Recently in Terrorism Category

U.S. Asks SCOTUS For Travel Ban Stay

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Back in September, the 90-day travel ban on immigration from six particularly problematic countries expired, and in October the Supreme Court dismissed the challenges to the ban as moot.  See posts of September 24, September 26, October 10 and October 24. As envisioned in the original executive order, the short-term ban was replaced by a more detailed, considered rule based on the ability and willingness of the countries at issue (a somewhat different set from the prior six) to provide the information needed to vet those seeking entry.

Despite the marked differences in the orders, a U.S. District Judge in Hawaii granted a temporary restraining order against enforcement of the key section except as to Venezuela and North Korea. A single district judge, it seems, is now better suited than the Department of Homeland Security to determine if the means chosen by DHS, in consultation with the Departments of State and Defense, is a good fit to the end to be achieved on a matter of national security and foreign relations. Or at least he thinks he is.

The government consented to the conversion of the TRO to a preliminary injunction to make it appealable. The Ninth Circuit stayed the injunction, with the major exception of "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." That is a hole you can drive a truck through (a truck loaded with explosives), so the government has asked the Supreme Court for a complete stay.

Travel Ban Case Off Calendar

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As noted in this post Sunday, the 90-day travel ban in the case before the Supreme Court expired on that day and was replaced by a very different order.  The 120-day refugee restriction will expire in October.  Yesterday the Supreme Court took the case off the calendar and ordered the parties to further brief the mootness issue:

The parties are directed to file letter briefs addressing whether, or to what extent, the Proclamation issued on September 24, 2017, may render cases No. 16-1436 and 16-1540 moot. The parties should also address whether, or to what extent, the scheduled expiration of Sections 6(a) and 6(b) of Executive Order No. 13780 may render those aspects of case No. 16-1540 moot. The briefs, limited to 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before noon, Thursday, October 5, 2017. The cases are removed from the oral argument calendar, pending further order of the Court.
CJLF's amicus brief supporting neither party, specifically on mootness, is here.  Amy Howe has this post at Howe on the Court, republished at SCOTUSblog.

New Travel Limitations Announced

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The same executive order that announced a 90-day travel ban for selected countries also directed cabinet officers to develop a more tailored approach to countries that cannot or will not provide the information needed to vet people coming in.  The 90-day ban expires today, and the Administration announced the replacement package in a Presidential proclamation.

Laura Meckler has this story in the WSJ.  See also Friday's post.


Is Antifa a Street Gang?

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David Pyrooz and James Densley assert that Antifa can be designated a street gang in this op-ed in the WSJ. They note that there are many definitions of "street gang":

Yet under any scientific or official definition, Antifa makes the grade. Gangs are groups. They have a collective identity, which includes signs, symbols and other features that distinguish the in-group from the out-group. Bloods wear red; Crips wear blue; Antifa wear black. It's obvious when Antifa members join protests, even for the untrained eye. And don't be fooled by Antifa's diffuse structure. Conventional street gangs are pretty disorganized too.
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Evil or Crazy?

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When a shocking incident such as the Charlottesville car-murder occurs, we have to wonder if the perpetrator is evil or crazy.  Six years ago, Jared Loughner killed six people and wounded many others at a congressional event in Tucson, Arizona, and most people initially believed it was an act of political terrorism.  It turned out Loughner was floridly schizophrenic.

From the picture emerging out of Virginia, it appears that James Fields is mostly evil but maybe a little crazy.  Dake Kang and Sarah Rankin have this story for AP.  Along with being an admirer of Adolf Hitler and Nazi Germany, it appears that he beat his own mother and threatened her with a knife.  He also was diagnosed with schizophrenia at one point, but it does not appear so far that his mental illness was on the same scale as Loughner's.

Bill argues in this post that the crime calls for the death penalty.  At this point, Fields has been charged with second-degree murder, which would preclude that sentence.  The charge could be upgraded as further facts develop, however.  Stay tuned.
On June 26, the U.S. Supreme Court granted in part the Government's request to stay the injunctions against enforcement of the travel ban for nationals of six countries.  The court left the injunction in effect for, among others, persons with "a close familial relationship" with a person in the United States.  How close is "close"?  The Supreme Court did not say.

