TCS Daily

When Is a Terrorist Not a Terrorist?

By Michael Rosen - December 5, 2006 12:00 AM

You know you're in trouble when you can't even call the terrorists "terrorists."

This effectively was the ruling handed down last week by Judge Audrey Collins of the federal district court in Los Angeles.

It marks yet another low point not only in the Bush administration's record in defending its War on Terror legal doctrines in the courtroom (2006 has been particularly unkind in this respect) but also in the courts' increasingly nonsensical attempts to assert themselves in matters of national security.

This latest episode began in 1917 when, in the Trading With the Enemy Act, Congress granted the president broad authority to "investigate, regulate . . . prevent or prohibit . . . transactions" in times of war or declared emergencies.

And then in 1977 Congress extended that authority in the International Emergency Economic Powers Act (IEEPA), to include the power to "investigate,... regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of" property in which a foreign country or person has an interest, but only in the presence of an "unusual and extraordinary threat." (Incidentally, violating the IEEPA was one of Clinton supporter Marc Rich's many transgressions.)

On September 23, 2001, President Bush announced the existence of just such a threat. Executive Order 13224 declared that the "grave acts of terrorism" and the "continuing and immediate threat of future attacks" on the United States constituted a national emergency.

President Bush then froze the assets of twenty-seven groups and individuals, each of which

he designated as specially designated global terrorist groups (SDGT). At the time, the administration earned plaudits from all but the most hardened leftists for its recognition that terrorist money is the ultimate source of terrorist evil; not exactly the root cause so much as the root itself.

The executive order authorized the designation as an SDGT of anyone who: acts "for or on behalf of;" is "owned or controlled by;" assists, sponsors, or provides ". . . services to;" or is "otherwise associated with" a designated terrorist group. The order also provided mechanisms for administrative review of any SDGT designation and for obtaining a license to conduct business with such groups under limited circumstances.

Among the groups specified were terrorist front organizations like the Wafa Humanitarian Organization and the Al Rashid Trust, both linked to jihadists like Hamas and Islamic Jihad. Later included were the Partiya Karkeran Kurdistan (Kurdistan Workers' Party) (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) or Tamil Tigers, whose supporters were the plaintiffs in the lawsuit before Judge Collins.

The PKK is a brutal international Marxist-Leninist revolutionary group dedicated to creating a Kurdish homeland by hook or by crook, and always by violence. It carried out bombings against civilian and military targets, mostly in Turkey. Its founder and leader, terrorist mastermind Abdullah Ocalan, was captured and convicted in Turkey in 1999.

The Tamil Tigers are likewise a violent separatist movement responsible for the deaths of hundreds of civilians, including an especially ghastly shooting in a Buddhist temple in 1985. Seeking an independent state for Sri Lanka's Tamil population, the LTTE most recently killed over one hundred people in a bus bombing in October. While neither of these groups are Islamist, they have proven poisonously lethal.

Nevertheless, Judge Collins stacked the deck in the first paragraphs of her opinion where she described the PKK as "a political organization representing the interests of the Kurds in Turkey, with the goal of achieving self-determination for the Kurds in Southeastern Turkey." Well, that's one way of putting it.

She also depicted the TTLE's "activities" as "political organizing and advocacy, providing social services and humanitarian aid, defending the Tamil people from human rights abuses," oh, and, by the way, "using military force against the government of Sri Lanka."

The court portrayed the particular litigants as "seeking to provide support to the lawful, nonviolent activities" of the PKK and the LTTE.

And while Judge Collins rejected several of the groups' constitutional challenges, she held that the Executive Order "provides no explanation of the basis upon which these twenty-seven groups and individuals were designated." Thus, the president's authority was so vague as to violate the Constitution.

Furthermore, because "the President's designation authority is subject only to his unfettered discretion," the administrative procedure for challenging such designations was found wanting. And just like that, in five crisp paragraphs, the administration's power to designate terrorist groups was suddenly eliminated.

In addition, Judge Collins held that the Executive Order, which prohibits individuals from "otherwise associat[ing] with" the SDTGs, violated the plaintiffs' First Amendment freedom of association. Because the Order did not define what this term meant, it impermissibly "lends itself to subjective interpretation" and improperly "gives the Government unfettered discretion in enforcing it."

In many ways, then, the court piled on to previous recent national security rulings that went against the administration.

The key theme is "unfettered discretion," a term that appears no fewer than 11 times in Judge Collins's opinion. In the minds of many of our nation's jurists, the cardinal sin of the Executive Branch is to arrogate to itself undue prerogative. When the administration seizes excessive authority in matters properly allocated to the other branches, this argument goes, our entire system suffers.

