[Peace-discuss] Obama's Material Support for Terrorism

[C. G. Estabrook]

Where Will Obama Try Himself for Material Support for Terrorism?
By: emptywheel Wednesday March 30, 2011 11:13 am

I consider this a wicked brain teaser:

The Obama administration is engaged in a fierce debate over whether to supply 
weapons to the rebels in Libya, senior officials said on Tuesday, with some 
fearful that providing arms would deepen American involvement in a civil war and 
that some fighters may have links to Al Qaeda.

The debate has drawn in the White House, the State Department and the Pentagon, 
these officials said, and has prompted an urgent call for intelligence about a 
ragtag band of rebels who are waging a town-by-town battle against Col. Muammar 
el-Qaddafi, from a base in eastern Libya long suspected of supplying terrorist 
recruits.

“Al Qaeda in that part of the country is obviously an issue,” a senior official 
said.

On a day when Libyan forces counterattacked, fears about the rebels surfaced 
publicly on Capitol Hill on Tuesday when the military commander of NATO, Adm. 
James G. Stavridis, told a Senate hearing that there were “flickers” in 
intelligence reports about the presence of Qaeda and Hezbollah members among the 
anti-Qaddafi forces. No full picture of the opposition has emerged, Admiral 
Stavridis said. While eastern Libya was the center of Islamist protests in the 
late 1990s, it is unclear how many groups retain ties to Al Qaeda.

After all, according to Holder v. Humanitarian Law Project any help to a 
terrorist group–even counseling on how to make peace–is material support. And no 
matter how we try to spin arming rebels as an act of peace, it’s a good deal 
more help than legal counsel.

And, as the DC Circuit’s decision yesterday in Uthman Abdul Rahim Mohammed 
Uthman’s habeas suit makes clear, it’s not enough for a person to stop 
associating with al Qaeda in the 1990s, nor does the government need any real 
evidence of a tie between someone in al Qaeda’s vicinity to claim that person is 
a member of al Qaeda.

Uthman filed a challenge, and in February 2010, District Court Judge Henry H. 
Kennedy, Jr. ruled that he was being improperly held and that the United States 
had failed to demonstrate that he was a member of al-Qaeda. As ProPublica 
detailed, the government censored Kennedy’s decision and quickly appealed the 
case to a court that was already lowering the government’s burden for proving a 
prisoner’s detainability.

In another case last year, known as Salahi, the appeals court rejected a lower 
court’s standard that the government show direct evidence the detainee was a 
member of al-Qaeda. In that case, the court sent the detainee back to the 
district court to have his habeas corpus petition reheard.

In today’s opinion, written by Judge Brett Kavanaugh, the appeals court went 
further by reversing the habeas win outright. In doing so, the court determined 
that circumstantial evidence, such as a detainee being in the same location as 
other al-Qaeda members, is enough to meet the standard to hold a prisoner 
without charge.

That standard, the court wrote in its decision today, “along with uncontested 
facts in the record, demonstrate that Uthman more likely than not was part of al 
Qaeda.”

By the DC Circuit’s standards, it seems clear, at least some of the rebels we’ve 
been helping (and are debating arming) are the same as al Qaeda for legal purposes.

Which would mean we’ve already been offering material support to terrorists.

If I were Obama, I’d make the decision quickly about where he wants to be tried 
for material support of terrorism. If Bud McKeon has his way, he’ll take away 
the President’s decision-making authority on whether to try Americans in 
civilian or military trials.

So if you’re the President and need to decide where to try yourself for material 
support for terror, where do you do it?

Update: Mark Hosenball cites four different sources saying Obama signed a covert 
order to arm the rebels 2-3 weeks ago.

Obama signed the order, known as a presidential “finding”, within the last two 
or three weeks, according to four U.S. government sources familiar with the matter.

I forget. Does material support for terrorists done under cover of a Finding 
qualify as material support for terror?

It’s all so confusing!!!