The Flaming Hypocrisy Of US Terrorist Designation
[Note Update Below]
On the fateful September 11, 15 men from Saudi Arabia, along with four others, perpetrated the attacks on the World Trade Center in New York. Since that time, the United States has invaded Afghanistan and Iraq in response with hundreds of thousands dead in the process. Saudi Arabia was not only never considered as an enemy, its citizens were spirited out of the country while US citizens were grounded.
Also since then a list longer than you can measure of countries and/or entities have been designated as global terrorists by the United States government. One of those so designated is al-Haramain of Oregon, who happens to be the root plaintiff in the critical litigation – pretty much the sole remaining substantial hope of challenging the incredible, illegal and unconstitutional executive power grabs by the Bush/Cheney Administration now hypocritically supported and adopted by the Obama Administration.
In spite of the fact there has never been any substantive link to terrorism, much less September 11, on the part of al-Haramain Oregon, the US government has steadfastly maintained it on the designated list. Now maybe al-Harmain was, and maybe it was not, even remotely involved in terrorism in any provable way; however the one irreducible fact is the US has never, despite repeated challenges, anted up any convincing factual support on the record for the allegation.
In fact, while al-Haramain Oregon is defunct and no longer exists in any form, the US has stood mute and even gone so far as to allow an US Federal Court to declare their wiretapping of al-Haramain’s attorneys, nearly a decade ago, patently illegal. All the while still maintaining the long defunct and non-existent charity on the specially designated terrorist list and so cocksure and adamant about it that the government has stated they cannot allow any judgment to be entered, much less settle, the al-Harmain litigation because they could not possibly think of a designated terrorist organization receiving one red cent from the US government.
Such is the seriousness of actions that could lead an entity to be designated a terrorist by the United States government. Well, except for the Saudis of course. And now, apparently, the Pakistani Taliban. From Mike Isikoff at Newsweek Declassified:
In light of evidence that the group known as the Pakistani Taliban was behind the attempted May 1 Times Square bombing, the Obama administration is “actively considering” designating it as a ”foreign terrorist organization” in the next few weeks —a move that would allow the U.S. government to freeze any assets belonging to the group and make it a federal crime to assist the group, officials said Tuesday. But the disclosure, first made by State Department spokesman P.J. Crowley, immediately raised questions among some counterterrorism experts as to why Washington didn’t act sooner. “I’m pretty surprised that it has taken the U.S. government such a long time to do this,” says Hassan Abbas, a Columbia University professor and former Pakistani police officer who is considered the leading academic expert on the Pakistani Taliban. “This is certainly one of the most lethal [terrorist] groups in South Asia and I would rank it in the top five of all international terror groups.”
Now, granted, there is a technical distinction between the specially designated terrorist organization list by the Treasury Department that al-Haramain is on, and the “foreign terrorist organization” list by the State Department Isikoff describes; however, the asset freezing and general tenor are effectively coterminous. So, it is pretty interesting the Obama Department of Justice clings so desperately on the designation of the defunct and no longer existent al-Haramain while fretting and vacillating so strenuously over the Pakistani Taliban.
Golly, you would almost think the US government is prone to using their prohibited terrorist designations in some kind of shell game for political expediency. Awfully convenient for an Obama Administration in need of a handy excuse to continue propping up Bush/Cheney patent illegality on the warrantless wiretaps of the terrorist surveillance program; powers they have relentlessly protected and expanded for their own use. I wonder what Judge Vaughn Walker would think of such hypocrisy?
UPDATE: As Marcy noted, there is a new decision from the Northern District of Ohio in the case of KindHearts Charitable Humanitarian Development v. Geithner affecting the issue of terrorist designation. Here is the full order. These lines in the intro to the court’s discussion lay out the gist:
OFAC’s authority to designate SDGTs and block the assets of entities under investigation for supporting terrorism stems from the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-06, and Executive Order 13224 (E.O. 13224).
