JURIST - Paper Chase: Tuesday, March 6, 2012

[JURIST] US Attorney General Eric Holder [official website], in a speech [transcript] Monday, framed the Obama administration's policy toward the targeted killing [JURIST news archive] of US citizens abroad who are members of al Qaeda [GlobalSecurity backgrounder]. Holder's comments also addressed the success of the federal courts and revised military commissions in prosecuting terrorism offenders, as well as the factors used to consider the choice of forum for individual defendants. Holder stressed that it was important to use both venues to bring justice in terrorism cases. His comments then turned to those situations requiring extra-judicial means of threat mitigation, noting that the Congressional authority to respond to threats posed by al Qaeda, the Taliban and associated forces with "appropriate and lethal force" is not limited in geographic scope and extends beyond the battlefield in Afghanistan, and can include the specific targeting of leaders. Holder then pointed to historic and current Supreme Court cases that show that US citizenship alone "does not make individuals immune from being targeted." Holder said:

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause—including in a case involving a US citizen captured in the conflict against al Qaeda—the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat.

The attorney general indicated that lethal force would only be used in a foreign country when: there is an imminent threat of violent attack on the US, capture of the individual is not feasible and any actions would be consistent with the laws of war. Holder argued that while the US Constitution [text] grants the right of due process, it does not grant the right to judicial process; saying, "'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security." As result, Holder argued that the president is not required to seek court approval before taking action against a US citizen accused of being a senior operational leader of al Qaeda. Holder indicated that robust oversight of the operations and their legal frameworks is provided be appropriate members of Congress. The American Civil Liberties Union (ACLU) [advocacy website] issued a statement [press release] criticizing Holder's remarks. Hina Shamsi, director of the ACLU's National Security Project said, "Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact." The ACLU also argued [statement] that while the attorney general claimed that these citizens have a right to due process, his speech also claimed that only the Executive Branch "should determine whether the due process requirement is satisfied." There has been substantial debate in the legal community regarding whether the targeted killings of US citizens engaged against the United States with al Qaeda and associated groups is legal or a violation [JURIST op-eds] of the laws of war.

This speech marks another step in the legal response [JURIST news archive] to the war on terrorism in the wake of 9/11 [JURIST backgrounder]. Although not explicitly named, the speech is partially a response to killing of US citizen and senior al Qaeda leader Anwar al-Awlaki [BBC profile; JURIST news archive] by US forces. An Obama administration legal memorandum from last year found that the killing of al-Awlaki would only be legal if it were not feasible to take him alive. Al Awlaki was killed by a CIA drone strike [JURIST report] in Yemen in September. The strike marked the US government's most successful attack against al Qaeda since the raid leading to the death of Osama bin Laden [JURIST report] in Pakistan last May. The US-born radical Muslim cleric reportedly used his English and Internet skills to recruit individuals for attacks in the US. The ACLU criticized the targeted killing as a violation of both US and international law [press release]. The US has increased drone strikes in Yemen to try and reduce al Qaeda's power in the region and minimize the chaos spilling over the border into Saudi Arabia. The US targeted Awlaki in a strike last May but was unsuccessful. In August 2010, prior to al Awlaki's death, the ACLU and the Center for Constitutional Rights (CCR) [advocacy website] filed a lawsuit [JURIST report] challenging the US government's authority to conduct "targeted killings" against suspect terrorists. In addition to requesting the criteria used to place al Awlaki on a so-called "kill list," the suit also asked the court to set standards describing when the government could constitutionally use lethal force against a U.S. citizen away from an active battlefield. The Obama administration invoked state secrets [JURIST report] while seeking to block the lawsuit. The suit was dismissed [JURIST report] on the grounds that it raised "political questions."

[JURIST] The Georgia State Senate [official website] passed a bill [SB 485, materials] Monday that would ban illegal immigrants from state colleges and universities. The bill was approved with a 34-19 vote [roll call vote]. According to the bill's sponsor, Senator Larry Loudermilk (R), it is not about education [AP report], but on preventing taxpayer dollars from benefiting those persons in the country illegally. Illegal immigrants' access to private institutions is not affected, and attendance in some state colleges and universities is still permitted by paying out of state tuition rates. South Carolina is currently the only state that prohibits state colleges and universities from admitting illegal immigrants. The bill also aims to clarify requirements for individuals seeking public benefits, such as food stamps and professional licenses. The bill now heads to the House for passage. A Georgia House committee had previously discussed a bill banning illegal immigrant's access to higher education, but members did not vote on that bill.

Earlier this month, the US Court of Appeals for the Eleventh Circuit [official website] heard arguments in a challenge to illegal immigration legislation recently passed in Alabama and Georgia, but chose to defer its ruling [JURIST report] until after the US Supreme Court [official website] rules on a pending challenge to the controversial Arizona immigration law [JURIST news archive]. The Arizona immigration law [SB 1070, PDF] has had a polarizing effect since its passage. Similar legislation has passed in Utah, South Carolina and Indiana [JURIST reports]. The Supreme Court granted certiorari in December to determine whether Arizona's controversial immigration law is preempted by federal law [JURIST report].