Fair enough - in peacetime and in matters of domestic policy. Our founders unquestionably favored the separation of powers as one of their highest ideals. No single branch ought to dominate any of the others.

But when we are at war, over the course of our history - both legal and political - the president has traditionally enjoyed much greater leeway in setting policy in the national security ambit. Only the executive can act decisively and efficiently in the face of gathering or present threats.

It's therefore especially surprising that the court would strike down President Bush's authority to designate terrorist groups as such. Who is better equipped than the executive - privy as he or she is to top-secret intelligence and an enormous range of information - to make such determinations?

As for Judge Collins's reasoning, there may well be occasions on which the president simply cannot divulge the justification behind labeling a certain organization an SDTG. That very decision could itself implicate national security concerns.

Practically speaking, the ruling marks a victory for terror groups around the globe. If the U.S. cannot effectively uproot the terrorist money tree, it will continue to bestow its fruits on groups ranging from Hezbollah to Al Qaeda to the PKK.

But more fundamentally, this is a major symbolic blow to the War on Terror. If we are not allowed even to define the enemy, how can we possibly hope to defeat him? If we are deprived of the very opportunity to identify the nature of our adversary, we have already fallen into his clutches.

The administration has vowed to appeal this ruling, as it has all of the others it has recently lost. Here's hoping it prevails - for all of our sakes.

Michael M. Rosen, TCS Daily's intellectual property columnist, is an attorney in San Diego.



The Congress needs to restrict the jurisdiction of the courts
Bush demonsttrated his bombling when he and the Republicans could have restricted the jurisdiction of the courts over a broad range of issues as authorized in the Constitution to prevent their imperial fiat in areas where the founding fathers would be dismayed at their insertion. The courts have no business running foreign policy or interferring with national security issues. But since the judge is a Clinton appointee we can expect additional similiar rulings that will disarm the government in its efforts to protect us from a foe that will not abide by the laws of the civilized war.

Its too bad that we have to content with not only a judicial system run amok but a ruling party that feels it has to represent the interests of our foes rather than the American people.

Civil war?
Am I allowed to call a civil war a civil war?

more e.g.s of when
When you are the (biased)BBC. They are not allowed to call anyone a terrorist. So if it happens that someone is sawing off the head of an infidel, the BBC must say something like, "the guy was beheaded by people that the relatives of the victim called a terrorist". Another example is when american liberals are speaking. They don't seem to recognize anyone as a terrorist but just as some poor misunderstood downtroden victim of american imperialism whose justified grievances have not been paid of yet.

legislatin' from the bench
Our government is flawed where we have Federal Judges who think they have the right to rewrite laws whenever they want.

Giving up freedom
The focal point of the article is this passage:

"The key theme is "unfettered discretion," a term that appears no fewer than 11 times in Judge Collins's opinion. In the minds of many of our nation's jurists, the cardinal sin of the Executive Branch is to arrogate to itself undue prerogative. When the administration seizes excessive authority in matters properly allocated to the other branches, this argument goes, our entire system suffers.

"Fair enough - in peacetime and in matters of domestic policy. Our founders unquestionably favored the separation of powers as one of their highest ideals. No single branch ought to dominate any of the others.

"But when we are at war, over the course of our history - both legal and political - the president has traditionally enjoyed much greater leeway in setting policy in the national security ambit. Only the executive can act decisively and efficiently in the face of gathering or present threats."

What the author is advocating is the conversion of our democracy into a dictatorship-- with the understanding, of course, that when a war that is by definition never-ending is over, a benign dictator will readily hand control of his government back to us, the citizens.

Historically, this has never happened. But what the hey, three thousand people were killed in an act of terror. So let's throw out the balance of powers and place ourselves in the hands of people who will suspend all of our civil rights indefinitely. That will put us ahead of the game.

Someone has to do it
On the other hand, isn't it the role of a federal judge to determine when our laws have been trespassed against?

You seem to be saying that the laws are all right for mere mortals, but that our leaders are above the law. We have fought a revolution to protect the notion that this is not the case.

Check your sources
According to Google, the BBC news services have used the words "terrorist" or "terrorism" on 117,002 occasions in their news stories. Those must have been stories you missed.

Here is a typical such story:

Adapting To Change
We live in a society that is becoming more technologically advanced everyday. Some of the values expressed by Americans in the past are outdated. As humans, we live with the realities of the world.

The technological advancements of the 21st century will continue to change our lives. Technology can enable great improvements worldwide. In this vastly improved world order, humans must relinquish a small degree of private freedom for the common good. Technology should be installed and used to keep people safe! Mankind must adapt to this change during this period of history.