The Government's interpretation was largely along the lines of family relationships that Congress has designated as close enough to file an application for a family-based immigration petition, which seemed sensible to me.  The U.S. District Court did not think so and modified its injunction to include "grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States."  Sounds like something out of Gilbert and Sullivan

The District Court also enjoined application of the Executive Order to two classes of refugees, those who "(i) have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee; or (ii) are in the U.S. Refugee Admissions Program through the Lautenberg Program."

Acting swiftly in response to a petition by the Government, the Court issued this order:

The Government's motion seeking clarification of our order of June 26, 2017, is denied. The District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government's appeal to the Court of Appeals for the Ninth Circuit.

Justice Thomas, Justice Alito, and Justice Gorsuch would have stayed the District Court order in its entirety.
Hmmm.  The District Court's furthest stretch, to refugees who merely have an assurance from an agency but no other contact within the U.S., is stayed, but the rest remains in force.  This is the Supreme Court that our Politically Correct academia keeps telling us is "conservative."
The U.S. Court of Appeals for the Ninth Circuit today decided In re National Security Letter, No. 16-16067:

In this case, we consider challenges to the constitutionality of the law authorizing the Federal Bureau of Investigation (FBI) to prevent a recipient of a national security letter (NSL) from disclosing the fact that it has
received such a request. 18 U.S.C. § 2709(c). An NSL is an administrative subpoena issued by the FBI to a wire or electronic communication service provider which requires the provider to produce specified subscriber information that is relevant to an authorized national security investigation. Id. § 2709(a). By statute, the NSL may include a requirement that the recipient not "disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records" under the NSL law. Id. § 2709(c)(1)(A). Both the information request and the nondisclosure requirement are subject to judicial review. See id. § 3511. (Because § 2709 and § 3511 work together, we refer to them collectively as "the NSL law.")

Certain recipients of these NSLs claim that the nondisclosure requirement violates their First Amendment rights. We hold that the nondisclosure requirement in 18 U.S.C. § 2709(c) is a content-based restriction on speech that is subject to strict scrutiny, and that the nondisclosure requirement withstands such scrutiny. Accordingly, we affirm.
The opinion is by Judge Ikuta, with Judges R. Smith and Murguia concurring.  I think a petition for rehearing en banc is nearly certain.

Repeal and Replace

President Trump has issued this Executive Order titled, "Presidential Executive Order on Protecting the Nation from Foreign Terrorist Entry into the United States."  Section 13 provides:

Sec. 13.  Revocation.  Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order.
Daniel Nasaw describes the differences in the old and new orders for the WSJ.

When a case becomes moot pending review, the lower court decision should be vacated and cease to have effect as precedent.  This is called the Munsingwear rule.  "The point of vacatur is to prevent an unreviewable decision 'from spawning any legal consequences,' so that no party is harmed by what we have called a 'preliminary' adjudication."  Camreta v. Greene, 563 U.S. 692, 713 (2011), quoting United States v. Munsingwear, Inc., 340 U. S. 36, 40-41 (1950). 

In other words, the rule facilitates getting rid of bad law that can no longer be reviewed.  It also provides fodder for bad jokes about Munsingwear briefs.

The Ninth Circuit should grant rehearing en banc on the prior case, vacate as moot, and wipe that precedent off the books.  If someone wants to challenge the new order, that is a new case.

And Congress still needs to do something about venue and judge shopping.
Kwanwoo Jun, Alastair Gale, and Ben Otto report for the WSJ:

North Korean dictator Kim Jong Un issued an assassination order to kill his half-brother after seizing power in 2011 and agents tried to execute it at least once before succeeding this week, South Korea's top spy chief said.
The Ninth Circuit has declined to stay the temporary restraining order issued by Judge Robart in Washington State preventing enforcement of Executive Order 13769, the controversial travel restrictions on nationals of seven countries.

The Ninth is, of course, correct that due process protections apply to legal permanent residents (i.e., "green card" holders).  Yet even though the Administration has said it won't apply the limitations to permanent residents, it held that such application was not moot.
The U.S. Court of Appeals for the Ninth Circuit issued the following order today in State of Washington v. Trump et al., No. 17-35105:

The State of Hawaii's emergency motion to intervene (Docket Entry No. 21) is denied for the purposes of this appeal only. The State of Hawaii's motion for leave to file an amicus curiae brief (Docket Entry No. 21) is granted. The State of Hawaii's amicus brief has been filed.

