Response to the comments on my Guardian article

This is a rather belated response to the comments on my Guardian article on 2 November.  Unfortunately I couldn’t reply before the comments page closed, in fact I didn’t realise it closed, but still the comments deserve a reply and this is it.   Most tend to agree that there is an issue here about the US unilaterally writing the laws of war.  Then there are those that disagree that what America is doing was contrary to the Geneva Conventions.  These tend to accept the category of unlawful combatant as implicit in the law, or they argue that al Qaeda is a new entity and that international law should recognise as an unlawful combatant.  Then there is the more nuanced criticism (iubkoala), which states that this legal dispute is so technical (“a complicated little argument”) and of marginal significance.  I find this last point interesting and I agree that we really should not be in a situation where we are arguing about technicalities.  But don’t forget it was lawyers for the Bush administration that came up with the complicated little argument that tried to square what they were doing with the Geneva Conventions.  The Geneva Conventions are universal and the US has been trying to say what it is doing is consistent with universal law.  The point of the article is to point out that there are many who think this is not the case.  Now, iukoala and some others may be correct to argue that the US has the right to go its own way and pass its own laws and act according to those laws in other countries.  But let’s be clear about what that is.  That is extending American law extraterritorially. It is not international law.  Indeed, for some the extension of national law under the pretence of it being universal law is imperialism.  Justice Scalia argued that in his Rasul dissent. And yes, international law should evolve, but if it is to evolve legitimately then other states should have a say in it – that’s democracy, right? Ironically, when other states did get together to discuss the evolution of the laws of war in Rome in 1998, and when they created the new International Criminal Court, the US refused to accept the outcome.  Now, again iukoala might say so what – the US has a right to do that. And again they would be right.  The question to ask therefore to ask is political and not legal.  What really has been gained in terms of America’s national interests by these attempts to rewrite the law?  There are many American realists now accepting that the unilateralism of the war on terror has delivered benefits that are marginal and problems that are significant.  This is not a question that only worries liberal Europeans, American realists remain concerned.

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US democracy promotion conference

Nicolas Bouchet kindly forwarded this link to the video of an excellent conference I attended. The video is of the roundtable on US democracy promotion at the Institute for the Study of the Americas. The link is:

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Tom Farer, Dean of the Josef Korbel School of International Studies, University of Denver

Roughly a year and one-quarter into the Obama Presidency it is now possible to identify with some confidence not simply the incumbent’s foreign policy goals (which are, after all, not obscure), but, more importantly, his sense of how to pursue them.  It is the latter, what we might call the President’s “statecraft,” which most distinguishes one American President from another.    To be sure, for at least two reasons the distinction I am proposing between goals and means is fraught with difficulty.  One is that under close inspection most goals, even when indisputably desirable in themselves (which is not always the case, e.g. conquering Iraq), are in turn means to still more general ends.  Secondly, the efficacy of means being uncertain (there being no laboratory for scientifically pre-testing them), the choice of means inevitably reflects deep values (as well as thoughtful extrapolations from historical experiences deemed analogous) which constitute much of the real substance of those grand ends the political culture requires Presidents to declare.  Nevertheless, I think the distinction has some value, particularly for purposes of comparing one President with another, because at the loftiest level of goal announcement (e.g. promoting democracy, protecting vital American interests) presidents of the US can sound misleadingly similar. 

Like his predecessors, this President’s statecraft is expressed in his daily acts and omissions.  Their sheer abundance requires that, as a prelude to characterizing his statecraft, this mass of decisions to act or not to act (whether by word or deed) needs to be organized in terms of general approaches or sets of approaches to the conduct of American foreign policy that have been available to all occupants of the White House, indeed to the heads of state of all countries.  One set of approaches corresponds very roughly to the academic categories of Realism and Constructivism.  I use them here without the subtle refinements of their use among theorists and in ways that don’t correspond in some respects to their academic usage.  

The Realist in the White House acts on the assumption that elites governing other consequential states more or less rationally calculate and pursue material interests by whatever means available without reference to international norms or institutions except to the extent they are seen as contingently useful.   Consistent with this belief, the Realist believes that material things being finite and power being the currency which determines their allocation, conflicts of interest are as inevitable a they are real and in the end are resolved by the balance or, as is often the case, the imbalance of power.   

The Constructivist, by contrast, believes that states like individuals are moved by concerns with dignity and respect, as well as material goals, that elites do not always calculate rationally, and that their statecraft stems in significant part from their interactions with other states which shape not only their view of the other, but also their view of themselves.  It follows that hostile relations between states may not be the result of self-evident, irreducible conflicts of interest but rather may arise from spirals of hostile communication (by word as well as deed) which can, with difficulty, be reversed if not to active and sustained cooperation, than at least to a modus vivendi. 

For reasons far too complex to develop in this brief blog, no White House resident or Svengali (even Vice President Cheney) can be caged as a perfect example of either tendency.   In his references to states he deemed hostile, George  W.  Bush seemed unable to imagine that the positions of such states could be traceable in any way and to any degree to past actions of the United States.  So it seems fair to say that he had no natural affinity with the Constructivist world view.  But believing (perhaps unknowingly in the spirit of Immanuel Kant), as he at least rhetorically did, that the character of a country’s government is a principal determinant of its foreign policy, he hardly qualifies as a straightforward Realist.   By contrast, even if we take account only of his Cairo speeches where he referred ruefully to the US role in the 1953 overthrow of  an incipient democratic regime in Iran, Barack Obama qualifies as the post World War II President with the strongest Constructivist instincts. 

A similar but not quite identical basis for comparing the foreign policy premises of American Presidents is their respective beliefs about the relative efficacy of hard and soft power.   The use or threatened use of force is, of course the hardest form of power.  But I would also place at the hard end of the means spectrum economic forms of coercion.  Indeed, I find it conceptually useful to place all forms of coercion under the hard power heading while recognizing operationally important differences between the military and other instruments. 

Soft power I would define as the exercise of influence by non-coercive means.   It can be focused directly on other governing elites or on the populations for which they claim to speak and by which they may, in turn, be influenced.   If, for example, we want to use a country’s territory in order to project force into another one (as we wished to use Turkish territory in connection with the invasion of Iraq), and the government of that territory is to some degree responsive to public opinion,  the US effort to make the relevant population think of it as a benign force in the world would constitute use of soft power.   Another is signaling to another governing elite friendly intentions and/or the belief that its interests coincide with our own. 