Unil the next attack in North Carolina or DC or ....?
Then you will scream why didn't someone do something to prenvent this?

Burn your damned soap box
The author is advocating calling a spade a spade.

The author is advocating integrated (as opposed to disintegrated) leadership in a time of war. The President is constitutionally Commander and Chief in such times. I do not agree with the "war on terror", but I am not about to advocate some idiot judge essentially saying that terrorists can organize politically and magically shazam! their way out of being treated as terrorists.

Congress shall make no law . . .
What do you "legislatin' from the bench" types think should happen when Congress passes a law depriving someone "of life, liberty, or property, without due process of law"? Presidential fiat is not due process.

As for "we are at war", as they say in my town: "Oh puhleeeze!" A US scale war involves millions of soldiers, not 150,000.

When he is in the NATO armed KLA
"The KLA are undoubtedly a terrorist group"
According to the US ambassador to Kosovo, obviously, at the time, unaware of CIA & Mr bin Laden's support for them.

So long as the US is actively supporting people engaged not only in terrorism but in genocide the whole "war on terror" is a lie.

It only took 10 or so to destroy the WTC.
How many to detonate a nuclear weapon in NYC or DC or LA or distribute chemical or biological weapons?

It is the 'quality' of the attack, not the number of soldiers.

You Know You're In Trouble When White Racist Americans Can't Understand That They Are The Terrorists
Another white racist decrying other's objecting to calling all Arabs and Muslims "terrorists".

Are you NeoCons all simpletons?

Can you not recognize the legitmacy of a people not wanting to be occupied by murdering, rapist terrorists in American Uniforms?????

Just another chickenhawk coward racist talking white racist trash, because he is white racist trash.

His "argument" is no argument at all. He wants to curtail our few remaining freedoms to protect his right to be white racist trash and support the mass murder of innocent children, women and men in Iraq and in the whole of the Arab/Persian/Indonesian/African world.

Has anybody noticed that you used to be able to contact these white racist trash writers on TCS via email, but now there are no contacts to tell them what sick disgusting people they are?

When is a terrorist not a terrorist?
When roy dislikes those that you are killing.

According to Justice Bremer
Judges have to make sure that any law has the right result (as determined by the judge) before the judge can determine if a law is constitutional.

That is, the judges view of moral and immoral trumps the view of the legislature, and the people who voted for that legislature.

Got bad news for you, oh ignorant, (presumed) non-white ranter
Most Muslims from the Middle East are Caucasion. Islam is a religion that is indigenous to Caucasian people.

And as the black man Larry Elder wrote in his book, 'The Ten Things You Can't Say in America', black people are a lot more racist than white people. As your ignorant ranting demonstrates loudly.

Kurds in Iraq, Kurds in Turkey
This discussion shows the vacuity of the term 'terrorist'.

The very same people are your (Americans') allies in Iraq when they fought against Saddam or today against the Mullahs, but should they step across the border and conduct the very same campaign - for the existence of a free Kurdistan - by the very same means they become terrorists.

The judge is astute enough to recognize is that the definition of 'terrorist' is not based on whether you kill innocent people but rather whether you are allied with the American government.

The world is well aware of this - we've seen things like the Allende coup, the death squads in El Salvador, the Contras in Nicaragua, the Taliban when they were fighting the Russians, Hussein when he was fighting Iran, the torture in Abu Gharib, the carpet-bombing of Lebanon by the Israelis.

The only people blind to this seems to be Americans.

What is terrorizing about
"the carpet-bombing of Lebanon by the Israelis"?

The Muslims always deserve what they get from Israel, and Israel has never given them fully what they deserve since 1967.

More gobblygook
I wonder if the left cares about this nation at all. Decisions like this are so utterly absurd it is insane. The left challenges even the most trivial attemts to criminalize terrorists groups. If they refuse to appreciate the goals of the terrorists then fine but why should the rest of use be endangered just because they refuse to pull their respective heads out of the sand? At every turn they undermine any effort to control these groups, track these groups and prosecute these people. Why don't we just give up? That is what you advocate on the left, total submission.

He says he is white. It is irrelevant as he is a raving lunatic. I have offered him the chance to leave several times since he hates this country so much but I guess he is to lazy or he enjoys living in a bitter state...

Commissar Roy 'laws, we don't need no f... laws"
Poor Commissar Roy cannot seem to grasp that laws are not made from the bench and anyone who believes the laws have been broken may bring suit.