On August 18, 2009, I found that in blocking KindHearts’ assets, the government violated KindHearts’ constitutional and statutory rights. KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner (KindHearts I), 647 F. Supp. 2d 857 (N.D. Ohio 2009) (August 18 Order) [Doc. 87]. I found that, in blocking KindHearts’ assets, the government: 1) violated KindHearts’ Fourth Amendment rights by failing to obtain a warrant based on probable cause; 2) violated KindHearts’ Fifth Amendment rights by relying on criteria for the BPI that are unconstitutionally vague as applied, and by failing to provide KindHearts with adequate notice and a meaningful opportunity to respond; and 3) acted arbitrarily and capriciously in limiting KindHearts’ access to its own funds to pay counsel for its defense. Id. I reserved ruling on the remedies for these violations. On October 26, 2009, I temporarily restrained OFAC from proceeding with designation of KindHearts as an SDGT pending my determination of the appropriate remedies in this case. KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner (KindHearts II), 676 F. Supp. 2d 649 (N.D. Ohio) (October 26 Order) [Doc. 106].
A couple of points are in order. First, a still appealable decision by the District Court in Northern District Ohio (NDO) is not particularly binding precedent on the DC District and Circuit, which is where the Pakistani Taliban designation would be made. Secondly, as noted in the main post, the Pakistani Taliban designation consideration appears to be one of “Foreign Terrorist Organization” by the State Department as opposed to the SDGT designation by Treasury which was the subject of the NDO decision.
That said, KindHearts is extremely important and almost unquestionably would have factored very heavily into the consideration, and speed of consideration, of whether or not to designate the Pakistani Taliban. It does not however, explain the uneven and inconsistent designation strategy under the Bush/Cheney regime, some of which are still being defended now (including al-Haramain). For the record, I do sure wish I had known about the KindHearts case before; it is a significant case with sound Constitutional reasoning and absolutely affects the subject of my original post.
One shell game could lead to a court judgment, a public record of crimes of the state. The other is just politics, a tool of diplomacy that can be bandied about as if it were a curtain rod used in a child’s game of swordplay. Not much 11-dimensional chess there, just incurious continuation of Bushness as usual.
Thanks for this, bmaz.
I think that maybe ObamaCo. thought they could get away with looking forward, not back. However, I think Vaughn Walker is schooling them in the fine art of unresolved consequences that cannot be swept under the rug. Perhaps it’s a bit like thinking that you can ignore that moldy spot in the corner of the rug down in the basement. The rot, untreated, will spread, whether you pay attention to it or not.
Sooner or later, the price of ignoring something can become intolerable, as the consequences of neglect spread and ramify.
The Bush administration tried to ignore the effects of Hurricane Katrina. But in the end, they paid a high price for those attempts to look forward, not backwards. And strangely enough, the consequences were not confined to New Orleans, or even southern Louisiana.
Bob in AZ
Yes, let’s peek backwards.
Crew is forming the posse to weed out the e-mail destruction capers with their “Prayer for Relief” yesterday (Our e-mails who art in limbo…”)
“E-mails? We ain’t got no e-mails. We don’t need no e-mails! I don’t have to show you any stinking e-mails!”
http://www.citizensforethics.org/node/44968
Saudi Arabia was not only never considered as an enemy, its citizens were spirited out of the country while US citizens were grounded.
Kagan helped shield Saudis from 9/11 lawsuits
But Kagan, acting as President Obama’s Solicitor General, argued that the case should not be heard even if evidence proved that the Saudis helped underwrite al Qaeda, because it would interfere with US foreign policy with the oil-rich nation. She posited “that the princes are immune from petitioners’ claims” because of “the potentially significant foreign relations consequences of subjecting another sovereign state to suit
But Kagan, acting as President Obama’s Solicitor General, argued that the case should not be heard even if evidence proved that the Saudis helped underwrite al Qaeda, because it would interfere with US foreign policy with the oil-rich nation. She posited “that the princes are immune from petitioners’ claims” because of “the potentially significant foreign relations consequences of subjecting another sovereign state to suit
http://rawstory.com/rs/2010/0511/kagan-helped-shield-saudis-911-lawsuits/
Just doin her job
“The princes are immune” basically summarizes the Obama administration.