Every President uses it to some degree.  George W. Bush is generally and correctly seen as an ardent believer in the efficacy of hard power.  But it was not the only tool in his kit.  His rhetorical efforts to identify the U.S. with the spread of liberal democracy were essays in soft power as was his cultivation of Central and East European countries that he saw as more sympathetic to US policy in the Middle East and West Asia than traditional allies. 

As the surge of additional US forces into Afghanistan confirms, Barack Obama has no constitutional aversion to the use of hard power.  At the same time, he has demonstrated a strength of belief in the efficacy of soft power and a willingness to employ it that goes far beyond Bush father and son, Reagan and even his nearest Democratic predecessor, Bill Clinton.

His selection of an Arab city as the site of a major speech on US policy toward the Middle East was an exercise of soft power.  So was the speech’s content, not only the rueful admission of the 1953 US action in Iran, but also the expression of sympathy for the Palestinian people, the recognition of their suffering rather than the mere coldly pragmatic reaffirmation of a two-state solution.  Another calculated exercise of soft power was the stated intention to “reset” relations with Russia followed by the termination of the project to install elements of a missile defense system in former Warsaw Pact states.  A third salient attempt to influence by non-coercive means was both the choice of venue for and the substance of his first speech addressed to African peoples.  The goal, of course, was to encourage African governments to reduce corruption, strengthen the rule of law, invest in the health and education of their citizens and thus to release indigenous capacity for development and create  far more enticing environments for global pools of capital and multinational investors, all to the end of enhancing the welfare of African peoples.  As the site of a speech laying responsibility for African poverty and underdevelopment at the feet of bad governance, he choose not Kenya, the notoriously corrupt and increasingly violent country of his father’s birth, nor Nigeria, the continent’s most populous state and leading oil exporter which tops even Kenya in the dimensions of its corruption and in the arbitrariness and violence of its politics, but Ghana, a country that had recently experienced the peaceful transfer of power through democratic elections, a country with relatively low levels of violence, less conspicuous corruption, and relatively high levels of civic participation. 

A fourth illustration of the Administration’s belief in soft power and its attempted exercise thereof was the President’s  announcement at the very outset of his term that torture and torture-like methods of interrogation were forbidden to American interrogators and his intention to close Guantanamo.  A final illustration of this current Administration’s belief in the efficacy of soft power is its reversal of the previous Administration’s overt hostility to the UN in particular and to the restraints of international law and international institutions generally.  For weaker states, however much they may themselves elide normative restraint and resist monitoring by intergovernmental organizations of their domestic behaviors, the UN and international law generally and the formal equality of states under international law represent in their minds important leverage against the powerful, leverage that in important areas such as the control of their on-shore and off-shore natural resources appears to protect them against the imperious thrust of powerful states  which in all earlier human epochs would have felt no inhibition about seizing resources in other jurisdictions.  Thus actions implying respect for the UN and international law are an invitation to cooperation resting on a conviction that the most powerful state of all can be trusted to seek solutions to common problems that will make all parties better off than if they acted on their own. 

 The sum of the matter, then, is that along two extraordinarily important dimensions for comparing the statecraft of Presidents, Barack Obama has already distinguished himself.

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Continuity we have to believe in (part III) – Trials.

Jason Ralph

It’s pretty much obvious from my two weeks spent talking and listening to people in DC that the continuities between the Obama and Bush administration outweigh the changes.  This is the third post on some general and incomplete notes explaining why I took this impression back to the UK.  The first post dealt with what I learned about US policy toward the ICC, the second post was on US detention policy under Obama.  This post will deal with the questions confronting the prosecution of Guantanamo detainees, in particular the question of what the detainees are being charged with and whether those are crimes that should be tried in federal courts or military commissions. 

The two aspects of this question are of course linked, what detainees are charged with influences decisions on where they are to be tried.  The concern is that – for whatever reason – there is a preference for military commissions over civilian courts and this is leading to inappropriate charges and a distortion of existing laws and norms of war.  So for example, the legal opposition to the prosecution of certain detainees centres on jurisdictional issues as well as a contestation of the facts.  Even if defence lawyers accept the government’s account of the facts (and they do not always do this) they have argued in the past that military commissions should not be exercising jurisdiction over their cases.  This is particularly so with the crime of ‘murder in violation of the laws of war’, which Omar Khadr and Muhammed Jawad have been accused of.  Click here and here for the respective charge sheets, details of their alleged crimes, and for the motions to dismiss on jurisdictional grounds, part of which is quoted below.  The issue in these cases is whether an unlawful combatant that kills or attempts to kill a US soldier is guilty of a war crime triable by military commission; or whether – as the defence has argued – those acts are ordinary crimes that should be prosecuted in the civilian courts of those states with an interest in the case (i.e. Afghanistan on whose territory the alleged crime occurred or the US whose soldiers were killed or injured). 

There is then quite a complex legal dispute behind the question of whether some ‘terrorists’, and specifically the detainees in Guantanamo, should be prosecuted in military commissions or federal courts.  I want to try to deal with this dispute and its significance for my broader research question before discussing the politics of that question and how it has seemingly divided the Obama administration.   It is worth saying at this point, however, that this legal dispute is set to be topical in the coming weeks because the Obama administration has chosen Omar Khadr to be the first trial to go before the revamped military commission system.  While Obama’s January 09 decision to suspend trials by military commissions suggested the possibility of a complete break with previous policy, the October 09 Military Commissions Act indicated continuity.  See my RA’s earlier posts on this blog.  If Khadr’s impending trial includes one of the most controversial aspects of the military commission system, – ‘murder in violation of the laws of war’ – then it is a further indication that ‘the law of 9/11’ continues to operate. 

