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Living in wartime since 2001

Nov 05, 2010 Living in wartime since 2001

The United States has been living in wartime since 2001 (earlier than that, many peaceniks might say). The American economy tailspinned starting five years later — and I wonder if the collapse would have been as early, deep, wide, severe and lengthy without the huge expense of wartime — and yet in my daily life, I see a veneer as if things are as normal as before the wartime started. I suppose that is partly because the people who are hardest and most directly hit by the battered economy and war are trying to put on the best face to at least get through the day, and that those less directly hit wish to avoid thinking such unhappy thoughts.

I see judges using legalisms to continue granting extraordinary wartime powers first to George Bush, II, and now to President Obama on such matters as Guantanamo detentions and trials, and domestic spying, as extraordinary presidential power continues being exercised in running warfare, assassinations, and CIA interrogations in countries less hospitable to individual liberties than would happen in the United States. We would be lucky to wake up to learn that Franz Kafka had merely induced us into sleep and scripted a nightmare of such ongoing exercise of executive power.  

Today, the D.C. Circuit confirmed that the U.S. government may detain people for being "part of al-Queda" when captured, after noting how at the time in 1991 that the habeas corpus petitioner Mohammedou Ould Salahi had sworn allegiance to al-Queda, "al-Qaida and the United States shared a common objective: they both sought to topple Afghanistan’s Communist government." Salahi v. Obama, ___ F.3d ___ (D.C. Cir., Nov. 5, 2011). 

Salahi remanded the case to the trial court with instructions on factors to consider in determining whether Salahi was a part of al-Queda at the time in question, including:

Although we agree that Awad and Bensayah require that we vacate the district court’s judgment, we think the better course is to remand for further proceedings consistent with those opinions. Because the district court, lacking the guidance of these later decisions, looked primarily for evidence that Salahi participated in al-Qaida’s command structure, it did not make definitive findings regarding certain key facts necessary for us to determine as a matter of law whether Salahi was in fact part of al-Qaida when captured. See Barhoumi, 609 F.3d at 423 (noting that whether the facts found by the district court are sufficient to establish that an individual was part of al-Qaida is a legal question that we review de novo). For example, does the government’s evidence support the inference that even if Salahi was not acting under express orders, he nonetheless had a tacit understanding with al-Qaida operatives that he would refer prospective jihadists to the organization? See Salahi, 710 F. Supp. 2d at 10“12. Has the government presented sufficient evidence for the court to make findings regarding what Salahi said to bin al-Shibh during their discussion of jihad and Afghanistan? Id. at 11. Did al-Qaida operatives ask Salahi to assist the organization with telecommunications projects in Sudan, Afghanistan, or Pakistan? See id. at 12“13. Did Salahi provide any assistance to al-Qaida in planning denial-of-service computer attacks, even if those attacks never came to fruition? See id. at 13. May the court infer from Salahi’s numerous ties to known al-Qaida operatives that he remained a trusted member of the organization? See id. at 16 (Salahi . . . associated with at least a half-dozen known al-Qaida members and terrorists[] and somehow found and lived among or with al-Qaida cell members in Montreal.); cf. Awad, 608 F.3d at 3 (noting that the al-Qaida fighters Awad joined treated [him] as one of their own). With answers to questions like these, which may require additional testimony, the district court will be able to determine in the first instance whether Salahi was or was not sufficiently involved with [al-Qaida] to be deemed part of it. Bensayah, 610 F.3d at 725.

Salahi

We certainly live in a world where too many people are willing to kill and injure others in an effort to advance their political, religious and personal goals. However, warfare by the United States government and military always risks greater harm to people’s Constitutional rights and individual liberties. We must remain on guard for our liberties and the liberties of everyone else always, particularly now.

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