In an indictment recently unsealed, Justice Department officials accused Colleen R. LaRose of using the Internet to link up with overseas militants and plotting to commit murder. The case of LaRose, a resident of suburban Philadelphia, presents what The Christian Science Monitor reports as, "a rare example of a white American woman becoming involved in global jihad over the Internet."

The New York Times reports: 

Ms. LaRose, 46, was arrested in Philadelphia in October, but her case was kept under seal. Although the indictment does not identify the target, a law enforcement official said her case was linked to the arrests Tuesday of seven Muslims in Ireland in connection with a scheme to kill the cartoonist, Lars Vilks. A group linked to Al Qaeda had put a $100,000 bounty on his head for the cartoon, which the group perceived as an insult to Islam.

LaRose, who also went by the aliases "Fatima La Rose" and "Jihad Jane," had prior run-ins with the law in Texas, where she lived before moving to Pennsylvania in 2004. LaRose's prior arrests, both of which took place in 1997 according to CNN, seemingly bore no relation to any terrorist activity.

Neighbors thought LaRose peculiar, but are reacting with surprise to her alleged involvement in a terrorist assasination plot. LaRose "was mostly notorious for getting drunk and getting into fights," according to a neighbor, Eric Newell.

[Image via Wikimedia Commons.]

Most of the opposition to U.S. detention policy since 9/11 has focused on the detention camp at Guantánamo Bay. But for nearly as long, the United States has been operating a prison in Afghanistan that has been, in many ways, Guantánamo's uglier twin. Stories of abuse and mistreatment at the Bagram facility have been all too common. At least two detainees were killed by guards at Bagram, the consequence of repeated beatings and shackling in stress positions.

Unlike prisoners at Guantánamo, however, whose habeas rights were restored by the Supreme Court in 2008, Bagram prisoners have never had a meaningful and adequate process to challenge their detention. Yet many Bagram prisoners have been held for years, without charge, without access to courts, without access to lawyers, and without even being told why they are being held. And according to official government investigations, reports by nongovernmental organizations, and interviews with former Bagram detainees and their families, many of the detainees at Bagram have never engaged in or been a part of groups engaged in hostilities against the United States. Many were instead originally picked up in the course of night raids, neighborhood sweeps, and cordon-and-search operations. Others were picked up by military forces acting on the basis of flimsy intelligence like anonymous tips from local rivals or business competitors. The risk that people at Bagram are erroneously detained is very high. It is therefore crucial that the people detained there have prompt access to a court or, at the very least, a fair, independent and impartial tribunal that can order their release. Just as with people held at Guantánamo, those imprisoned at Bagram must not be falsely imprisoned for years without charge.

Last week the ACLU filed habeas petitions on behalf of four people detained at Bagram. One petition is on behalf of two brothers: a 24-year-old Afghan who, until his capture by U.S. forces nearly 20 months ago, served as a translator for the U.S. military for four years, and a 25-year-old customer service representative for an Afghan Internet service provider, who has been imprisoned for nearly two years. The second petition is on behalf of a 61-year-old Afghan government employee, and his 27-year-old nephew, who have been imprisoned at Bagram for more than one year after U.S. forces seized them from their homes. Even though they have already been locked up at Bagram for well over a year (and for some, almost two), the government has never informed our clients of the reasons why they are being detained. Neither do our clients' families have any idea why their relatives are in prison. In fact, it was months after our clients' arrest before their families learned what had become of them.

The ACLU joins other dedicated lawyers, coordinated by the International Justice Network, who have also filed habeas petitions on behalf of other Bagram detainees. Last year, the D.C. District Court confirmed that at least some Bagram detainees have the right to petition for habeas corpus. That decision is currently on appeal to the U.S. Court of Appeals for the D.C. Circuit.

The ACLU has filed this habeas petition because it believes that the government must release our clients -- and others like them -- or else prove why they can be held in military detention. If the government does not have the authority to detain them militarily, they must be released or charged criminally under Afghan or U.S. law. Because the military's internal process for reviewing the detention of people held at Bagram is inadequate under both the Constitution and applicable international law, we are asking a court to vindicate our clients' habeas corpus rights by stepping in to review their detention.

