Terrorism in Southeast Asia—Government Statements

The leaders of two Southeast Asian countries have discussed terrorism recently, and what they have to say is very interesting.

The Prime Minister of Singapore said today that the threat of a terrorist attack in the region is quite high because “groups such as Jemaah Islamiah were recruiting and training new members.”^[1] Even though “[r]egional governments have substantially disrupted the operational capacity of the Jemaah Islamiah,” Prime Minister Lee Hsien Loong, speaking at a security conference, said that that group’s “operatives are still at large.”^[2] He is seeking interdependence among countries by promoting an open and free trading environment, believing that “with a more globalised world, nations, more than ever, need to cooperate with each other.”^[3] Noting that economic frictions and obstacles to trade and investment create disincentives to “uphold the global order,” Prime Minster Lee stated that the challenge is “find the right balance—we cannot ignore security considerations; but if countries override the rules citing security too often, even when it is not involved, we will weaken the international system, and make ourselves less rather than more secure."^[4]

While the threat of terrorism may still be high in the region, due in no small part to the importance of the Malacca Straits for international trade, the Defence Minister of Indonesia is apparently planning on telling US Secretary of Defense Donald Rumsfeld the United States should not “meddle in regional anti-terrorism efforts” when Mr. Rumsfeld visits Indonesia June 6-8.^[5] On the agenda for the meeting are terrorism, piracy in the Malacca Straits, and military cooperation.^[6] According to Indonesia’s Defence Minister, Juwono Sudarsono, “the fight against terrorism in Indonesia and other ASEAN countries should be handled by respective countries and not based on the desire of the United States. We will tell the United States that fighting terrorism using their ways will only be detrimental to the United States because it will only create more anger and antipathy against America.”^[7] The meeting may not happen exactly according to plan, however, due to the recent earthquake.^[8]

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[1] Singapore PM Sees Terrorism Threat in Southeast Asia, Reuters (India), Jun. 2, 2006.
[2] Id
[3] Dominique Loh, An Interdependent World Will Help Combat Terrorism: PM Lee, Channel News Asia, Jun. 2, 2006.
[4] Id.
[5] Indonesia Wants US to Stay Away from Asia’s Anti-Terror Fight, Daily Times (Pakistan), Jun. 2, 2006.
[6] Id.
[7] Id.
[8] Id.

Lodi Terrorism Trial—Umer Hayat Guilty Plea

Umer Hayat, whose trial ended in a mistrial over a month ago, has agreed to plead guilty to lesser charges rather than go through another trial.^[1] Rather than being retried on the two counts of lying about terrorism that he was charged with, Mr. Hayat has pleaded guilty to “lying to customs agents by denying he was carrying $28,000 when he took a trip to Pakistan several years ago.”^[2] The US Attorney’s Office, in the plea agreement, agreed to recommend a sentence of 11 months, the amount of time already served, along with three years of supervised release.^[3] Mr. Hayat will be sentenced on August 18, but, as we have pointed out before, the ultimate sentence is to be determined by US District Court Judge Garland E. Burrell Jr.^[4]

After Mr. Hayat’s trial ended in a deadlocked jury, the government announced they would retry him on the charges, but since the jury split 7-5 and 6-6 on the two separate counts, it decided that a conviction would be difficult to obtain.^[5]

The customs charges arise out of a April 19, 2003 trip to Pakistan when “customs officers stopped the Hayat family at Washington-Dulles International Airport.”^[6] When asked if he was carrying any money, Mr. Hayat said no, but when notified that he must declare amounts over $10,000, Mr. Hayat showed the agent two envelopes with $5,000 each in them; his family was then searched where $10,000 was found on Hamid Hayat and $8,053 was found on Umer Hayat’s wife.^[7] A fine of $2,000 was assessed that the remainder of the money was returned to the family; community members in Lodi signed affidavits declaring that the money was intended for family members in Pakistan.^[8]

It was during that trip that prosecutors allege that Hamid Hayat attended Pakistani training camps.^[9]

Mr. Hayat pleaded guilty to one count of making false statements under 18 U.S.C. § 1001,^[10] and the government would have had to prove the following beyond a reasonable doubt:

1. he made a false statement in a matter within the jurisdiction of a federal agency;
2. he acted willfully; and
3. the statement was material to the federal agency’s acts or decisions.