Give me a break
He is not advocating a dictatorship. You called me insane, I find the constant fear that any attempt to deal with the terror threat is some immediate threat to you liberites. Let us suppose that more bombings do occur, as unlikely as you have poiinted out many times. When does this impact my right to life and liberty? He is correct that certain decisions have to be made by one man. This is a major tenent of liberalism is that they see all decisions as a commitee and consensus. Well sorry, but sometime hard decisions have to be made and they cannot be made by a encounter group. If congress were to make every decision regarding war, as a example, we would lose every time. They have a say but they do not make the final decision. Why do you think the executive branch exists anyway? Of course, the balance of power only exists when you agree with the decisions?

Ashes to ashes and dust to dust
Holden wants us on the slippery slope to Hell.

Held in the Balance
Judge Beanie conveniently forgets that Congress overwhelmingly and with bipartisan backing voted to grant the President's war request.

Commercial port defenses
Actually I've gotten very worked up about the issue of potential attacks in NC. We do have a couple of busy commercial ports, and I've tested their defenses myself. Only to find them essentially nonexistent.

To that effect I've diligently contacted the Ports Authority Harbormasters, writing them with detailed comments about the holes I've found in their walls. And never gotten an acknowledgment, a thank you or a get stuffed from either of them. Substantive ports defense is just not one of our priorities.

In other words, you can climb the fence and hang on it. No electricity, no dogs, no cameras, no nothing. The men in black never come around to ask you what you're doing there. They all go home at five o'clock.

unwilling to adapt
Some of us do not believe the values of our founding fathers are outdated. As those values are enshrined in our constitution, I would ask that those Americans who seek to strip us of our liberty do so via constitutional ammendments.

We should not be so quick to sell our hard won Liberty for some imagined safety. I'm not yet ready to adapt to the corperate police state.

Who Are The Terrorists?
White racists like dbt666 try and tell us the "Muslims" started some war on 9/11. And that we live the "good life" of freedom and that's why "Muslims" envy us and want to attack us. We've been raping and slaughtering Muslims/Arabs/Persians for over 150 years; we've killed several million of them at least, so we can hardly call the 3000 killed on 9/11 a reason to commit mass murder of several hundred thousand innocent civilians in Iraq; some response to "their war on us". We've been at war with brown and black people for 300 years; so a bunch of religious lunatics killing 3000 Americans has nothing to do with George W. Bush and dbt666's retarded racist hopes and dreams. They are both dinosaurs; and the world will be much better off when they go to sleep some night thinking they're the "king of the world" like Sousa says; and they don't wake up because they're too stupid to keep breathing.

1953 - America overthrows Iranian Government and installs Brutal Dictator Shah of Iran who procedes to murder and terrorize for decades with our full support.
1954 - America overthrows democratically elected President Arbenz of Guatemala and kills thousands of civilians in the process. America continued to support the military dictatorship for the next 40 years, causing
over 200,000 more deaths among innocent civilians. Even Bill Clinton went there in 1999 and apologized by saying: "For the United States, it is important that I state clearly that support for military forces and intelligence units which engaged in violence and widespread repression was wrong, and that the United States should not repeat that mistake." (I guess Bush wasn't listening was he?)
1959 - Present - America involved in the murder of thousands of Cubans through assassinations, bombings, invasions and more violence. America still illegally occupies part of the Island of Cuba and holds thousands of Prisoners of War incommunicado there, torturing and abusing them, in stark violation of the Geneva Convention against mistreatment of prisoners of war. The Geneva Convention also states that all POW's are to be released after the war is over.

Tell your doctor
to put you back on your meds before you hurt someone, such as yourself.

your not supposed to see througth the hype
The American public is made to feel so terrorized that they willingly sacrifice thier liberty, even while the threat to ports isn't worth 24 hour guards or inspecting half the shipping containers comming into this country.

You sure throw the race card a lot. Is there any aspect of you obviously miserable life not dominated by race? Do you actually have a point ever? Oh, and by the way FIY. The Geneva convention only applies to uniformed combatants, not low life terrorist who kill babies and children to further their twisted vision of humanity. For that matter are not Jews a race? I bet you would cheer the extermination of Israel in a nano-second?

When The Hussein-led Iraqis gassed the Kurdish minority, I was one of the few teenagers in Amnesty International who wrote about it and spoke about it in my Chaminade HS Social Studies class and club in 1983-84. Am I to believe that the Kurds don't have a right to a homeland? Or is it they were just allowed to ask for one from people trying to kill them and not form a political party and actually fight for one? I remember pretty clearly that the Bush administration tried to use what happened to the Kurds as justification for capturing Hussein, but now they are considered terrorists? This is almost as embarrassing as when Reagan said Contras in Nicaragua were the moral equivalent to the Founding Fathers in America.

inconsistancy didn't start here
If someone who is responsible for taking out a civilian jetliner (Luis Posada Carriles) can be exempted from being called a terrorist because that jetliner was Cuban, then why can't doctors, nurses or politicians affiliated with the wrong groups be let off the hook?

