Friday, November 28, 2008

Are We at War or Prosecuting Criminals?

Dr. Walid Phares

Last Thursday’s order by a federal judge to release five Algerian detainees from Guantanamo Bay prison reopens the complex debate about the principle of holding prisoners of war during wartime. But, and this may be even more important, it also reopens the debate inside the three branches of government in the United States over whether our nation is actually at war or not.
The case at hand will certainly be discussed by legal specialists on both sides of the debate. Here is the chain of legal events that will be scrutinized: The first “civilian court” ruling – for terrorism suspects who have challenged their detention –- found that the five men “could not be held indefinitely as enemy combatants.” Thus, in this instance U.S. District Judge Richard J. Leon has essentially informed the government that failing an official and legally declared war, one cannot detain individuals who have not been proven guilty of crimes or of material participation in terrorism.
Last summer the Supreme Court granted the Guantanamo detainees (see the Boumediene case) “the right to challenge their imprisonment.” The real statement there was that since there is no legal basis for the War on Terror, the so-called “prisoners of war” are in fact detained under the principles of criminal law not the international law of war.
So when U.S. forces arrest individuals suspected of being enemy combatants the government must prove that each individual was actually waging war. But since civilian courts do not recognize the “existence” of such war, the government must prove that each person detained was physically involved in an illegal act leading to violence against the United States or its allied interests.
Judge Leon ruled that the U.S. government “failed to prove that five of the six Algerians held at Guantanamo Bay since January 20, 2002, were enemy combatants headed to Afghanistan to fight against the United States.” According to FOX News, “a senior Department of Defense official said the government’s case was hampered because the CIA would not hand over the classified information it had obtained in interrogating the 6 suspects.” If the CIA had released the evidence, would the court have ruled otherwise?
What these legal developments tell us is that the United States’ counterterrorism campaign is squeezed between two worlds: On the one hand, our nation’s leaders have been acting as if we are in a state of war with an enemy; and on another hand the Judicial system is telling us that it is basing its rulings solely on criminal law.
Meanwhile the Jihadists are winning. They meet U.S. forces on the battlefield and ask to be treated under the Geneva Conventions — which they do not recognize to begin with. If they are apprehended and brought into custody, they expect to swim through the legal system. In conventional wars, when a unit from the enemy forces is captured, the courts do not rule on each fighter’s particular posture at the time of capture. When you listen to the judges’ rulings on the detainees’ individual cases, they appear to be on solid ground, upholding the Constitution. But when you contrast their rulings with the government’s view then the process seems tragicomic.
A state of war with an enemy has its own logic and its own procedures. Enemies are kept under the Geneva Conventions’ protection until the conflict ends. War criminals are tried under international law. Fighters or enemy combatants cannot be tried in civilian courts as criminals. But if there is no state of war, then there shouldn’t be detention centers to begin with. Apprehended criminals are processed under the laws of the land and courts are sovereign in dealing with the fate of each and every suspect under arrest. In short we can’t have two legal tracks at once. — Either the U.S. is at war with a global enemy or is it not.
The Bush administration has struggled with the legal consequences of its War on Terror. The Obama administration will inherit the issue and must make a decision. It can continue with the hybrid system we have now, perhaps pushing it further towards a criminal procedure while U.S. forces wage a full-fledged war in Afghanistan –- if not elsewhere. If America won’t withdraw from the region as requested by al Qaeda and Iran, she will continue to find herself in a confrontation with her enemies – some of whom may be captured. What lies ahead for the United States will be more complicated than even our current situation.
My advice to the forthcoming administration is to begin at the top, where the current administration has stopped: Identify the enemy and take a stand on the global conflict.

Report: Officials mishandled security breach at Fla. airport

WASHINGTON — A security breach at Orlando International Airport last year that led to increased scrutiny of airport workers nationwide was mishandled by officials, possibly in violation of security rules, a federal report says.

The incident on March 5, 2007, in which an airline worker for Delta subsidiary Comair sneaked 14 guns on board an Orlando-to-Puerto Rico flight, prompted calls for the Transportation Security Administration to screen everyone working at an airport.

The plane, Delta Flight 933, landed safely at the San Juan airport where the worker, Thomas Anthony Munoz, was arrested. A Homeland Security Department inspector general report says the mishandling raises broader concerns.

"Delta might have failed" to follow a security procedure requiring airlines to immediately notify the TSA of a possible security threat, the report says. ....

Fidayeen had second boat with ammo on standby

by Vicky Nanjappa and Krishnakuma

Intelligence Bureau inputs suggest that the fidayeen who stormed Mumbai had conducted a thorough recce of both the Taj Mahal hotel [Images] and Trident (formerly Oberoi) hotel.

IB sources told rediff.com that two teams had checked into the hotels four days before the attack, and used the time to stash away ammunition there. During their stay as guests in the hotel they also thoroughly studied its layout. On the day of the attack, an unspecified number of attackers joined them. The IB says in all there were 20 fidayeen who took part in the terror attack that terrorised Mumbai.

It is also said that while a certain number of the terrorists had already entered Mumbai and taken shelter in the two hotels, 12 more persons came into Mumbai through the sea-route. While initially it was suggested that the attackers came in from Karachi, investigators are also probing claims made by fishermen in Kerala [Images] that a ship unknown to their parts was sighted. The IB is now probing whether this was the mother ship that brought in the attackers.

Incidentally, newspapers in Kerala had reported a while ago on an unknown ship in Indian waters. The IB says if this was the same ship, then they had evidence that it may have come in from the Persian Gulf.

Intelligence agencies are now probing as to at which point the attackers switched to the boat in which they reached Mumbai. They, however, confirm that there was a second boat which was on standby, and this boat was laden with extra ammunition as they were sure it would be a long-drawn battle.

While some of the terrorists who came by sea joined the respective groups at the two hotels, one team from the remaining group stormed Nariman House. Sources say this attack was planned keeping in mind two things: one, it housed Jews from Israel, and second, it fell within the vicinity of both the Taj Mahal and Trident hotels, making the operation easy.

Mumbai attacks: Investigation focuses on Pakistan

Following the atrocity in Bombay, the focus is now on the area fuelling the Islamist jihad.