Thanks, bmaz;
One does wonder what Judge Walker would make of this.
However, unless the issue should come before him, in some fashion, the “coterminous” reality you rightly highlight, might well cause Walker some pause, what can he do about it?
This goes to the heart of the potentially fatal flaw, within the law itself that I hoped (and hope) you might address last evening at EW’s “due process of torture”/s post.
One hopes that judges may put 1+1 and even 2+2 together, and then, ask some serious questions, especially given the behavior of the Bush-Cheney and Obama-Biden administrations (Biden is no Cheney, but he bears some responsibility … for his glib silence, if nothing else …)
Such scrutiny AND action being vitally necessary, if Congress, the President, AND SCOTUS are aligned in their dangerous perversity.
DW
If I were in Walker’s shoes, I think I would find myself asking, “Who/what is the third party in this mess?” IANAL and IANAJ.
The fact that there is consistency in behavior between administrations would lead me to wonder what is the source of the consistency?
Thanks Bmaz.
“On the fateful September 11, 15 men from Saudi Arabia, along with four others, perpetrated the attacks on the World Trade Center in New York. Since that time, the United States has invaded Afghanistan and Iraq in response with hundreds of thousands dead in the process. Saudi Arabia was not only never considered as an enemy, its citizens were spirited out of the country while US citizens were grounded.”
And in Ron Susskind’s book the “Price of Loyalty” (great read) Former Secretary of the Treasury Paul O’Neil infers that there was a great deal of push back from others in the Bush administration when he began to investigate the connection of Saudi money feeding into the financial support of some of the 9/11 bombers. O’Neil left the Bush administration soon after. Someone must have something on O’Neil because he sure has been silent after that book was released.
If Kristol, Ledeen, Cheney, Bolton, Feith, etc as well as Aipac and Israel have their way. Next stop Iran.
Bush Sought ‘Way’ To Invade Iraq? (cbs/60 minutes)
He also says that President Bush was disengaged, at least on domestic issues, and that disturbed him. And he says that wasn’t his experience when he worked as a top official under Presidents Nixon and Ford, or the way he ran things when he was chairman of Alcoa.
O’Neill readily agreed to tell his story to the book’s author Ron Suskind – and he adds that he’s taking no money for his part in the book.
Suskind says he interviewed hundreds of people for the book – including several cabinet members.
O’Neill is the only one who spoke on the record, but Suskind says that someone high up in the administration – Donald Rumsfeld – warned O’Neill not to do this book.
Was it a warning, or a threat?
“I don’t think so. I think it was the White House concerned,” says Suskind. “Understandably, because O’Neill has spent extraordinary amounts of time with the president. They said, ‘This could really be the one moment where things are revealed.’”
——————————————————————————–
Not only did O’Neill give Suskind his time, he gave him 19,000 internal documents.
“Everything’s there: Memoranda to the President, handwritten “thank you” notes, 100-page documents. Stuff that’s sensitive,” says Suskind, adding that in some cases, it included transcripts of private, high-level National Security Council meetings. “You don’t get higher than that.”
And what happened at President Bush’s very first National Security Council meeting is one of O’Neill’s most startling revelations.
“From the very beginning, there was a conviction, that Saddam Hussein was a bad person and that he needed to go,” says O’Neill, who adds that going after Saddam was topic “A” 10 days after the inauguration – eight months before Sept. 11.
“From the very first instance, it was about Iraq. It was about what we can do to change this regime,” says Suskind. “Day one, these things were laid and sealed.”
“FROM THE VERY FIRST INSTANCE, IT WAS ABOUT IRAQ” THE DEAL WAS “SEALED”
————————————————————————-
“He obtained one Pentagon document, dated March 5, 2001, and entitled “Foreign Suitors for Iraqi Oilfield contracts,” which includes a map of potential areas for exploration.