The Bush administration’s decision to label al Qaeda and Taliban as ‘unlawful combatants’ did, of course, have consequences for the treatment of detainees while they were being held in detention.  We were told by the Bush administration that the Geneva Conventions, which would have protected the detainees from harsh interrogations, did not apply to the war on terror because those detainees were neither civilians wrongfully detained nor lawful combatants entitled to POW status.  They instead fell into a third category of ‘unlawful enemy combatants’ and they were not protected by international humanitarian law.  In addition, these detainees lacked the immunity that protects privileged combatants from being prosecuted when they kill soldiers on the other side.  Thus, unlawful combatants can, according to the Bush and Obama administration, be charged with the crime of ‘murder in violation of the laws of war’, which involves engaging in hostilities against US armed forces.  It stems from Military Commission Instruction No.2 of 2003, which defined the crime of ‘murder by an unpriviliged belligerant’ as follows:

Unlike the crimes of wilful killing or attacking civilians, in which the victim’s status is a prerequisite to criminality, for this offence the victim’s status is immaterial.  Even an attack on a soldier would be a crime if the attacker did not enjoy ‘belligerent privilege’ or ‘combatant immunity’.  

Following the Hamdan Supreme Court judgment – which insisted that Congress needed to legislate and that the laws of war did apply to the war on terror, specifically common article 3 on non-international armed conflict – the 2006 MCA redefined this offence as ‘murder in violation of the laws of war’.  This stated that any unlawful combatant

who intentionally kills one or more persons, including lawful combatants, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may direct.

Now, the question that defence lawyers in the Khadr and Jawad cases have tried to exploit is whether murder or attempted murder in the setting of a non-international armed conflict is a war crime (i.e. a violation of the law of war) that can be tried in a military commission.  In motions to dismiss the charge on grounds that the military commission lacked subject matter jurisdiction, they argued that even if their clients are guilty of murder or, in Jawad’s case, attempted murder, they could not be guilty of a war crime triable in a military commission.  International law – which the Supreme Court insisted applied to the war on terror and Congress accepted by adding the phrase ‘in violation of the laws of war’ to the 2006MCA definition of murder – defines a war crime as an attack on a civilian or individual hors de combat by a privileged combatant.  Nowhere in the modern laws of war does an attack on a privileged combatant by an unprivileged combatant constitute a war crime.  The defence argument accepts that such an attack is a crime, but they argue it is an ordinary crime triable in regular domestic courts, in this case the civilian courts of either Afghanistan or the United States.  This then is how the legal technicalities of the crimes Khadr and Jawad were charged with feed into the current political question of where to prosecute Guantanamo detainees. 

The defence’s arguments, which were made in 2008, did force a kind of concession from the government, which was that the mere status of being an unlawful combatant is not enough to be found guilty of a war crime.  In their response to the motion to dismiss, for instance, government lawyers argued that when Khadr and Jawad threw the grenades that killed (in Khadr’s case) and injured (in Jawad’s case) US soldiers, they were guilty of ‘perfidy’ or ‘treacherous killing’, and there is no doubt that these crimes are recognised as war crimes in the modern laws of war (see for instance Article 8 Section 2b(xi) of the Rome Statute).  This is significant, because it suggests that an al Qaeda or Taliban member that engages US forces in hostilities is not necessarily guilty of a war crime simply because he is a civilian engaging in combat (i.e. an unlawful combatant).  There has to be some other element to his action that demonstrates he is guilty of perfidy or treacherous killing and hence a war crime triable by military commission.  Seizing on this admission by the government, Khadr’s lawyers argued that he had not been charged with perfidy because the facts of his case did not match the elements of that crime.

Nothing in this specification alleges the elements of perfidy. It is not alleged that he feigned protected status, hors du combat, or even that he skulked up to unsuspecting U.S. soldiers, exploiting his civilian appearance to ambush them. He was a clear and lawful target of attack, as evidenced by our own soldiers initiating combat air support and ultimately shooting him twice in the back. On its face, the allegation is that he participated in conventional combat. But this does not allege a murder done in violation of the law of war.

The implication is that Khadr is not guilty of perfidy and he cannot therefore be charged with a war crime or prosecuted in a military commission.  Throwing the grenade at the US soldier was an ordinary crime of murder that was in violation of Afghan and American domestic laws.  He should therefore be tried in a federal court not a military commission.

Jawad’s lawyers also recognised perfidy as a war crime.  Article 504g of the Army Field Manual, they note, lists ‘use of civilian clothing by troops to conceal their military character during battle’ as a war crime.  Yet they further argued that ‘this example makes clear that it is not merely the lack of uniform that converts an ordinary crime into a war crime, rather it is disguising oneself as a civilian, or feigning being a civilian by otherwise lawful combatants – military troops – that is a law of war violation, namely perfidy.  Appearing out of uniform because you are a civilian and possess no uniform, or for purposes other than concealing one’s military character, is not a violation of the law of war.’  Understanding this allows one to dismiss as irrelevant the World War II Ex Parte Quirin case, which the government has relied on to justify the policy of prosecuting unlawful combatants.  Jawad’s defence team argued that in Quirin the accused were enemy combatants (they were German soldiers) that feigned civilian status by abandoning their uniforms in order to attack civilian targets in the US.  In contrast, Jawad was not behind enemy lines, he was where he was entitled to be, in Afghanistan.  He did not attack a civilian target, he threw a grenade at US military forces.  And he had not feigned civilian status by abandoning his uniform because he did not have a uniform to discard.  On this basis, Jawad should not be charged with perfidy, and because he has not committed any other war crime then he should not be prosecuted in a military commission.  If the facts of the case are right and Jawad did throw the grenade that injured US soldiers then he should be charged with the ordinary crime of attempted murder and prosecuted in an Afghan domestic court exercising territorial jurisdiction or a US federal court exercising jurisdiction according to the passive personality principle (i.e. the victim was a US citizen).  A similar argument was made, without specific reference to Jawad or Khadr, by Marco Sassoli in the ASIL conference panel of change and continuity in the war on terror.

