war on terrorism

The D.C. Circuit has refused to block the release of videos showing a prisoner at Guantanamo Bay being force-fed, The Intercept's Cora Currier reports. Media organizations are seeking footage of Abu Wa'el Dhiab's force-feedings, and the district court granted their motion to unseal and release the video.

The court concluded that the district court's decision was not an immediately appealable order and that it lacks jurisdiction

The D.C. Circuit has refused to block the release of videos showing a prisoner at Guantanamo Bay being force-fed, The Intercept's Cora Currier reports. Media organizations are seeking footage of Abu Wa'el Dhiab's force-feedings, and the district court granted their motion to unseal and release the video.

The court concluded that the district court's decision was not an immediately appealable order and that it lacks jurisdiction

Andrew F. March and Mara Revkin have a fascinating analysis in Foreign Affairs of the legal underpinnings of the Islamic State (ISIS)'s efforts to build an Islamic Caliphate state. They note that ISIS is governing millions of people and sees itself as building an authentic legal order based upon a "social contract with the Muslim population it aspires to govern." For example, ISIS has issued administrative guidelines for groups wishing to pledge allegiance to the caliphate, set up courts and has criminalized threats against the state and public order, crimes against religion or public morality and crimes or torts against particular individuals.

Here's a good excerpt on ISIS' theory of governance: "The caliph is seen as a custodian of divine law. His power is not portrayed as absolute, but he does have plenty of room to issue laws and policies. The system follows a classical Islamic theory of statecraft known as siyasa sharʿiyya. The term means “religiously legitimate governance,” but it implies more than just the application of formal sharia. Instead, it sets up a kind a dualistic model of law and governance. On the one hand, the system requires sharia courts for the application of Islamic legal rules in routine matters for which specific rules exist. But it recognizes that rules do not exist for every conceivable matter. And so the 'siyasa sharʿiyya' theory posits that there are legitimate authorities—from market inspectors to military commanders and governors up to the caliph himself—that have the right to make lawlike decisions as long as those decisions are issued solely with the welfare (maslaha) of the Muslim community in mind and do not violate known laws."

President Obama's revelation last week that a counterterrorism operation let to the accidental killing of an American and an Italian hostage, as well as two Americans associated with Al Qaeda, has once again raised the circumstances under which the U.S. can use lethal force to target American citizens abroad, The Christian Science Monitor's Anna Mulrine reports: "A 2011 Department of Justice memo says that to legally order the death of a US citizen without a trial, the government must determine that the citizen is 'a senior Al Qaeda leader or an associated force' who is 'actively engaged in planning operations to kill Americans.'"

Christopher Swift, adjunct professor of national security studies at Georgetown University in Washington, told CSM that the memo is the only legal authority out there about when American citizens can be killed without trial in the name of national security. The problem is the memo's "'reliance on due process is vague,'" Swift said.

Judy Dempsey, writing for Carnegie Europe, argues that, in the wake of a dozen people being killed at French satirical magazine Charlie Hebdo, European governments should be encouraged "to protect press freedom and other civil liberties, not restrict them.": "Freedom of the press is inextricably tied to universal values and is not an exclusively Western liberty. To curb that freedom now, and for anti-Islam movements at the same time to use the attacks on Charlie Hebdo to incite hatred against Muslims, would undermine the civil liberties and tolerance espoused by the West."

Right after 9/11, the CIA was given the power to imprison Al Qaeda terrorists, The New York Times' Matt Apuzzo and James Risen report. And the initial plan was to keep those jails in adherence to U.S. standards for federal or military prisons, according to the Senate Intelligence Committee report released this week on the spy agency's harsh interrogation program. But when Abu Zubaydah, a Qaeda logistics planner, was captured in Pakistan in March 2002, he was the first high-level terrorist to be caught. He was kept alone in a cell in Thailand for 47 days while the CIA and the Justice Department debated the legality of using harsh tactics like waterboarding, the Times reports. Then, "for three weeks in August 2002, Mr. Zubaydah was questioned using the harshest measures available, including waterboarding. But the Senate report says he never revealed information about a plot against the United States. The CIA concluded he had no such information."

"What a difference a year makes," writes Colum Lynch in Foreign Policy. In light of the Islamic State of Iraq and the Levant's recent uptick in activity, including the beheadings of several Western journalists, "discussions about surveillance ... no longer fixate on the NSA's massive electronic spying that contractor Edward Snowden revealed when he leaked the spy agency's internal documents." Law professor Steve Vladeck told Foreign Policy that the effort to reform surveillance has been "'totally overtaken by ISIS.'"

Lynch was writing before the U.S. Security Council adopted a U.S. drafted-resolution to more widely suppress the travel and other activity of suspected jihadists. But his point was made even more strongly by the measure's enactment. Human Rights Watch's Andrea Prascow told Levant that the resolution does not detail how alleged jihadists and terrorists will be afforded due process regarding their right to travel.

The Washington Post has an editorial arguing that some progress has finally been made on closing Guantanamo. The Post writes that the Senate voted this month "to preserve language in the pending National Defense Authorization Act that would ease restrictions on repatriating Guantanamo detainees and allow their transfer to the United States for trial, detention or medical treatment." However, The Post reports that the defense bill is in danger of not passing for the first time in 51 years.

Overall, "a legal regime will be needed for the arrest, interrogation and long-term detention of foreign terrorist suspects who cannot be handled by the domestic U.S. justice system" after Guantanamo is closed, The Post concludes.

ALM's The Legal Times reports on en banc arguments held yesterday "in a case that could undo a terrorism conviction and reshape how the government prosecutes criminal charges against other detainees held at Guantanamo Bay, Cuba."