My sister works for a major port. Do you have any idea of the magnitude of containers? There is in fact considerable working going on but like after Pearl Harbor, it takes time. Especially when 50% of the people don't think there is any threat.

The majority doesn't have a clue, however were not all blind.

Why not
I thought there was no threat?

Yes, sir!
Right. The Constitution's just a scrap of paper. Got it.

Respectfully disagree
Let one man overturn the courts, and the whole rule of law is held at his whim. This is what we fought the Revolution for. And the principle that no man is above the law is more important than the thought that we might let one or two fish swim through the net.

how what you just said has any relevance to the essay in discussion.

In the wake of 9/11 Congress was running scared, and granted him the right to go a step further. But they did not intend that he go as far as eliminating all our liberties.

Let's ask them again, and see what they say about it this time.

You merely speak out of hindsight,
as the Congress would now. The Constitution was followed to the letter.

Yes, our freedoms are continously being eroded. However, not by a single one of the mechanisms proposed by you.

There is a threat.
In response to the threat one of the things we should do is beef up security along our borders and at our ports. Just because I'm not willing to burn the constitution doesn't mean I favor ignoring the problem.

They're only our freedoms
"Some of the values expressed by Americans in the past are outdated."

You've bitten off quite a mouthful there, bro. We're talking about our Constitutional freedoms.

The spirit of our body of law against "unreasonable" search and seizure is that when the government wants to read someone's mail, or seize his property, it must get the court's permission before doing so.

And in the spirit of the pressing problems we've encountered in the wake of 9/11 Congress has even broadened that, so that the search can be made in the nick of time, and a FISA warrant obtained up to 72 hours afterward.

Our president has said that's not enough, and maintained that his is an imperial, or "unitary" presidency, knowing no bounds. This, of course, is the definition of a tyranny, if you've studied any Greek history. And IMO we're not that desperate yet that we should chuck the whole rule of law and aquiesce to the rule of a tyrant.

What happens when they legislate from the bench? Ever listen to Souters arguments? It is frightening.

This was directed not at you but Roy who one one hand tells me there is not threat and on the other penetrates port security trying to show the threat. SOrry...

Article III, Section 2 Role of Judges
"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

The exceptions clause of the United States Constitution (Art. III, ยง 2, Cl. 2) grants Congress the power to make exceptions to the constitutionally-defined appellate jurisdiction of the Supreme Court.

In short, the two centuries old, ever expanding arrogation of power taught in law schools under the auspices of the bar-serving dogma known as Marbury v. Madison allowing courts the untramnmelled right to interfere is nonsense.

What we need is a President and legislators who will act with the same bold resolve Mr. Lincoln did and tell the courts to buzz off.

The Congress could, if it weren't full of lawyers whose first loyalty is to the club- pass a law telling SCOTUS to buzz off, unless it is specifically empowered to by the Constitution under the enumeration of cases of original jurisdiction.

What you have just experienced is not a test, its a crime.
"I've tested their defenses myself. Only to find them essentially nonexistent."

Really? Under whose authority? Because, unless you are duly appointed - thats a CRIME.

Commissar fears voters-what will happen to the politboro if we allow laws to exist?
Poor Roy fears the rule of law and loves a system where an elite tells you what they decided the laws to be not what they are.

Its a trademark of Leftists the world over when they depend on people and not the law.

Roy advocates removal of rights
Nice try Roy. Searching for the Constitution for the judiciary's power to make war or make foreign policy one finds zero. So one can understand your advocacy of policies that would undermine our government's ability to defend us. After all who else but you supports the jihaddies victories with such consistency?

Nightstalker Commissar Roy defends the rights of terrorists-again
We'll at least the Nightstalker Commissar got something right when he said "our" rights. Clearly Roy isn't referring to Americans but to terrorists when he decries measures that would protect the lives and welfare of citizens and the Constitution.

After all when the Nightstalker Commissar talks about unreasonable search of a foreign terrorist messages to his cohorts planning the deaths of tens of thousands of Americans what could be more unreasonable than the US govewrnment trying to prevent or stop such activity.

One wonders how the Commissar who believes that democracy is garbage of his views are not enforced and has stated he'd slit the throats of anyone who disagreed with him in their sleep can post such tripe and except anyone to believe any of his endless agitprop.

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