Despite these arguments, the military judges on the commissions rejected the motions to dismiss citing a kind of sovereigntist argument that Congress has the right under Article I of the US Constitution to ‘define and punish’ offences against the law of nations.  This suited the Bush administration and those in Congress who opposed the use of federal courts to prosecute the Guantanamo detainees on national security grounds, but to the extent that these detainees are being charged with a crime that stems from what appears to be a peculiarly American interpretation of the laws of war then it does smack of exceptionalism.    As Geoffrey Corn and Eric Jensen put it, military commission crimes such as ‘murder in violation of the laws of war’ and ‘material support for terrorism’ (see Dominika Svarc’s earlier post on this) seem to be ‘motivated by the desire to avoid bringing such cases to trial in civilian courts.  While this may be both logical and even legitimate from a national security perspective, it does not comport with the subject-matter limitations historically associated with military war crimes tribunals.’ (The War on Terror and the Laws of War, Oxford University Press, 2009, p.179).  For the argument that this is vulnerable to challenge in the Supreme Court because it exceeds Congress’ authority under Article I of the US Constitution see Assistant Attorney General David Kris and Deborah Pearlstein’s testimony before the Senate Judiciary Committee July 28, 2009.

 It is significant then that almost a decade after 9/11 the Obama administration (a) still considers it necessary to use military commissions, (b) that ‘murder in violations of the laws of war’ reappears in the 2009 Military Commissions Act and, (c) despite the release of Jawad in August 09, Khadr is set to be the first detainee to be prosecuted before the new commissions.  Obama has said he wants to use all the tools at his disposable in the fight against terrorism.  The price of using military commissions in this way is potentially a new definition of war crime, one that is, to my knowledge, only accepted in the American military commission system.  The state of the American exception under Obama then appears to be rather healthy.  The implication of this for my project is quite telling.  If Khadr is charged with and found guilty of a war crime simply because he engaged the enemy as an unlawful combatant, it suggests that the principle of ‘battlefield equality’, (i.e. the principle that combatants on both sides can target each other’s military without fear of prosecution) is still being challenged despite the change of administration.  Of course, Khadr’s defence has not argued for the immunity from prosecution that comes with combatant / POW status.  But to the extent the US government is still arguing that Khadr is a combatant ‘guilty’ of killing US soldiers then this suggests a view of war where only one side is entitled to fight.  This is consistent with Carl Schmitt’s critique of liberal war, which is the starting point for my project.  If however, the defence wins and either gets Khadr transferred to a federal court to face the charge of ordinary murder, or gets the military commission to consider the case as one of perfidy (i.e. a war crime that is accepted by the international community) then one can conclude that US practice is more in line with the norm and the American exception is not so obvious.

To be fair to the Obama administration, it has clearly attempted to reverse the law of 9/11 in other cases involving the prosecution of Guantanamo detainees.  About 35 detainees have been identified by the task force for prosecution.  There are other more high profile cases to go before military commissions, for instance Abdal-Rahim Hussein Muhammed Abdu Al-Nashiri.  He is accused of murder in violation of the laws of war, despite the fact that the alleged crime in question took place in and around Aden, Yemen before 9/11 and therefore before the relevant armed conflict (i.e AfPak).  He is alleged to have killed 17 US sailors ‘by causing two men dressed in civilian clothing and operating a civilian vessel laden with explosives and detonating said boat-bomb alongside the … USS COLE’.  But the Obama administration also tried to transfer some high profile cases to a federal court, including the alleged 9/11 plotter Khalid Sheikh Mohammed (KSM).  He was set to face trial before military commission for ‘war crimes’ such as murder and destruction of property in violation of the law of war and attacking civilians and civilian objects, as well as conspiracy, intentionally causing serious bodily injury, hijacking or hazarding an aircraft, terrorism and providing material support for terrorism.  These charges beg the question of why KSM was transferred to a federal court when his crimes are seemingly a better fit to the normal war crimes definition (i.e. they involve attacks on civilians and civilian object) than Khadr’s or Nashiri’s.  The deciding factor here is seemingly a mixture of principle and pragmatism, which is something Brad Weigman of the DoJ National Security Division confirmed when he spoke at the recent ASIL conference.  This also comes across in the “Determination of Guantanamo Cases Referred for Prosecution” protocol released by the DoJ in July 09.  So, in reaching its decision on trial venue the government apparently considered

the nature of the offenses to be charged or any pending charges; the nature and gravity of the conduct underlying the offenses; the identity of victims of the offense; the location in which the offenses occurred; the location and context in which the individual was apprehended; and the manner in which the case was investigated and evidence gathered, including the investigating entities.    

As well as the

protection of intelligence sources and methods; the venue in which the case would be tried; issues related to multiple-defendant trials; foreign policy concerns; legal or evidentiary problems that might attend prosecution in the other jurisdiction: and efficiency and resource concerns

For human rights and civil liberties groups both of sets of reasons do not justify trial by military commission.  As noted above, they fear what Dominika Svarc, my RA, termed ‘the militarization of civilian crimes’ such as the murder of a US soldier by a non-combatant and providing material support for terrorism; and of course this feeds in to a concern that the only reason for military commissions  is to enable the government to secure the conviction that would otherwise be unlikely if federal courts had been the only option available.  The danger is again identified by Pearlstein in Congressional testimony

The single biggest threat to the legitimacy of the military commissions going forward is the danger that the commissions will function, in perception or reality, as a second-class form of justice for cases involving evidence insufficient to prevail in prosecution in a traditional Article III setting.

This may be both logical and even legitimate from a national security perspective – to repeat Corn and Jensen’s formulation – but it does not comport with the rhetoric of the President’s campaign speeches and inaugural address, which of course ‘rejected as false’ the trade-off between liberty and security.  

Again to be fair to the Obama administration it is apparently committed to only using military commissions to deal with the GTMO cases it inherited from the Bush administration.  There is a presumption, which is reflected both in Presidential speeches, Congressional testimony and the Protocol governing the determination of GTMO cases, that federal courts are the most appropriate forum for prosecuting terrorists.  Moreover, anyone visiting the DoJ website cannot fail to notice what amounts to a public information campaign on the relative success of the normal criminal justice system in securing the convictions of terrorists – the current score card since 2001 is apparently federal courts 319 v 3 military commission , as well as the defence of decisions to deal with new terrorists (such as Abdulmuttalab, Zazi, LaRose and Headley) through the criminal justice system.  For others who cite the effectiveness of federal courts click here and here.  It may well be then that liberals can – as I have argued in a previous post – give the administration the benefit of the doubt so long as post GTMO cases are dealt with either in federal courts or military commission that do not operate with an exceptional definition of war crimes nor militarize regular civilian crimes.  In other words, election year politics may force it to backtrack on the KSM decision but this could be forgiven by liberals if they accept this as an exceptional response to 9/11 and that new cases are not treated according to the law of that period.  Adopting two different tracks – one to deal with the exceptional post 9/11 period and the other to deal with new cases of terrorism, murders of US soldiers by civilians on the battlefield and war crimes – was also made by Deborah Pearlstein in recent testimony before the Senate Judiciary Committee.  

