After a four-month trial in 2007, Mr. Padilla, a Brooklyn-born convert to Islam who grew up in Chicago, and two co-defendants were convicted of conspiring to murder, kidnap and maim people in foreign countries. Prosecutors said the three helped foster jihad as part of a North American cell that provided money, recruits and supplies to Islamic extremists. The sentences of Mr. Padilla’s co-defendants stand.
Mr. Padilla, now 40, was first arrested in 2002 at O’Hare International Airport in Chicago on suspicion that he was planning to set off a radioactive dirty bomb. He was held in military detention in South Carolina as an enemy combatant for more than three years. Subsequently, he was transferred to civilian custody and was tried in federal court. His case became a focus of the debate over the Bush administration’s approach to prosecuting terrorism.
The dirty-bomb accusation was eventually dropped and not raised in court.
Judge Marcia G. Cooke of Federal District Court, who presided over the trial, said at the sentencing in January 2008 that while she understood the gravity of the crimes, no evidence linked Mr. Padilla and his co-defendants to specific acts of terrorism. She also took into account his age, the sentences of other people convicted on terrorism-related charges and his time in the naval brig in South Carolina.
But the federal appeals court said Judge Cooke made several errors in calculating Mr. Padilla’s sentence. For one, she “unreasonably discounted” his troubled past, which included 17 prior arrests and participation as a juvenile in an armed robbery that ended in the victim’s death. Mr. Padilla served four years in juvenile detention.
The trial judge also overestimated Mr. Padilla’s potential for turning his life around upon release from prison, the court stated. Mr. Padilla’s terrorist training sets him apart from an ordinary street thug, the court argued. And while the appeals court said it was permissible to reduce a sentence on account of harsh conditions during pretrial confinement, Judge Cooke went too far when she shaved off more than nine years.
Mr. Padilla’s lawyer presented evidence that Mr. Padilla spent long periods in isolation while in military detention and said he was subjected to interrogation, sleep and sensory deprivation, and temperature variations, among other things.
In her dissenting opinion, Judge Rosemary Barkett said Judge Cooke had properly weighed all of these factors, including Mr. Padilla’s time in the brig, and did not abuse her discretion. Instead, Judge Barkett said, the appellate court was overstepping its bounds.
Both sides can ask the full appeals court to rehear the case or petition the Supreme Court to review the decision.
F6 .. Congress endorsing military detention, a new AUMF
By Glenn Greenwald .. excerpt ..
Third, I haven’t written about this bill until now for one reason: as odious and definitively radical as the powers are which this bill endorses, it doesn’t actually change the status quo all that much. That’s because the Bush and Obama administrations have already successfully claimed most of the powers in the bill, and courts have largely acquiesced. To be sure, there are dangers to having Congress formally codify these powers. But a powerful sign of how degraded our political culture has become is that this bill — which in any other time would be shockingly extremist — actually fits right in with who we are as a nation and what our political institutions are already doing. To be perfectly honest, I just couldn’t get myself worked up over a bill that, with some exceptions, does little more than formally recognize and codify what our Government is already doing.
* * * * *
To see why that’s true, it is worth briefly examining each of the three provisions that are the most significant. These are complex issues that cannot be meaningfully analyzed in a 400-word post. But they are important enough to take the time to understand:
Military detention of accused Terrorists [...] Expanded AUMF [...] Restrictions on GITMO transfers [...] ..
Coming from, many i think justifiably see, one who has been overly 'heavy' on Obama seems to me, Greenwald's, view on this one is to be noted by those who may be inclined to be ALARMED about it .. that's the reason i'm posting it ..
it's VERY long .. haven't read nearly all of it .. maybe a revisit (for search) sometime ..
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