Up until recently, the review process at Bagram was little more than a rubber stamp: detainees were not told why they were held, let alone given an opportunity to challenge their detention. The current Detainee Review Board ("DRB") policy, instituted by the Obama administration toward the end of last year, is an improvement over the prior process that existed at Bagram, but remains inadequate and unlawful. Among other defects, the DRBs are not independent or impartial -- they are composed of military officers who are not insulated in any way from the command hierarchy or other improper influences. Instead of looking only at the evidence, they are liable to be looking over their shoulders, worried that ordering the release of detainees will land them in hot water with their superiors or hinder their career progress. The DRBs also fail to afford the detainee the right to access counsel. There is therefore nobody who can stand between the detainee and the military, in order to ensure that they are treated fairly. The "personal representatives" that are assigned to detainees under the DRB process are nonlawyer military personnel responsible to the chain of command. In fact, personal representatives are appointed and removed by the same person who chooses the members of the DRB panel itself. Unlike lawyers, the "personal representatives" owe no duty of confidentiality to their "clients," and are not bound to advocate zealously on their behalf. To make matters worse, detainees are not given access to all of the evidence against them and the DRBs are not obligated to provide the detainee with evidence in the government's possession that tends to show the detainee's innocence. Furthermore, nothing in the DRB policy prevents the military from relying on testimony procured using torture or other cruel, inhumane, and degrading forms of coercion.

This isn't good enough. The current system of detention at Bagram is contrary to the Constitution and international law, and offends bedrock American principles of freedom and due process. The Obama administration should do the right thing not only at Guantánamo -- which should long since have been a distant memory -- but also at Bagram, where the indefinite detention of people without habeas rights or charge offends American values and undermines the United States' moral standing in Afghanistan and beyond.

[Image via takomabibelot.]

The Washington Post today reported: "Obama advisers are set to recommend military tribunals for alleged 9/11 plotters." The report indicates that the Obama administration now leans towards trying self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed (KSM) and his co-conspirators in military tribunals. Reactions were swift and are offered below without comment.

"Obama said that the choice between our security and our ideals is a false choice. He was right," writes Adam Serwer at The American Prospect. "The real choice was always between our ideals and our politics, and if the above story is true, then Obama will have made the obvious, if profoundly disappointing, choice."

At Harper's, Scott Horton introduced "Barack Obama's new attorney general: Rahm Emanuel," apparently blaming Emanuel for the administration's shift in policy. Marcy Wheeler seemed to agree.

"Three is the number of people who have been convicted in the military commissions system. Two of the men convicted in the military commission system are free today," the ACLU offerred at their blog. "Compare that to the more than 300 who have been convicted on terrorism-related charges in our federal criminal courts and are incarcerated in federal prisons."

Sen. Russ Feingold notes this track record of military commissions and warns that "[t]he best way to bring these terrorists to justice swiftly is through our civilian courts."

Spencer Ackerman is tracking commentary from former military officers opposing military tribunals for KSM.

Steve Benen wonders if fault for any potential policy shift ultimately lies with Congress, who "spent the last year cowering whenever national security came up, and threatening to side with Republicans on cutting off funding for trials and Gitmo closure."

Folks at The Atlantic's politics blog conjectured that the Post's "story is merely a test balloon."

Less charitable commentary was provided by Jeralyn Merritt at TalkLeft and Glenn Greenwald at Salon, who both voiced grave disappointment with the admistration's reported shift in position.

A final notable quote is from Attorney General Eric Holder, a former ACS board member, in an exchange with a reporter from The New Yorker earlier this year. In an extensive report on his decision to try KSM in an Article III Court, Holder eagerly defended what was then the administration's position:

"I don't apologize for what I've done," [Holder told The New Yorker]. "History will show that the decisions we've made are the right ones." Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as "the defining event of my time as Attorney General." But, he added, "between now and then I suspect we're in for some interesting times."