[JURIST] A judge for the US District Court for the District of Maryland [official website] ruled [opinion] Friday that a portion of Maryland's handgun permit law is unconstitutional because it violates the Second Amendment [text]. Judge Benson Everett Legg ruled that the law limited individuals' rights to obtaining a permit by requiring a "good and substantial reason," and that requirement was not reasonably adapted to a substantial government interest of public safety or crime prevention. Legg wrote, "A citizen may not be required to offer a good and substantial reason why he should be permitted to exercise his rights. The right's existence is all the reason he needs." The constitutionality of other portions of the permit law were not addressed by the court. The plaintiff's attorney in the case recognized that most states have licensing systems and all that is sought by the plaintiff is one that is straightforward and objective [AP report]. The removal of the ambiguous language "good and substantial reason" should accomplish this goal. The defendant, the Maryland Attorney General's Office [official website], is still reviewing the opinion.

In July 2010 Chicago citizens filed suit [JURIST report] against the city's gun control ordinance claiming it was unconstitutional. The law was approved [JURIST report] just four days after the US Supreme Court [official website] ruled in McDonald v. Chicago [Cornell LII backgrounder; JURIST report] that the Second Amendment applies to states and municipalities as well as the federal government. The court's ruling in McDonald cited the holding in District of Columbia v. Heller [Cornell LII backgrounder; JURIST report] where the court held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. The District of Columbia enacted a new series of firearm regulations following the court's ruling in Heller. The regulations were upheld [JURIST report] by a federal judge who cited Heller, holding that the Second Amendment does not prohibit regulation of firearms where that regulation will "effectuate the goal of promoting public safety."

[JURIST] A jury in the US District Court for the Southern District of Texas [official website] on Tuesday convicted financier Allen Stanford [BBC profile; JURIST news archive] on charges of orchestrating a $7 billion Ponzi scheme affecting investors in both the US and Latin America. Stanford was convicted on 13 of 14 charges, including conspiracy to commit wire or mail fraud, conspiracy to obstruct a Securities and Exchange Commission (SEC) [official website] investigation, obstruction of an SEC investigation and conspiracy to commit money laundering in addition to five counts of wire fraud and five counts of mail fraud. He was acquitted on one charge of wire fraud. Stanford faces more than 20 years in prison if the judge orders that sentences be served consecutively.

Stanford's trial began in January after a judge ruled in December that he was mentally competent [JURIST report] to stand trial. His lawyers were unsuccessful in arguing that he suffered from retrograde amnesia and diminished mental capacity as a result of head injuries sustained during a 2009 assault while in prison. Last year Stanford filed a lawsuit [JURIST report] accusing federal agents of violating his constitutional rights. The suit named 12 defendants, including members of the FBI, the SEC and the Department of Justice. Stanford alleged that the defendants used "abusive law-enforcement methods" to pursue a frivolous civil suit [JURIST report] against him in order to gather evidence for his criminal prosecution. In June 2009 Stanford pleaded not guilty [JURIST report] to 21 charges of fraud, conspiracy and obstruction.

[JURIST] UN Special Rapporteur Margaret Sekaggya [official website] on Monday outlined the risks and challenges faced by human rights journalists and media workers [press release], and called for additional protection of those workers. The report [text] indicated that, "journalists and media workers active on human rights issues were subject to killings, attacks, disappearance, abduction, torture and ill-treatment." The report called on state and non-state actors to recognize the objective role played by these observers, and to offer them proper protection from unwarranted criminal prosecution. In a statement to the UN Human Rights Council, Sekaggya said:

Journalists, environmental, student and youth rights defenders and those working on land issues are in significant need of protection. ... Most of these risks directly affect their physical integrity and that of their family members, but also involve the abusive use of legal frameworks against them and the criminalization of their work.

The report also recognized the need to protect those active on human rights issues who are not formally recognized as journalists and media workers, but "should include other relevant actors, such as community media workers, bloggers and those monitoring demonstrations."

Protection of human rights remains a central concern for the UN, with rights activists across the globe being subject to violence and arrest. In October, Sekaggya released a report [JURIST report] indicating that human rights defenders were still being harassed, attacked and killed more than a decade after the international declaration adopted for their protection. In August Chinese authorities in Beijing began the trial [JURIST report] of Wang Lihong, one of the dozens of human rights activists the government detained earlier this year as part of a crackdown on dissidents in the country. Nobel Peace Prize winner and human rights activist Liu Xiaobo [BBC profile; JURIST news archive] remains imprisoned in China despite international calls for his release. In July a coalition of human rights organizations issued a joint statement urging the Russian government to investigate the murder [JURIST report] of rights activist Natalia Estemirova [BBC obituary; JURIST news archive]. Estemirova, who was kidnapped in Grozny in July 2009 and shot to death, reported regularly on human rights abuses committed by the Chechen government, including extrajudicial killings, torture and enforced disappearances. In June Zimbabwean human rights activist Farai Maguwu was arrested for allegedly supplying false information about Zimbabwe's controversial diamond mining practices to the international diamond control body the Kimberley Process [advocacy website].