There is an intriguing question underpinning this which for me has not been properly answered: why does Eric Holder’s Department of Justice find it so difficult to convince Congress to trust the criminal justice system to deliver the outcomes that are consistent with national security?  To answer that question we need to go beyond legal analysis and even look beyond the day-to-day politics of Washington.  It requires understanding the roots of a conservative view that is, I suggest, deeply entrenched in American attitudes to law, particularly international law, and national security. On this, Stephen Holmes offers a helpful hypothesis in his contribution to Karen Greenberg’s edited volume The Torture Debate in America (Cambridge University Press, 2006, 118-135).  Holmes is discussing American attitudes to torture but I think it applies to the other exceptions I’m discussing in this project, including the subject of this post, trial by military commission.  Holmes suggests that regardless of the (in)ability of torture to provide good intelligence, its value for the Bush administration lay in signalling America’s willingness to do shocking things in the name of national security.  Torture has its own ‘logic of appropriateness’ so to speak.  I find this a convincing explanation for why the Bush administration was predisposed to believe and argue that torture works to make America safer.  Deciding to use unusual interrogation techniques spoke to conservatives who believe that there is a trade-off between liberty and security.  What is more it spoke to a conservative image of the United States, which sees it as the leader of the liberal world because only it (and certainly not those lily-livered Europeans) is capable of taking the tough decisions that are necessary to defend liberty.  The act of deciding the exception – whether it be to use torture or to prosecute terrorists in military commissions – appears to be driven by a genuine perception of the threat, but that perception is itself influenced by a need to justify responses that are preferred by conservatives because they demonstrate American exceptionalism.  Liberals approach this policy choice from a different direction.  While they can make realist compromises of principle in situations of exceptional insecurity they are less inclined to define the contemporary situation in such terms because unlike conservatives they do not have a need to demonstrate American difference through national security policy.

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Continuity we have to believe in (part II)

Jason Ralph

It’s pretty much obvious from my two weeks spent talking and listening to people in DC that the continuities between the Obama and Bush administrations outweigh the changes.  This is the second post setting out some initial, general and incomplete notes on why I take this impression back to the UK.  The first post talked about the emerging US policy on the International Criminal Court.  This post will talk about the detention issues in the continuing war.  It argues that while continuities are apparent, liberals might still give the Obama administration the benefit of the doubt because there is evidence that it is trying gradually to change the detention regime set up under Bush.

This first thing to note is that the Obama administration continues to view counter-terrorism through the war paradigm and this has major implications for the detention regime.  This was made clear by State Department Legal Adviser Harold Koh in his speech to the ASIL conference.  The idea that the US is at war is hardly contentious. The continuation, indeed escalation, of the counter-insurgency operations in the Afghanistan and Pakistan (AfPak) region is evidence of that.  What is contentious, and in certain respects surprising, is that the Obama administration continues to insist that the US is at war with the transnational network of jihadists we call al Qaeda.  There was an interesting moment in the Q&A following Koh’s speech when Vice-President of ASIL Mary Ellen O’ Connell suggested Koh’s speech indicated a continuation of the global war on terror.  Koh denied that was what he said.  He had, he noted, made clear that the US was not at war with every terrorist organisation.  It was only at war with al Qaeda and those who harbour them.  Yet this attempt to distinguish the new from the old administration is fairly weak.  No one seriously believed the US was at war with all terrorist organisations even under Bush, so to suggest Obama is different because he has narrowed the scope of the war to al Qaeda is a bit of red herring. The more obvious concern with the Bush administration’s approach was that it had invoked the war rather than law enforcement framework to counter al Qaeda and that because al Qaeda was a transnational organisation of global reach this impacted on the sovereignty and citizens of all states. The Obama administration’s insistence that the US is at war with al Qaeda wherever it may exist and not just al Qaeda in the AfPak region, does little to address this concern. 

I also came across signs that human rights groups were not so concerned about the deterritorialization of war and the application of the LOAC.  If they follow the administration in adopting the war paradigm to counter al Qaeda then it surely is an indication that counter-terrorism norms are shifting.  It is, admittedly, very hard to limit the application of the LOAC to territorially demarcated conflicts.  John Bellinger articulated this when he noted that he had lobbied against the use of the phrase “Global War On Terror” while serving the Bush administration but had accepted the globalised nature of the war against al Qaeda.  After all, he noted, al Qaeda attacks on the US and its allies were not limited to the AfPak region.  I have sympathy with this argument.  Yet it is only convincing to the extent that one sees al Qaeda in homogenous terms and sees all Islamist inspired attacks as somehow directed by the al Qaeda leadership.  This strikes me as unlikely.  It’s an empirical question that probably can only be solved on a case-by-case basis, but we have to be careful not to repeat the mistakes made by the anti-communists after World War II.  Treating all political opponents as part of a communist conspiracy directed by Moscow was wrong and counterproductive.  Treating all terrorist attacks as part of a global conspiracy organised by al Qaeda would it strikes me be equally mistaken.  Sabin Willet made reference to this kind of concern in the Friday morning ASIL panel when he suggested that Obama’s limitation of the war to al Qaeda, as opposed to war on all perpetrators of terrorist attacks, is no limitation at all if the administration reserves the right to decide who exactly is al Qaeda.  It appears this consideration is the subject of much debate across State and DoD.  See for instance Julian Ku’s post over at Opinio Juris and this article in the New York Times.