If the commentary above is any indication, interesting times may well be upon us.

[Image via The White House.]

In its 2008 decision in District of Columbia v. Heller, a closely divided Supreme Court, applying what the majority characterized as "the original understanding of the Second Amendment," invalidated D.C.'s prohibition on the possession of handguns. Relying on eighteenth-century sources, the Court defined the Second Amendment right to "keep and bear arms" as "the individual right to possess and carry weapons in case of confrontation," and held that a prohibition on handguns was unconstitutional. The Court cautioned, however, that the Second Amendment is only a limitation on the powers of Congress, and reserved decision on the question whether it also applied to state and local governments by virtue of the Fourteenth Amendment. The Court noted that its nineteenth-century decisions had refused to apply the Second Amendment to state and local laws, but added that these cases "did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."

The Court will now confront the applicability of the Second Amendment to state and local laws in McDonald v. City of Chicago. At issue is the constitutionality of Chicago's handgun ban. Chicago and its amici rely on the approach to incorporation of the first eight amendments within the Fourteenth that the Court has taken for nearly a century - asking whether a particular right is "implicit in the concept of ordered liberty." Under this approach, many of the rights in the first eight amendments have been incorporated within the Fourteenth Amendment's Due Process Clause - but not all.

Chicago and its amici argue that gun control is a classic example of the argument for federalism. Although the benefits of widespread firearm-ownership in terms of sport, self-defense, and other legitimate pursuits are experienced widely, its costs are concentrated in big cities, which face enormous risks of firearms violence. Urban street gangs, for example, frequently establish territorial drug distribution monopolies enforced by the violence. Firearms are essential to gangs in this endeavor - they enable gangs to police their turf and defend themselves against rivals. Indeed, the crime wave that hit major cities in the late 1980s and early 1990s was largely a function of firearms violence produced as gangs competed to control emerging crack cocaine markets. Since then, a series of studies has demonstrated that police crackdowns targeting those who carry firearms at "hot spots" of urban crime are effective at combating violent crime; New York City has been a particularly conspicuous success. Handgun bans in particular inhibit urban gun markets with surprising success. Recognizing a right to keep and bear arms in the central cities, however, could grant gangs effective immunity from these tactics, imperiling efforts to fight urban crime.

The petitioners in McDonald, supported by the National Rifle Association and other amici, spend little time considering the implications of a right to keep and bear arms for the nation's cities. Instead, they focus on evidence that the authors of the Fourteenth Amendment intended to protect the Bill of Rights against the states under the Fourteenth Amendment's Privileges or Immunities Clause, which protects the "privileges or immunities" of citizens. They attack the Supreme Court's 1872 Slaughter-House decision as incorrectly limiting the scope of the Fourteenth Amendment. Many conservatives cheer this proposed reinvigoration of the Privileges or Immunities Clause, hoping that it will produce constitutional protection for nineteenth-century conceptions of freedom of contract and limited government. Many liberals cheer this same proposal, hoping that it will supply textual grounding for unenumerated constitutional rights they favor, such as the right to abortion.

The history of the Fourteenth Amendment is notoriously untidy. Although there is good evidence that a few of its authors intended its Privileges or Immunities Clause to protect the Bill of Rights, most legislators ignored the issue. There is little evidence that the ratifying states understood the Fourteenth Amendment to incorporate the Bill of Rights; the ratification debates focused on discrimination against the newly freed slaves. Leading legal scholars of the era did not understand the Fourteenth Amendment to incorporate the Bill of Rights; nor did the Supreme Court in its Reconstruction-era decisions.

In embracing originalist constitutional interpretation in Heller, the Court explained that what is critical is not the intent of the drafters, but rather "the public understanding of a legal text." Whether the public developed an incorporationist understanding of the meaning of Privileges or Immunities Clause is, however, open to great doubt. Just as the Court in Brown v. Board of Education termed the evidence of the original meaning of the Fourteenth Amendment "inconclusive" when it came segregation, the conflicting historical evidence on incorporation, coupled with nearly a century's worth of precedent taking a nonoriginalist approach to incorporation, may well lead the Court to reject the historical evidence as a basis for decision.