“It talks about contractors around the world from, you know, 30-40 countries. And which ones have what intentions,” says Suskind. “On oil in Iraq.”
I think we’re gonna find out what Walker thinks of it before long. It will probably be couched in legal verbage, but I think the message will be as follows:
1) You are intentionally misrepresenting this courts orders.
2) You are not responding to the facts of the case at all.
3) You have knowingly lied to this court.
4) You owe $,$$$,$$$.$$. Pay the clerk.
Boxturtle ( 5) Clear my courtroom, you loons! This is fscking ridiculous!)
Actually, I wonder whether it’s yesterday’s decision saying you have to have probable cause before designating a group a terrorist. From an ACLU press release:
DiFi and Kit Bond said pretty clearly yesterday that the Admin got ahead of themselves when saying the Pakistani group was tied to Shahzad’s attack. Which means they don’t get have probable cause to even convinced Kit Bond, much less an Article III Judge.
Thank you, EW.
Substantive “push-back”.
(in you last sentence, perhaps “convinced” should drop its “d”?)
DW
US troops executing prisoners in Afghanistan, journalist says
LINK.
Thanks, fatster. That is very useful background for us to our own long-running scandal.
And thanks, bmaz and all. The mystery of the Saudi Exception is an undercurrent of power always to be kept in mind. I have a feeling that the Pakistani Exception isn’t quite as stable, although Dick Cheney certainly did his best.
It is clear, and has been since before I was born, that nation-states use the term “terrorist” to delegitimize any political current they strenuously oppose. Hence domestic communists and anarchists were “terrorists,” African-Americans who advocated armed self-defense against racist attacks were “terrorists,” and union members who defended their picket lines were “terrorists,” the Viet Cong and North Vietnamese army were “terrorists,” the Irgun and the Stern Gang were “terrorists,” the Maoist armies fighting the KMT were “terrorists,” the Bolsheviks were “terrorists,” the Latin American left were full of “terrorists,” the African National Congress and Nelson Mandela were “terrorists,” etc.
Terrorism is a tactic. It has been used repeatedly through history. What is “shock and awe” and “blitzkrieg” but terrorism. However, the label is usually reserved by the powerful for labeling the outsiders who dare use violence as a means for achieving their ends. Of course, the U.S. and other powers have no problem doing this themselves.
Terrorism by small groups, especially violent actions that target civilians, usually is self-defeating for any group that uses it. It alienates your target community, and invites strong retribution from the state. Indeed, advocacy of terrorism is often the mark of group provocateurs. The “strategy of tension” by NATO and the Italian right in the 1970s and 1980s involved false-flag terrorist attacks that were then attributed to leftist groups. (See the excellent book on this by UK Guardian journalist Philip Willan, Puppetmasters: The Political Use of Terrorism in Italy.)
Good post, bmaz.
Agreed. The old Terrorist/Freedomfighter saw is actually pretty valid a lot of times. That said, the ruling in the update is a step in the right direction I think.
Yes, that a federal court would stand up for 4th and 5th amendment rights, especially in a case of purported terrorism, is a welcome development.
Re terrorist labels, Nelson Mandela, and other members of South Africa’s governing party, the African National Congress, remained on the U.S. “terrorist” watch list as late as 2008. This was finally lifted on July 1, 2008.
Speaking of facilitation of “terrorism”, whatever happened to this story, which demonstrated that U.S. oil interests were furthering the financial interests of the Taliban?
Hmm… wasn’t Khalilzad an associate of Brzezinski? Wasn’t ZK the U.S. Ambassador to Afghanistan from November 2003 until June 2005, and later U.S. Ambassador to Iraq (2005) and the United Nations (2007)? Oh yes, this is OT, because ZK is not a “terrorist”. (In the days when he was a liaison with the muhajadeen in Afghanistan fighting the Soviets, the Soviets called the jihadists “terrorists”, but they were freedom fighters to the U.S. policy elite and press. Of course, today, they have morphed back into “terrorists.”)