The US under Obama then continues to claim the right to target and detain individual affiliates of al Qaeda under the law of armed conflict (LOAC).  Like the Bush administration it refuses to recognise al Qaeda as common criminals, it does not acknowledge an individual’s right to arrest as a corollary of the right to life and it continues to oppose the Supreme Court’s insistence that detainees have a right to contest their detention in federal courts.  There’s been some discussion about the new administration’s decision not to use the term ‘unlawful enemy combatant’ to describe members of al Qaeda.  This too is a semantic difference, a point which was made by Marco Sassoli in the Friday panel on the administration counter-terrorist policy.  The key point here is that al Qaeda members are still treated as enemy combatants, regardless of their vicinity to the AfPak battlefield; and, as I will discuss in a later post on terrorist trials, the Obama administration continues to argue that al Qaeda members are unprivileged belligerents that can be prosecuted for engaging US forces in hostilities.  An issue here is that the US continues to have an expansive view of what constitutes a ‘war crime’.  Unlike the prevailing view in international criminal law, which is that war crimes are perpetrated against civilians or individuals hors de combat, the US argues that the killing of a US soldier in a combat situation by an unprivileged belligerent is a war crime.  As I will explore in the post to follow, this potentially challenges the principle that international law is applied equally to combatants on both sides of an armed conflict.  Before that post on terrorist trials, however, I want to say more on the issue of what the Obama administration calls ‘prolonged detention’.

There are 50 or so detainees that Obama’s task force determined were too dangerous to be released from Guantanamo but could not be prosecuted either by a federal court or a military commission because of a lack of admissible evidence.  The claimed legal basis for this detention is exactly the same as that put forward by the Bush administration – the Authorization of Military Force (AUMF) resolution passed by Congress in late September 2001.  This authorized the President to use ‘all necessary and appropriate force … in order to prevent any future acts of international terrorism against the United States’.  Now again, the Obama administration claims to be different to Bush here.  The President’s authority to act is, according to Koh, delegated by Congress through the AUMF.  The AUMF is not simply, as the Bush administration insisted, a political reaffirmation of the legal authority that exists in Article 2 of the Constitution (ie the Commander in Chief clause).  This implies the Obama administration would accept that Congress has the right to take away the President’s authority to use force here.  As a matter of constitutional law this is quite a big difference although, as John Bellinger noted, it is hard to believe Obama administration lawyers would not invoke the Commander-in-Chief prerogative if they were, as he put, ‘pinned to the mast’.  The more significant point here, however, is that as a matter of counter-terrorism policy it makes little difference if one accepts Congress’s right to withdraw the AUMF because right now Congress would not do it as a matter of politics.  It is perhaps an indication of how deeply embedded the war paradigm is in the American political psyche that the Obama administration can rely on Congress to sustain the legislation that authorizes the President to use all necessary and appropriate force.  Unlike the Bush administration, the Obama administration seemingly trusts the American people to be hardline on terrorists.       

The authority to use force invokes the law of armed conflict under which the US continues to claim the right to detain enemy combatants for the duration of the war.  Everyone on the Friday counter-terrorism ASIL panel agreed that some international law applied to this war, a point that was made necessary given a recent DC Circuit ruling in the al Bihani case that international law did not regulate US detention practices.  Given a strong sense that this will be overturned there’s little point lingering on it.  The more contentious point it seems is what kind of international law applies.  The problem for the Obama administration’s preference for prolonged detention is that there’s no way the war against al Qaeda can be interpreted as the kind of armed conflict (i.e. an international armed conflict) that enables states to detain prisoners of war indefinitely and without charge.  Al Qaeda is not a state actor so if the US is at war with al Qaeda then the law of non-international armed conflict applies.  This was recognised by the Supreme Court in the Hamdan judgment of 2006.  Yet the problem here is that the international law on non-international armed conflict is underdeveloped.  Read common article 3 – there’s not much to it.  There is some talk of addressing this gap by “analogizing” across to the international law on international armed conflict and indeed Brad Weigman (National Security Division of the DoJ and the man who headed the Obama task force on detention issues) acknowledged that this was being done in government circles.  But this process of analogizing across to the law of international armed conflict has its limitations.  For instance, al Qaeda would no doubt welcome this analogizing (as the PLO sort of did in the 1970s debate over Additional Protocol I) because they could claim immunity from prosecution if they took on the character of a non-state force as specified in article 4 of the third Geneva Convention.  So the Obama administration’s process of analogizing can only go so far. It still insists (as I mentioned above and will elaborate in a later post) that any act of war by al Qaeda is a crime because by definition al Qaeda operatives are unprivileged belligerants.

The alternative is to accept the non-international character of the armed conflict with al Qaeda and draw on international human rights law to flesh out what is not addressed by common article 3.  This point was made by Sassoli.  This, it seems, is beginning to happen to the extent that the US Courts have not accepted the government’s right to detain individuals without charge.  So, the habeas rights of detainees at Guantanamo were recognised by the Supreme Court in Hamdi (2004), and that judgment was reaffirmed in Boumediene (2008).  Sassoli said that this fact, which is accepted by the administration, shows that the US cannot be in a state of armed conflict.   Indeed in March 2009 the lower courts ruled in the al Maqelah case that these rights have to be extended to aliens detained in the detention facility at Bagram.  Yet the Obama administration has rejected this because it insists Afghanistan is a warzone.  The fact that the Obama administration decided to appeal this ruling is therefore further indication of the continuities with past detention policy.  Indeed, when Koh was questioned on this very issue, he cited the very same precedent – Johnson v. Eisentrager  – as the Bush administration did to justify the practice of prolonged / indefinite detention.   This litigation it seems is set to continue well into Obama’s first administration and we might yet have headlines about the executive constructing ‘legal black holes’ in Bagram.  We’ll also have to consider whether the US constitution follows the flag in Afghanistan or whether the extraterritorial extension of US law is, as Justice Scalia said in the Hamdi case, a case of American imperialism.  (This issue was raise in a European context by UCL Professor Ralph Wilde).

The issue then it seems to me is one of boundaries and types of activities: where does the ‘battlefield’ – the space that is regulated by LOAC – begin and where does it end? What kind of activities constitute participation in hostilities?  And can a civilian be labelled an enemy combatant when he is not engaged in those kind of activities?,  As the New York Times tells us, this first question is contentious across lawyers in the Departments of State, Defense and Justice. 

behind closed doors, the debate flared again that summer, when the Obama administration confronted the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia — far from the active combat zone — and was being held without trial by the United States at Guantánamo. Mr. Bensayah was accused of facilitating the travel of people who wanted to go to Afghanistan to join Al Qaeda. A judge found that such “direct support” was enough to hold him as a wartime prisoner, and the Justice Department asked an appeals court to uphold that ruling.  The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters. … Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case.  Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war — now or in the future.