Appellants and appellees shall appear by telephone for oral argument on Tuesday, February 7, 2017 at 3:00 p.m. PST. Each side will be permitted 30 minutes of argument time. Call-in instructions will be provided to the appearing parties. A recording of the oral argument will be made available to the public promptly following the conclusion of oral argument.

All other pending motions will be addressed by separate order.
The court's case information page on this "case of interest" is here.
Ed Royce, chairman of the House Foreign Affairs Committee has this op-ed in the WSJ with the above title.

With less than a month remaining in office, President Obama is racing to free 19 more detainees from the terrorist prison at Guantanamo Bay. If history is any guide, this means that dangerous jihadists will be released to countries ill-equipped to handle them.

While many wondered whether Mr. Obama would fulfill his 2008 campaign promise to close Gitmo by breaking a bipartisan law barring him from bringing detainees to the U.S., the House Foreign Affairs Committee has remained focused on the president's push to empty out the prison through reckless transfers to other countries.
The correct path to emptying Gitmo seems rather obvious.  The lesser detainees have already been released or transferred.  The major ones, for the most part, have been in custody long enough as to no longer have value for interrogation for intelligence purposes.  What do we do with them, if we don't want to keep them in Gitmo or transfer them to foreign governments?

They should not be on American soil; they should be in it.  Why is KSM still alive?

The military tribunals were set up to be swift.  Unlike the independent Article III judiciary, they are under the command of the commander-in-chief.  So order them to get it done.

Miranda Warnings for Terror Suspects?

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Since the capture of Ahmed Khan Rahami for the weekend bombing in NYC that injured 29 people, it has become clear that Rahami is a Jihadist.  A couple of years ago, his father said point-blank that he was a terrorist; he has traveled abroad to become steeped in radicalism, and his social media writings suggest the typical Jihadist hatred for the United States.

For fifty years, we have been required to give Miranda warnings to suspected criminals undergoing custodial questioning.  The question is whether that requirement should be extended beyond the standard criminal to a man more appropriately looked upon as an enemy combatant.

I addressed this issue once before, discussing the underpants bomber captured at the Detroit airport.  Some readers have asked me to link that discussion, and I do so here.

Lessons from Israel and Last Weekend

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WSJ columnist Bret Stephens has this article discussing the lessons learned from his years in Israel and from this past weekend here at home.

What's the lesson here for Americans? This past weekend's terrorist attacks hold at least two. One is that there is a benefit for a society that allows competent and responsible adults to carry guns, like the off-duty police officer who shot the knife-wielding jihadist in St. Cloud, Minn. Another is that there is an equal benefit in the surveillance methods that allowed police in New York and New Jersey to swiftly identify and arrest Mr. Rahimi before his bombing spree took any lives.

These are lessons the political left in this country doesn't want to hear, lest they unsettle established convictions that weapons can only cause violence, not stop it, and that security is the antithesis of, not a precondition to, civil liberty.

Another Young Man of Color Shot by the Police

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If we start making lists of "young men of color shot by the police," this episode will be included.

Which shows you why making such lists is absurd  --  it feeds on, and spreads, ignorance, in the hope of goosing the false narrative that the cops are a fascist army.

What the episode is actually about is the capture within the last couple of hours of the fellow, Ahmad Khan Rahami, who is suspected in the New York City bombing and attempted bombing last weekend.  Mr. Rahami had a shootout with the police, hitting one in his bulletproof vest (is that "military" equipment?) and the other in the hand.

Fortunately, Rahami was taken alive and can be questioned. CNN starts its report:

Ahmad Khan Rahami, the man suspected in bombings in New York and New Jersey, is now in custody after a shootout with police, sources said.

The shootout happened Monday in Linden, New Jersey. Rahami was shot and was taken to an ambulance in a stretcher with his right shoulder bloodied and bandaged.

Two officers were hit in the shootout with Rahami, the mayor of the nearby city of Elizabeth said. One officer's vest was struck, and the other was shot in the hand.

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