Jeff,
Your comments are right on! One man’s terrorist is another man’s freedom fighter. Just think of Afghanistan in the days of the Russian occupation. Then we supported the “freedom fighters” of Afghanistan. Now we call the same people “terrorists” because they’re fighting us, using the same tactics. And the Brits back in the ’40s thought the Irgun were terrorists, too.
Per the Wikipedia:
Bob in AZ
The US military has been terrorizing the third world, off and on, here and there, for the last one hundred and twelve years. This American war on the third world began in 1898, with the US slaughter of hundreds of thousands of Filipinos who resisted US efforts to establish a colony in the Philippines.
Obama is the terrorist, with some sixty million Afghanis and Iraqis being held at gunpoint by the US military.
Couldn’t agree more. Sadly, this *&^%’s been going on for a long, long time. US citizens wish to remain in denial and pretend that it’s “legitmate.” Many returned military have clearer views of how effed up this all is, but most citizens, sadly, are too dumbed down, deluded, distracted and so on from questioning any of it. Pretty disgusting.
I posted this in April:
Al-H Oregon was designated SDGT and banned by OFAC in 2004.
The actual charges against Al-H Oregon were dropped by the Feds over the protest of the Al-H attorneys, in 2005.
In between these two events, United Nations Security Council Committee 1267 listed Al-H in Sep. 2004 as “associated wit al-Qaida”, and Saudi-Arabia cracked down on the foundation. Then the Feds stated that proving their case against Al-H Oregon specifically was a waste of money, packed up and moved on.
To what extent is the UN listing of Al-H Oregon dependent on the OFAC designation?
To what extent is the UN listing of Al-H Oregon relevant under US law?
I think Obama is afraid of turning into a pillar of salt. Looking back can only lead to investigating 911, and that might lead to said salt lick. Well, Obama might become a pillar of pepper, but that’s not much better.
1. Thanks for raising the question of an actual investigation of 911 (rather than the cover up conspiracy theory we received in the 911 Commission Report);
2. At least nine of the 19 alleged highjackers…are alive and well, and…
“Whatever trail was left was left deliberately–for the F.B.I. to chase.” New Yorker 10/1/01 by Seymour Hersh
For further details re: those nine who are still alive:
http://www.welfarestate.com/911/#1
(Note: Based on the extensive reading I’ve done, my guess is, if any Al Qaeda were involved in this particular incident, they were patsies/set up by the “Big Guys.” I could write more, but I encourage others who are ready to follow the yellow brick road on this one…to start digging. This info really isn’t that hard to find.)
3. Speaking of how to define a “terrorist”: Josh Stieber, the former U.S. soldier who spoke out about the WikiLeaks video (he had been affiliated with the company involved in the murders we saw in that video before leaving the armed forces under conscientious objecter status)…is continuing to speak out. In a days-old interview by The Real News Network, Josh relays the kind of military song/cadence used as soldiers learned to march in formation while in boot camp:
I went down to the market
Where all the women shop
I pulled out my machete
And I began to chop
I went down to the park
Where all the children play
I pulled out my machine gun
And I began to spray
A better word would be “extant,” but I’m not sure how many people would recognize the term.
I’m not sure I understand. I do understand disputing the “terrorist organization” designation of Al Harrimain. I’m not sure I understand whether you are disputing the “foreign terrorist organization” designation of the TTP? Are you?
Assuming they can meet the probable cause standard, which I think is absolutely appropriate (at a minimum), no.
Does the fact that the Pakistanis are engaged in a non-international armed conflict with them (not their own designation, which is “at war”, but the ICRC’s which declared K-P and the FATA to be “regions of armed conflict” since May 2009), that the U.N. determined them responsible for Benazir Bhutto’s assassination, that they are an umbrella group containing as constituent parts at least two organizations, Jaish-e-Muhammad and Lashkar-e-Jhangvi which are already “foreign terrorist organizations” one because it has a 30 year history of attacks in India, the other because it is considered responsible for the murder of Daniel Pearl and others, for which there have been court convictions, coupled with the intelligence findings from the Times Square bombing make probable cause?