Cases like this are a perfect example of the way that federal prosecutors will often leave certain charges off the table for later use. As the jury forewoman in Umer Hayat’s trial, Debra Kiriu, told the Lodi News-Sentinel “the jury was never told of the $28,000, even thought the customs agent traveled from Washington, D.C. for the trial,” testifying for only eight minutes.^[11]

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[1] Layla Bohm, Umer Hayat Agrees to Plea Deal, Lodi News-Sentinel, May 31, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Don Thompson, Lodi Man Pleads Guilty to Lesser Charge in Terror Case, Avoids Prison, AP (via News-Review), June 1, 2006.
[10] United States v. Hayat, No. S-05-240 (E.D. Cal. 2006), Plea Agreement at 2.
[11] Bohm, supra note 1.

Domestic Eco-Terrorism—Guilty Plea

While international terrorism sponsored by such groups as Al Qaeda and Abu Sayyaf tends to grab headlines, there are many acts of domestic terrorism which occur every day within the United States, even if they do not garner as much publicity as those on a global scale. For example, police in Florida are currently investigating “a homemade device that spewed a chemical throughout [a] building being readied to open as Café Risque, an adult-entertainment store.”^[1] And in Nutley, New Jersey, officials are investigating a homemade chemical bomb that went off last week in a parking lot which created a 1-foot crater and damaged a Toyota Camry; they are investigating whether it is related to a bomb threat called in to a school in the area on May 16.^[2]

On the other side of the country, a woman pleaded guilty yesterday in a Sacramento Federal District Court to one count of conspiracy in connection with a plan to “blow up commercial and governmental facilities in the Sacramento region.”^[3] Lauren Weiner has agreed to cooperate with the government’s prosecution of her remaining co-defendants, Eric Taylor McDavid and Zachary O. Jensen, who allegedly plotted to destroy the U.S. Forest Services Institute of Forest Genetics, taking credit for their actions on behalf of the Earth Liberation Front [hereinafter ELF].^[4] The ELF has been identified by the FBI as “a terrorist movement dedicated to violent attacks on what its followers believe are symbols of society’s destruction and exploitation of the environment,”^[5] and the Animal Liberation Front is considered to be an ally of the ELF.^[6] The trio also allegedly plotted to destroy the Nimbus Dam, a nearby fish hatchery, cellular telephone towers, and electrical power stations.^[7]

The case is based in part on electronic surveillance, as well as “information from a paid FBI informant who posed as an ELF sympathizer and infiltrated the group.”^[8] Some of the evidence that the government planned to use against Ms. Weiner was that she purchased two books—The Poor Man’s James Bond and The Survival Chemist--and that she purchased “several items to be used in making destructive devices, including canning jars, coffee filters, a mixing bowl, a hot plate, petroleum jelly, a gasoline can, bleach, an extension cord and battery testers.”^[9]

One interesting aspect of the case is that none of the individuals were charged under the Chapter 113B terrorism statutes, even though the statutes are broad enough to encapsulate the alleged offenses. Instead, the trio were charged under 18 U.S.C. § 844(n), which is in Chapter 40 (relating to explosive materials), and which states that any person who conspires to maliciously damage or destroy a government building or other property used in interstate commerce can be punished in the manner proscribed for a completed offense.

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[1] Chemical Attack on Sex Shop Called Domestic Terrorism, NBC 6 News, May 31, 2006.
[2] Christopher Lang, Explosion Prompts Large Response, Nutley Journal, May 24, 2006.
[3] Denny Walsh, Woman Makes Plea Deal in Eco-Terror Case, Sacramento Bee, May 31, 2006.
[4] Id.
[5] Id.
[6] See National Memorial Institute for the Prevention of Terrorism, Earth Liberation Front (ELF), Terrorism Knowledge Base, last updated May 10, 2006.
[7] Walsh, supra note 2.
[8] Id.
[9] Id.

