01/02/2013
Law Professor Eugene Kontorovich has a Volokh Conspiracy post on the Obama Administration’s latest foray into anti-terrorism — the prosecution of some Somalis for terrorism that has no connection to American: didn’t happen in America, didn’t target America, not committed by people like Al Qaeda or the Taliban who target America at other times.
The Offenses Clause & Universal Jurisdiction Over Terrorists
Eugene Kontorovich • January 2, 2013 2:53 pm
A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group. To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.
This is an aggressive — and unconstitutional — assertion of universal jurisdiction. The U.S. is prosecuting foreign nationals for their participation in a foreign civil war. Congress, as the Supreme Court recently reminded us in the Health Care decision, is truly one of limited regulatory powers, and thus the first question about such a case is what Art. I power gives Congress the power to punish entirely foreign conduct with no U.S. nexus.
The men have been charged under the “material support for terrorism” statute, 18 USC 2339B . Apart from the many controversies about the substantive sweep of the law, it casts a very broad jurisdictional net. By its terms, it applies to foreigners who support designated foreign terror groups with no connection to the U.S. In other words, it makes terrorism anywhere a federal offense.
While the statute has previously been used to prosecute extraterritorial conduct by foreigners that conducted significant dealings in the U.S., this is only the second apparently “universal” prosecution.[More]
There’s a lot of good stuff there, and the takeaway is that the Obama administration feels that anything they do in international law is OK, because they're not George Bush.However, in a sense, this is the kind of thing that’s not our busines at VDARE.com — we're more interested in both terrorism and Obama Administration misconduct that does affect American.
But there’s a media culture aspect. At the end of Kontorovich’s blog post he writes:
The defendants seem to be among the folks discussed in today’s Washington Post renditions story:
The three European men with Somali roots were arrested on a murky pretext in August as they passed through the small African country of Djibouti … . U.S. agents accused the men — two of them Swedes, the other a longtime resident of Britain — of supporting al-Shabab, an Islamist militia in Somalia that Washington considers a terrorist group. Two months after their arrest, the prisoners were secretly indicted by a federal grand jury in New York, then clandestinely taken into custody by the FBI and flown to the United States to face trial.[Emphasis added by me, not Professor Kontorovich.]
Swedes? Swedes?! Swedes, for God’s sake! The FBI says that the arrestees are named Ali Yasin Ahmend, also known as “Ismail”; Madhi Hashi, also known as “Talha”; and Mohamed Yusuf, also known as “Abu Zaid,” “Hudeyfa,” and “Mohammed Abdulkadir”.They're Somalis. If they were actual Swedes, they would not have been allowed to join the Somali terrorist groupl al Shabaab.Why is the Washington Post calling them Swedes?
Email Craig Whitlock, author of Renditions continue under Obama, despite due-process concerns, January 1, 2012, and ask him.
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