Apparently, a consensus on this question has yet to emerge.  If this report is right, however, there is clearly potential for moving away from the idea that those with tenuous links to the armed conflict in AfPak can be detained under the LOAC.  The flip side of this is that there’s a potential for moving back to a regime where terrorists with no link to  the AfPak battlefield are mere civilians rather than enemy combatants and therefore to be detained under a law enforcement framework consistent with international human rights law.   The Abdulmuttalab case is again significant here.  He was arrested on Christmas Day after his attempt to blow up a plane that was far removed from the AfPak battlefield – it was flying over Detroit.  Consistent with Koh’s position as set out by Times he was Mirandized and held under a criminal justice framework.  If this is representative of the way terrorist suspects acting outside the AfPak battlefield are to be dealt with then liberals might take comfort in the gradual, but nonetheless real, attempts to turn the ship of state away from the law of 9-11.      

The problem with this is that there is little consensus on this.  As noted, DoD legal counsel are apparently opposed to drawing lines around a battlefield where the LOAC applies.  Likewise, there are those on Capitol Hill who are angry at the way Abdulmuttalab was treated.  Taking their cue from former intelligence chiefs, they argue that an intelligence opportunity was missed by putting the guy into the federal criminal justice system and insist that in the future all terrorist suspects should be treated as enemy combatants and held without charge for as long as they are an intelligence asset.  Congressional leaders (Collins, Lieberman, McCain) currently have bills to this effect.  

 Another aspect of the detention issue which I discussed while in DC was the question of what to do with the GTMO detainees not slated for trial either in federal courts or revamped military commissions.  As noted there are 50 or so that fit into this category, many from Yemen.  The administration’s claim to hold these in prolonged detention under the law of armed conflict and the AUMF is contested by the Courts.  As a political issue, however, the administration is desperate to transfer these to another location so that it can meet its campaign promise of closing Guantanamo Bay.  Its problem is that Congress will not, for various reasons, fund this plan and Congress it seems is using that leverage to make sure high value detainees like KSM are relabelled enemy combatant and prosecuted in military commissions, as well as to make sure administration’s do not automatically rule out using the LOAC to detain the like of Abdulmuttalab.   The White House, it seems, is willing to make the deals necessary to close Guantanamo, a fact which makes Attorney General Eric Holder look politically isolated when he insists on a criminal justice pathway for Abdulmuttalab and KSM. So the Wall Street Journal reported recently that the White House is working with Senator Graham on a deal whereby Congress will provide the funds to transfer the GTMO detainees to the Thomson detention facility in Illinois in return for a reversal of the administration’s decision to put KSM on trial in New York.  Again  there’s a sense in which the administration simply did not do the political groundwork necessary to sell Guantanamo closure, but it might just be that liberals can accept this kind of a deal if it finally closes the Guantanamo Bay detention.  Of course, there’d be a price to pay, especially if the Thomson facility became labelled “Guantanamo North”.  But then Obama might argue, as he has in the past, that the perfect should not be an obstacle for delivering the essential; and he may still persuade liberals that this is a temporary measure made necessary by the Bush administration’s policies.  The real test of whether such compromises are part of genuine attempt to turn the ship of state away from the law of 9-11 would be if future Abdulmuttalabs are transferred either to Guantanamo North or to Bagram.  If that happened then Obama is simply reshuffling the deckchairs on the ship of state and following the direction that was set by Bush after 9-11. As Koh stated in his speech, turning the ship of state around takes time, but there’s still doubt whether he and his boss will have the political skill to make sure it does properly turn away from the law of 9-11.

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Continuity we have to believe in (part I)

Jason Ralph

It’s pretty much obvious from my two weeks spent talking and listening to people in DC that the continuities between the Obama and Bush administrations outweigh the changes.  This is the first post setting out some initial, general and incomplete notes on why I take this impression back to the UK. 

This first post will be based on the evolving US position on the International Criminal Court and will be followed by posts on detention, interrogation and trials.  There is an attempt to put clear water between Obama and Bush by stressing a new engagement with the human rights institutions that were ignored (and indeed attacked) by the previous administration.  There’s no denying that this is taking place. So, as Harold Koh noted in his speech to ASIL, the policy of engagement with the UN Human Rights Council and the ICC is a difference and this was reiterated by several other contributors at that conference, including UN, ICC and NGO spokespersons. What’s interesting here is an explanation US Ambassador for War Crimes Stephen Rapp offered for this.  He noted on a panel this morning that we now have 111 state parties to the ICC. Given that fact, he added, there would be little international support for new ad hoc tribunals.  Here is an acknowledgement that the international community has acted as a counterweight to US power.  The US government it seems would still prefer to deal with the problem of impunity for crimes against humanity, war crimes and genocide on an ad hoc (read politicised) basis, but the international community will not have it.  For those realists that believe international law and society is merely an epiphenomenon of material power this is an anomaly that cannot be explained.  For me and others that adopt a constructivist approach, it demonstrates the power of international norms and self-images of national identity.

It is also clear, however, that the US is far from becoming a state party to the Rome Statute and will oppose the efforts to have the Court exercise jurisdiction over the crime of aggression.  I tend to agree with Koh and Rapp, who both spoke at the ASIL conference, that the efforts to define aggression will be a distraction for the Court as it tries to prosecute crimes against humanity, war crimes and genocide.  On this Rapp seized on an Obama quote that was offered to the panel by Ben Ferencz – the son of the Nuremberg Prosecutor who was also in the audience (indeed the panel was dedicated to him). The Obama quote offered related to health care reform – ‘we can no longer let the perfect be the opponent of the essential’.  Rapp took this to mean the international community should compromise on its efforts to define aggression and, as Koh suggested, concentrate only on prosecuting crimes against humanity, war crimes and genocide.  Rapp added during this morning’s panel that the new administration is happy cooperating with the Prosecutor in the pursuit of justice for the existing cases involving these crimes, and indeed the whole panel commented on the constructive approach of the US delegation at this week’s Assembly of State Parties in New York.  The US has also offered to meet with the Prosecutor to discuss further ways of collaborating, something that was also welcomed by the Prosecutor’s office.