You will have to make your own determination. Quite frankly, the probable cause standard is, as I explained in the update to the post, for the SDGT designation and seizure of assets. If that were what we were discussing, it would depend on giving appropriate notice and opportunity to defend to the organization and also the government producing credible and verifiable evidence of the points you allege. As to the FTO designation by state, I don’t know what the standard is; it likely is not as high, and much more in the sole discretion of the executive branch if there is no nexus to a domestic entity, its property or assets. So in that regard, I am not sure I was correct in saying probable cause in response to your question initially and it may well be State Dept. could designate at their discretion. I am not sure.
We subject all foreign policy decisions (that’s what an FTO decision is) to judicial scrutiny under what part of the Constitution (what separation of powers)? Here’s the list, it has 45, all foreign, organizations on it, contrary to being “longer than you can measure”. Do you really think that the Shining Path and the Tamil Tigers fall under the jurisdiction of the courts prior to the State Department? The Tamil Tigers?
For the last time, I am not your personal backboard to play out your own little passion play on. If you are so expert in this area, why are you feigning to ask your relentless micro questions of me? Why do you not just tell us? And by the way, the list I reference in the post is of the SDGT Nationals (and is extremely long; which you would know if you looked), not FTO; so your carping about “45” being less than I described is inapposite. Also, I never said a thing about Tamil Tigers or Shining Path or about jurisdiction of courts over them, and you damn well know it; you are off on your own little pious jag and I am tired of dealing with your pretentious crap.
That was a completely inappropriate response. Dismissing me, because you think you’re entitled to it as a lawyer, or because I’ve offended the FDL/Emptywheel powers that be, is just plain silly. You don’t know things, it’s trolling to tell them to you. You construct bad inferences, it’s trolling to point it out. You really should base more of what you say on fact, not rely on “I’m a lawyer” to get you through. Because this time, you didn’t know what you were talking about.
Oh, don’t gin up a war and then get all hurt that your fire actually gets returned. It was a completely appropriate response to a person who is intentionally obtuse and cloying with their commentary. It is a repetitive and relentless pattern on your part. I said nothing about being a lawyer here; that was entirely in relation to another long past thread where you were making legal pronouncements you clearly knew diddly squat about. At least have the guts and intellectual integrity to keep your peevishness in the right timeline. When I don’t know things, I admit it; and clearly did so in the area I did not fully know when I responded to you in this thread. Then you have the gall to accuse me of constructing “bad inferences”, whatever the hell that means; yet it was you who either failed to read the post, or intentionally misrepresented my discussion of SDGT as that of FTO and acted like you had caught me in some falsehood. That falsehood was entirely yours; and yet here you are still whining. When I am wrong, I admit it; when I see patently malicious and dishonest argument I note it. You are duly noted.
I was being neither malicious nor dishonest. Here is what you said:
That statement is in error. There is a huge difference between the lists, and the State Department is dealing with foreign policy with it’s list, which isn’t a mile long. I don’t come here to “gin up” arguments, I come here to discuss. You react to any disagreement I have with you by a series of increasingly belligerent ad hominems. That’s just immature. If your arguments can’t stand the light of day, it’s neither dishonest nor malicious to point it out. You’re riding on your lawyer status, but not spending the time to think out what you’re saying.
I will not continue to argue with a patently dishonest and petty person; you can go elsewhere to peddle your cloying, holier than thou manufactured pout. If you knew that to start with; why not say it instead of dishonestly trying to take the whole day to massage it out into a serial affair. You are a neurotic pain in the ass, who is more interested in creating petty conflicts to get your tiny rocks off; and I will not bother to engage any of your crap again. Get lost.