US-EU Passenger List Transfers—Ruled Illegal

In May 2004, the United States and the European Union entered into an agreement in which the EU would supply the US with “34 items of information on passengers, including name, address and credit card details, within 15 minutes of departure to the United States.”^[1] That agreement, which was ostensibly about protecting against terrorism,^[2] has been ruled by the European Court of Justice [hereinafter ECJ] as “founded on an inappropriate legal basis.”^[3]

At the time the agreement was made, civil liberties groups were harshly critical and the European Parliament challenged the agreement, contending that “it had no legal basis and infringed fundamental rights.”^[4] The ECJ declined to rule on whether it infringed on privacy rights.^[5]

The decision has created a situation of serious legal limbo as trans-Atlantic carriers struggle to comply with two conflicting sets of laws.^[6] If airlines do not pass the relevant information on, they face fines of up to $6,000 per passenger and the loss of landing rights.^[7] EU nations now have until September 30 to come to some sort of legitimate legal footing regarding the agreement, and if they “fail to fix legal technicalities by that dare, airlines may have to change the way they collect and transfer data.”^[8]

The case came to the ECJ based partly on Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which states, in pertinent part, that every person in the EU has the right to respect for his privacy in personal matters, and that no public authority may interfere with the exercise of this right, except as is necessary and legal in the interests of national security or the like.^[9] The Parliament advanced four privacy-based pleas for annulment: ultra vires action, breach of the fundamental principles of Directive 95/46/EC (which protects individuals with regard to personal data processing), breach of fundamental rights, and breach of the principle of proportionality.^[10] The ECJ found that the allegation that the Directive was infringed “is well founded,”^[11] but that the other “limbs” of this argument need not be addressed.^[12]

The Parliament also advanced six legal-foundations-based pleas for annulment, namely that Article 95 EC was an incorrect legal basis for the Decision to share passenger data.^[13] The ECJ agreed, and the point is exceptionally nuanced. In essence, Article 95 EC requires that decision have “as its objective and subject-matter the establishment and functioning of the internal market by contributing to the removal of obstacles to the freedom to provide services”; there are no provisions designed to achieve such an objective.^[14] In short, the situation is much like what happened when the United States Federal Communications Commission attempted to require broadcasters to include “broadcast flags,” which courts ruled could not happen because Congress had not given the FCC such authority; before the FCC could require the “flags,” Congress would have to give the FCC the authority to require it.^[15] Likewise, before the Commission could require the sharing of passenger data, there needs to be an appropriate, non-infringing basis for doing so.

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[1] Air Passenger Data Transfers to US Illegal, EU Court Rules, Deutsche Welle, May 30, 2006.
[2] EU, U.S. Anti-Terror Accord on Airlines Struck Down, Bloomberg, May 30, 2006.
[3] DW, supra note 1.
[4] Id.
[5] Id.
[6] Bloomberg, supra note 2.
[7] Aoife White, EU Court Nixes Giving Air Data to U.S., AP (via Forbes), May 30, 2006.
[8] Id.
[9] Case 319/04, Parliament v. Commission, (2006) ¶ 3.
[10] Id. ¶ 50.
[11] Id. ¶ 60.
[12] Id. ¶ 61.
[13] Id. ¶ 62.
[14] Id. ¶¶ 63, 68-69.
[15] ALA v. FCC, 406 F.3d 689 (D.C. Cir. 2005).

McNabb in the News (5-28-06)

Senior Principal Douglas McNabb was quoted in The Sunday Independent regarding Frederick Russell and his extradition battle in Ireland.

Justice Peart gave the American 15 days to make arrangements for his return and ordered him to spend the intervening period in jail. These 'arrangements' will be a lot more serious than packing bags and booking flights, according to international extradition lawyer Douglas McNabb.

McNabb said: "he will be handcuffed at the waist, wrists and ankles before being flown home and held in a maximum lockdown prison environment until his trial. "Russell fled to Ireland after the car crash near his hometown in Pullman, in the east of Washington states. He was due to stand trial for 'vehicular homicide'—similar to death by dangerous driving—after the high-speed collision in June 2001.^[1]

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[1] Larissa Nolan, Fugitive Russell Set to Fight Extradition in Highest Court, Sunday Independent (Ireland), May 28, 2006.