Now, I’m conflicted about this approach.  On the one hand it’s good that the US is cooperating with the Court and if it expedites justice in the cases being investigated then that has to be welcome.  But at the same time, the Obama administration adopts the same ‘concerns’ with the Rome Statute as the Bush administration and refuses to even consider the possibility of putting a (re)signed Treaty before the Senate for ratification.  Admittedly the chances of ratification are small given the 2/3rds majority criteria, but there are still aspects of the US position on the Court that are troubling.  Specifically, the policy of assisting a court to prosecute the crimes of others while insisting on exemptions from that court’s jurisdiction is essentially a continuation of the ad hoc approach to international criminal justice, and as I point out in the final chapter of my book on the ICC, it cannot help but challenge the legitimacy of the Court in the eyes of the communities that are the subject of an ICC/US investigation.  Now, as I said one should not exaggerate the cost of the US position especially if it brings justice to those who have committed crimes against humanity, war crimes and genocide.  It would be better if the US pursued this policy of cooperation as a state party but we should not let perfection be the opponent of the essential.  Yet at the same time, we shouldn’t kid ourselves that this essentially hypocritical position is cost free.  Justice will inevitably be seen to be selective – particularly when, as Ben Davies of Toledo repeatedly reminded the conference, there are outstanding questions regarding accountability for the Bush administration’s act of aggression against Iraq and for its acts of torture in the wider war on terror.

So what exactly are the Obama administration’s concerns?  Based on Rapp’s presentation this morning it seems to me there are two kinds and these map on to what I called in my book a reconcilable and an irreconcilable position.  The reconcilable objections – and again this is only based on listening to Rapp this morning – seem to be those to do with aggression and the definition of war crimes.  So for instance, and Koh pointed to this in his speech, there is doubt what the term ‘manifest’ means in proposals to define the crime of aggression, he also suggested that aggression can’t merely mean a crossing of borders but should be on a scale that leads to the destruction of whole society like Iraq and Kuwait.  His choice of this example and the decision not to include US invasion of Iraq was obvious and no doubt embarrassing to some.  But nonetheless, this US concern could be reconciled if the review conference decided simply to abandon efforts to define aggression and concentrate on the three crimes it has existing jurisdiction over. 

The other objection that falls into the reconcilable category is the concern that the definition of war crimes says the court will look ‘in particular’ at crimes that are systematic and part of plan.  To the US this suggests it can look at other acts that are not part of a plan and that raises concerns that the individual ‘mistakes’ rather than systematic policies will draw the attention of a prosecutor, particularly one that sees a political need to prosecute a US soldier in order to ‘balance’ the charge sheet and demonstrate impartiality as well as independence.  This, Rapp suggested, was a reconcilable objection.  Either the phrase ‘in particular’ be deleted or the US waits to see how the jurisprudence and practice emerges on this.  If the only war crimes prosecuted are those of a systematic nature then maybe the US can live with the court.  But of course that will take years to discern and even then …

Still, one might give Rapp, Koh and the Obama administration the benefit of the doubt and recognise that the constructive engagement is substantively different to the Bush administration.  But then there was a strange moment in Rapp’s presentation when the irreconcilable position demonstrated its continuing influence.  Rapp suggested the US is uniquely exposed to the judicial process because of its great power status and because, to repeat former Secretary of State Madeline Albright, the US is ‘the indispensable nation’.  Now this is pure exceptionalism (despite Bill Pace of CICC denying that the new administration was exceptionalist).  It is a reality that US power is needed for international security operations that other states cannot fulfil, but it simply does not follow that the US should fulfil this role by being exempt from the rules of international criminal justice, the same rules  that in many ways define what is to be a civilised member of international society.  We do not (or maybe the US does?) put our executive above domestic law when it enforces that law, so why should the United States expect international society to do the same. 

The argument I advance in my book is that US opposition to the Court ultimately stems from this exceptionalist position.  It is a position deeply embedded in a political culture that assumes the US is a different kind of great power, one with a  particular mission; and the way to demonstrate that difference is to exempt itself from the laws that it expects others to abide by.  The fact that the Obama administration still feels the need to refer to this demonstrates how powerful that narrative is.  Indeed Rapp articulated this in a different formulation this morning.  For example, he suggested at one point that there was something wrong with ‘putting the protector in the same box as the aggressor’.  I took this to mean the state intervening to stop a humanitarian atrocity should not be held to account before the same laws as those committing the atrocity.  This is a dangerous conflation of jus ad bellum and jus in bello such that the side claiming to be just claims a right to act without restraint, or an exemption from the accountability mechanisms of the community on whose behalf it is acting.  The Bush administration took that argument to the extremes and I don’t expect the Obama administration to follow  (see the forthcoming post on interrogation and trials).  But still, this unequal application of the law is simply not in the best traditions of American or cosmopolitan conceptions of democracy and accountability.  There’s still, therefore, plenty to be concerned about on US policy toward the International Criminal Court, despite the change of administration.

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Combatants or Criminals?

The New York Times reported yesterday that 5 American citizens from the Washington DC area have been charged by a Pakistan court with “plotting attacks in Afghanistan, raising money to commit terrorism and planning attacks against Pakistani allies and targets within the country”.  Now, if we remove the second of these charges, it sounds like these individuals were travelling to a battlefield to wage war.  So why have they not been labelled ‘unlawful enemy combatants’ and held indefinitely until they are put on trial by a military commission?  That of course would have been the implication had the Pakistani authorities taken the line being espoused by some in the US following the Abdulmuttalab case.  Rather than risk corrupting Pakistan’s criminal justice system to deal with suspected American terrorists, Pakistan should – the argument goes – treat these individuals as unlawful enemy combatants and deal with them under the law of armed conflict.  I wonder what the American response to that would have been?  Given that American grown jihadists – the list of which is growing – have not been detained under the law of armed conflict, there would likely have been much protest.  This risk of course is that such a protest would have appeared hypocrtical in the context of the arguments but forward to justify prolonged detention and trial by military commission for foreign individuals travelling to the US to commit terrorist acts (eg Abdulmuttalab).

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