From American Soil

The disruption of a plot by a clandestine militant group in Clayton, Michigan, to murder law enforcement officials illustrates perfectly what an unholy and inconsistent mess America’s counter-terrorism architecture has become.

Major Hassan’s murderous rampage in Fort Hood, Texas, is repeatedly described as terrorism but the word is barely mentioned when a group of white right-wing extremists plan to do almost exactly the same thing in Michigan.

The chosen target was the same – men and women in uniform. The chosen method was the same – murder. In both cases the motivation seems to be prompted by perverted religious teachings.

If anything, the militarization of the Hutaree group is more alarming than Hassan’s lone wolf shooting spree. There are forty-six other similar militia groups in Michigan alone. Fifty-seven in Texas. The only real difference between the two incidents is that Major Hassan was Muslim and the Stone Gang Christian.

The alleged members of the Clayton plot have been charged with sedition – seeking to overthrow the elected government of the United States. If there was ever a group that, in the words of George W. Bush, hates our freedoms surely this is it.

Yet our response to the two events is completely schizophrenic. Perhaps this is because the Clayton case raises such difficult questions. Is joining a militia any different than attending a terrorist training camp? What might providing material support to such groups entail?

Is using a nationally syndicated radio show or a platform on a 24-hour news channel any different that promoting hate-speech from a pulpit or minbar?  If the war on terror extends over the globe what implications does this have when the threat springs from American soil?

These are certainly questions worth pondering as the Southern Poverty Law Center reports an upsurge in the activities of these groups in reaction to the election of President Obama.

However, there is also another takeaway here. Law enforcement officials have proven more than equal to the task of meeting the threat these militia groups pose. Somehow the threat just seems less overwhelming when it comes in the form of good ol’boys dressed in jeans and T-shirts.

The Stone Gang will be dealt with entirely within the confines of the criminal justice system. The state’s response will have the legitimacy of more than two centuries of legal precedent and the Stones and their friends will receive all the rights guaranteed to them as citizens by the constitution.

America will not be weakened as a result, quite the reverse. The value of our system of government will be affirmed and the twisted propaganda of the Hutaree and their ilk refuted – quite a satisfactory result. No existential crisis, no panic, just the calm and rational dispensation of justice. It is not a bad model to follow.

How Attacks on DOJ Attorneys Affect You

You might wonder why a person who works on refugee and migrants’ rights is blogging about the attack on Department of Justice attorneys who previously represented Guantanamo detainees. In fact it is related.

While on the surface this latest fracas is about the “right to know” who is representing the government, under the surface this is a wholesale attack on the right to effective legal representation in any context. You see, certain Members of Congress may have called into question the judgment of current DOJ attorneys based on their prior representation of individuals, but by making this inquiry they are actually asking a more fundamental question – do individuals accused of wrongdoing have the right to effective legal counsel at all.

Both international human rights and US constitutional law unequivocally answer yes. But because this inquiry is cloaked in national security rhetoric, naysayers have built a platform for a debate that should have no standing at all. And it’s not an isolated incident.

Many foreign nationals inside the US have experienced a similar narrowing of fundamental rights as they are arbitrarily arrested and detained by local police acting in collusion with federal immigration authorities. Their right to effective legal counsel is constantly undermined by law enforcement authorities, elected officials, and media pundits who contest whether they have rights at all. Why wouldn’t they have rights? Because they look suspicious. That’s all, and for some public figures apparently that’s enough.

This steady erosion of rights on a variety of fronts doesn’t affect foreign nationals alone. It affects every person who is suspected of questionable conduct (whether undertaken or not), and the undermining of rights is often achieved indirectly. In this case, by attempting to shame and ostracize attorneys and advocates who would argue to uphold the rights of the accused in a court of law.

While this direct attack is currently being felt by DOJ attorneys, the consequences of this discourse will be experienced by all individuals accused of wrongdoing. Don’t let elected officials and media pundits pursue this bait and switch without hearing from you.

A presidential pardon would not preclude accountability

The worth of a law is in its enforcement; if a law is not enforced, then it has no more value than a platitude, aspiration, or preference.  Because of this reason, one of AIUSA’s CTWJ campaign goals 100 days goals for the new administration is “accountability.”  Or in other words, AIUSA will demand that the government account for illegal or wrongful conduct of its employees or agents in the “war on terror.”

At first glace, a general presidential pardon (which seems likely in some form) threatens the accountability process.  But as I explain below, a pardon will likely only have a limited affect upon accountability.

As a general matter, a pardon precludes the US from prosecuting someone for criminal acts covered by the pardon.  However, accountability comes in many forms, not the least of which is a process resembling a truth commission.

South Africa's Truth and Reconciliation Commission

South Africa


Congress has authority to summon witnesses to testify in hearings and a pardon does not limit this congressional power.  First, witnesses will have few, if any, 5th amendment rights protecting them from self-incrimination if those witnesses previously received a pardon.  If a witness has immunity, then there is no legal justification for that person to invoke the 5th amendment.  Second, a pardon does not protect a person from prosecution for future crimes.  If a person subject to a pardon refuses to testify, then congress can institute contempt proceedings against that individual.

There is also a question whether a pardon really protects US citizens from criminal liability.  Genocide, torture, or other violations of the law of are grave breaches of international law.  Grave breaches of international law trigger a doctrine called “universal jurisdiction,” meaning a person may be prosecuted by any country that obtains control over the person to be tried.  So, a person subject to a pardon for grave breaches of international law may be immune from prosecution in the US but remain subject to prosecution in any other country.  And if a person has received a presidential pardon but is detained overseas, then that county cannot extradite the American citizen back to the US for prosecution because the US will be precluded from trying the individual in American courts due to the broad application of the pardon.

So while a presidential pardon may create procedural or legal challenges to the accountability process, a pardon will not derail the accountability process.