If the Court deems history inconclusive, it will have to decide whether to deem the Second Amendment an aspect of "ordered liberty." Most observers seem to think that the same five justices who embraced a strong conception of firearms rights in Heller will apply those same rights to the states in McDonald. Still, in McDonald, unlike Heller, federalism will come into play. If the Court is convinced that gun control is one of those issues best resolved at the local level, McDonald could produce an outcome strikingly different from Heller.

[Image via Al_HikesAZ.]

Across the country, public defender offices are underfunded and understaffed, drowning in overwhelming caseloads. Public defenders are dedicated lawyers trying their best to represent their clients in often-impossible circumstances. Even worse, in many areas around the country, there are no public defender systems at all, resulting in a haphazard system of appointing lawyers who may be unprepared, without sufficient resources, and have no relevant experience.

It has been nearly 50 years since the U.S. Supreme Court's decision in Gideon v. Wainwright decreeing that there is a constitutional right to a lawyer in criminal cases and that the government must provide one if the defendant cannot afford one. The Court recognized that well-trained and adequately resourced defense lawyers are the best way to determine whether the right person has been arrested for a crime. Yet states and localities are not providing the funds to pay for these lawyers, meaning that poor people are languishing in jail at the taxpayers' expense with no real opportunity to mount a defense.

While funding for indigent defense has increased since Gideon was decided, funding is woefully inadequate and the current economic crisis confronting many state and local governments is exacerbating the situation tremendously.

The U.S. Department of Justice has just hosted a National Symposium on Indigent Defense, the first of its kind in 10 years. One of the goals of the Symposium was to look at America's indigent defense systems in each state from top to bottom, and to examine both successful and failed attempts at indigent defense reform. Attendees committed to working together to craft new ideas for successful reforms, while forging alliances and building partnerships to achieve them. We applaud the Department of Justice's leadership in hosting this Symposium. It is a much-needed effort to spotlight the failings of the nation's criminal justice system and the crises persisting in state public defense programs.

However, the Symposium is, in our view, only the beginning of the work that must be done to fulfill the promise of Gideon.

As Thomas Perez, the Assistant Attorney General for the Civil Rights Division, said in a speech to the Symposium, the indigent defense crisis is the civil rights issue of our time. While many private organizations and individuals are working hard to address the crisis, they simply do not have the resources and cannot do it alone. With limited state and county resources and capacity, the federal government must step in and become a full partner in these efforts, providing critically needed resources and leadership.

We have long known how to fix these problems. The report of the Constitution Project's National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, is the most comprehensive examination of the indigent defense crisis in over 30 years. The Committee, whose members represent every relevant part of the criminal justice system, including prosecutors, judges, victim advocates, defenders, bar leaders, and scholars, unanimously concluded that this country's indigent defense system is in crisis, that the government has for too long ignored its obligation to provide lawyers in these cases, and that it cannot be ignored anymore. The report outlines 22 urgently-needed recommendations for reform.

One of the most important recommendations is that indigent defense should be provided through an independent, non-partisan authority that appoints qualified, experienced lawyers who have adequate resources. Of equal significance is the recommendation that the federal government assist the states in ensuring that the Sixth Amendment is protected and that poor people have the kind of lawyers to which they are constitutionally entitled. The federal government provides badly-needed funding for law enforcement and prosecutors, but to continue doing so without also providing funding for public defense services simply exacerbates the already untenable situation.

Another recommendation is that the federal government should create a federal office of public defense services to distribute funds, collect data, promulgate standards, and develop and deliver training similar to the federally-supported training for state and local prosecutors. Additionally, the federal government should require all states to abide by national standards for public defense. Adoption of the American Bar Association's Ten Principles would provide constitutionally adequate legal representation for criminal defendants unable to afford an attorney.

