Tag Archives: TN Edit

Tsarnaev as Enemy Combatant?

by Travis Normand

I heard a short audio clip on NPR yesterday concerning whether or not Dzhokhar Tsarnaev should be charged (or treated) as an “enemy combatant.”  You can listen to the audio of this discussion HERE (on NPR).

Notwithstanding the debate on whether or not Tsarnaev should be treated as an enemy combatant, White House press secretary Jay Carney says Tsarnaev will not be charged as an enemy combatant and instead will face trial in a federal court.

The reasoning Carney gives has nothing to do with whether or not Tsarnaev meets the criteria of being an enemy combatant but instead focuses on the fact that “when it comes to United States citizens, it is against the law to try them in military commissions.”  Carney’s answer is an interesting one considering that many are calling for Tsarnaev to be labeled as an enemy combatant for intelligence gathering purposes only and that he should still be tried in Federal Court (and not in a military commission).  In other words, if Tsarnaev can be designated as an enemy combatant, and still be tried in Federal Court, then Carney’s answer doesn’t make much sense.

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The war on terror is without geographically defined battlefields

by Travis Normand

An article appeared yesterday (Feb. 14, 2013) on the HuffingtonPost.com titled Drone Attacks Spur Legal Debate On Definition of ‘Battlefield.’

The debate concerning the geographic limits of the battlefield is not a new one.  In fact, the debate has been ongoing at least since the U.S. declared that it was engaged in a “War on Terror.”  After all, terrorist groups such as al-Qaeda are organizations and they typically have no geographic nation or state.  So, contrary to the traditional war paradigm we are used to, when the U.S. sent troops into Afghanistan to combat the al-Qaeda organization, the U.S. was not going to war with Afghanistan.

However, the author of the above referenced HuffingtonPost.com article suggests that a 2002 Drone attack in Yemen is what “blew apart notions of ‘war’ and ‘battlefield’ which has guided the application of the legal traditions, treaties and laws of armed conflict for centuries.”

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US v. El-Hanafi (Cont.)

by Travis Normand

If you haven’t see the post that I re-blogged from Prof. Robert Chesney’s site, please take a look at it first.  The follow quote comes from his post.

U.S. Attorney Bharara said, “The pleas of these two avowed supporters of al Qaeda is a chilling reminder of the threat of homegrown terrorists and the unwavering vigilance that must be exercised so they can be thwarted – as they were in this case. It is also a reminder of the commitment that we share with our law enforcement partners to identify, prosecute and punish those who would do harm to the United States and its citizens.”

Beginning in 2007, El-Hanafi and Hasanoff conspired with others to support and receive assignments from al-Qaeda. In November 2007, Hasanoff received approximately $50,000 from a co-conspirator (CC-1), with the understanding that at least a portion of the money would be used to support the terrorist organization. In February 2008, El-Hanafi traveled to Yemen, where he met with two members of al-Qaeda. While in Yemen, El-Hanafi swore an oath of allegiance to al-Qaeda, received instructions from al-Qaeda on operational security measures, and received assignments to perform for al-Qaeda. Also while in Yemen, El-Hanafi instructed the members of al-Qaeda on how to communicate covertly over the Internet in a manner that would avoid law enforcement detection.

After El-Hanafi returned from Yemen, Hasanoff also swore allegiance to al-Qaeda. About three months later, in May 2008, El-Hanafi met with CC-1 in Brooklyn to discuss CC-1 also joining al-Qaeda, and Hasanoff and El-Hanafi subsequently had additional discussions with CC-1 about joining al-Qaeda. During the same approximate time period, El-Hanafi purchased a subscription for a software program that enabled him to communicate securely with others over the internet.

El-Hanafi and Hasanoff also helped finance the terror group by regularly sending money to al-Qaeda through international wire transfers and through couriers. El-Hanafi and Hasanoff also were interested in fighting with al-Qaeda in Afghanistan, Iraq and other locations abroad, and they discussed traveling to engage in jihad, although they never succeeded in participating in armed conflict.

After a  cursory reading of the article and opinion, I would say that El-Hanafi was a full member of al-Qaeda.  Therefore, while he may never have actually participated in a “fire fight,” he is still a party to the armed conflict that the US is currently involved in with al-Qaeda.  One must remember that the LOAC deals with status based targeting and not conduct based targeting.

With this view in mind, El-Hanafi would be a lawful military target no matter where he was found. While it is definitely possible for him to be arrested and prosecuted via the criminal justice system (as was done here); the real debate hovers around the issue of whether or not the US Military could have used deadly force against him as a measure of first resort.

Fact, Fiction, or merely Opinion…?

by Travis Normand

In his article on April 20th 2012, Bruce Ackerman stated the following quote as fact:

The risk of attacks from Yemen may be real. But the 2001 resolution doesn’t provide the president with authority to respond to these threats without seeking further congressional consent.

Mr. Ackerman may be 100% correct and there are undoubtedly many experts out there that share his point of view. However, one must not be confused by his factual assertion that the “2001 resolution doesn’t provide the president with the authority to respond to these threats . . . .”

If I am not mistaken, whether or not the President needs further congressional consent is exactly what makes this area of law so difficult. It is this point that many debate on a daily basis.

Again, I am not stating my own opinion on whether or not I believe the 2001 resolution gives such authority. I am merely pointing out that Mr. Ackerman’s statement could easily be read as a factual assertion.

If there is any question as to whether or not this is a settled discussion, one must only look to the fact that this was posted in the Opinions section of the WashingtonPost.com.

To read the rest of his column, go here!