One innovative idea that will improve the quality of representation for indigent defendants is to create a national fellowship program to cultivate and train the next generation of indigent defense lawyers. This would dramatically increase the number and caliber of lawyers working to secure justice for clients and communities. Equal Justice Works, working in partnership with the Southern Public Defender Training Center (SPDTC), is proposing to do just that. We urge the Department of Justice to support this effort with adequate resources for three-year public defense fellowships for committed lawyers who can work to change the culture of indigent defense systems nationwide.

We applaud the Department of Justice for hosting this National Symposium on Indigent Defense, for recognizing the crisis in indigent defense, and for taking an important first step in the right direction. We call on the Department to take the next steps of educating all Americans about the crisis and the need to address it, and -- most important of all -- to provide the resources that are so urgently needed to ensure that Gideon's promise is finally fulfilled.

[Image via Wade Wofford.]

The survivors of two Guantanamo detainees who died in U.S. military custody had their hopes of assigning civil liability dashed yesterday. The families of Yasser Al-Zahrani and Salah Ali Abdullah Ahmed Al-Salami saw their suit dismissed by a district court judge who relied on the Military Commissions Act of 2006 in her order.

The deaths, which were deemed "suicides" by the military, drew closer scrutiny after a Seton Hall study was released suggesting several reasons for suspicion. After attorney and ACS participant Scott Horton discussed the deaths on MSNBC, four soldiers who had been stationed at Guantanamo came forward and shed further light on what happened that night.

According to the Associated Press, the families of the deceased sought damages "under the Alien Tort Claims Act, alleging arbitrary detention, torture, cruel and inhuman treatment, violations of the Geneva Conventions, and cruel and unusual punishment." The judge dismissed these claims, deferring to the military's position that the detainees were enemy combatants rather than prisoners of war.

This determination "runs contrary to the evidence," Horton wrote today. 

Both men were turned over to U.S. forces for bounty payments, and a thorough investigation of their cases by American military intelligence concluded that there was no meaningful evidence to link either man to either Al Qaeda or the Taliban. Al-Zahrani had been placed on a list to be released back to Saudi Arabia, immediately behind Mani Al-Utaybi, who also died under still unexplained circumstances on June 9, 2006, at approximately the same time as Al-Zahrani and Al-Salami, according to pathologists. 

[Image via smit5334.]

In an article for The American Prospect, Attorney General Eric Holder Jr., asserting his Department's independence from political elements of the administration, tells Dayo Olopade, "I'm not the secretary of justice. I'm the attorney general of the United States." The article is one of three recent stories exploring ramifications of some decisions made during Holder's tenure as Attorney General.

The New York Times reported yesterday that Holder, a former member of the ACS Board of Directors, "has switched from resisting what he had considered encroachment by White House officials to seeking their guidance." According to The Times a catalyst was the Justice Department's decision to prosecute Khalid Sheikh Mohammed, who has said he plotted the Sept. 11 terrorist strikes, and four co-conspirators, in federal court instead of a military tribunal. Indeed, Holder told The Times that political attacks on that decision were "starting to constrain my ability to function as attorney general."

In an article for The New Yorker, Jane Mayer explores tensions between some in the White House and the Justice Department, especially over the decision on Mohammed. Explaining some of his reasoning, Holder said that the administration should not rely on the controversial interrogation techniques used by the Bush administration to bring justice to the alleged Sept. 11 conspirators. "We are not going to use the products of interrogation techniques that this President has banned," Holder said.

Olopade's article for The Prospect focuses more on Holder's work to build moral at the sprawling Justice Department after years of scandal prompted, in part, by a drastic reduction in attorneys in the Civil Rights Division and politicization of hiring throughout the Department.

Olopade maintains:

Indeed, his tenure promises to resolve many long-running debates on civil-rights provisions, environmental regulations, and criminal justice and drug policy, as well as the delicate balance between American security and its basic freedoms and moral principles. Taking some cues from the broad themes of the Obama campaign - transparency, people power, accountability, and equity for all Americans - Holder has directed the department to set up interagency task forces on interrogation and detention practices, shepherded new protections against hate crimes through Congress, spoken out on ‘the crisis in indigent defense,' decriminalized medical marijuana use, demanded new protocols for hiring U.S. attorneys, and declared that the agency's Civil Rights Division is once again ‘open for business.'

Caroline Fredrickson, executive director of ACS, told The Prospect, "They're reviewing everything de novo. There is clearly an effort to be much more inclusive in terms of hearing from different parts of the advocacy community and trying to understand the implications of policy for civil rights, for human rights, and for international obligations."

Spain Accepts Five Detainees: Spain announces the largest commitment among European countries.

Intelligence, Judiciary Committee Chairs Endorse Federal Trials: Senators Feinstein and Leahy pen a letter defending domestic terror trials.

Another Senator Supports Closing Gauntanamo with Caveats: Senator Graham demands military tribunals and indefinite detention.

International Law Expert Assesses Politics: Professor Deborah Pearlstein parses the political considerations seemingly driving Guantanamo decisions.

D.C. Circuit Hears Argument Against Releasing Detainee: The Justice Department appealed the district court's order to release Mohammed al-Adahi.

SCOTUS Considers Dismissing Kiyemba: With countries willing to accept all seven Uighurs at Guantanamo, the Supreme Court ordered briefing on whether to dismiss their case.

[Image via christophe dune.]

Dawn Johnsen's nomination to lead the Justice Department's Office of Legal Counsel (OLC) was delayed again by the Senate Judiciary Committee this morning. Johnsen, a former member of the ACS Board of Directors, was first announced as President Obama's OLC nomination in January 2009. After prior support of the Senate Judiciary Committee, Johnsen's nomination spent the better part of 2009 -- a year of unprecedented obstruction -- languishing on the Senate floor without a vote.

The New York Times and The Wall Street Journal published editorials today staking out opposing views on Johnsen's nomination. This battle of the editorial boards follows last week's Los Angeles Times editorial stating that "the obstruction of this nomination is and always has been unjustified."

The Journal's editorial criticized Johnsen for her views on the OLC's role under the Bush administration, when that office produced the infamous "torture memos," noting: 

During the Bush years she [Johnsen] has said that OLC gave "horrific legal advice" and "advice premised on an extreme and unfounded view of presidential power to justify desired counter terrorism policies." On issues such as the use of domestic electronic surveillance or interrogation policies, she has called the Bush Administration's practices controversial and "sometimes flatly illegal."

Considering these same facts, The Times editorial called Johnsen "a highly qualified choice" whose nomination has drawn "baseless objections" causing "unreasonable delay."

At today's executive business meeting, the Senate Judiciary Committee reported the following nominations to the full Senate: Chris Schroeder, co-author of ACS's Keeping Faith with the Constitution, to lead the Office of Legal Policy (16-3); Mary Smith to head the Justice Department's Tax Division (12-7); Edward Milton Chen, to be United States District Judge for the Northern District of California (12-7); and Louis B. Butler, Jr., to be United States District Judge for the Western District of Wisconsin (12-7).

Attorney General Eric Holder joined the Obama administration's counterattack on the handling of Umar Farouk Abdulmutallab, who allegedly attempted to bomb a flight landing in Detroit on Christmas Day.

The volley began when critics accused the administration of ignoring national security in favor prosecuting Abdulmutallab in a domestic court. They argued that this was evidenced by detaining Abdulmutallab as a criminal, not as an "enemy combatant." The Attorney General, a former member of the ACS Board of Directors, joined the fray after threats were announced to block domestic trials of terror suspects.

His sharply worded letter to Senate Minority Leader Mitch McConnell reads, in part:

Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear. In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer. Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system. 

Holder's point about the efficacy of the criminal justice system builds on recent reports that Abdulmutallab is in fact cooperating with authorities and providing actionable intelligence. The Attorney General seemed keen to demonstrate the administration's dedication both to the rule of law and national security.

"President Obama has made clear repeatedly, we are at war against a dangerous, intelligent, and adaptable enemy. Our goal in this war, as in all others, is to win," Holder wrote. "Victory means defeating the enemy without damaging the fundamental principles on which our nation was founded."

[H/T: Adam Serwer.]