War & Treaty Powers Applied to al-Shabab Fighters

Continuing the analysis of possible Art. I authority for applying the Material Support of Terrrorism statute to three Somali nationals fighting on behalf of al-Shabab in Somalia, with no identifiable link to the U.S. – other than being brought here for trial.

War Powers
The U.S. is not at war with Shabab. They are at war with our pals, Somalia’s notional Transitional government, in a civil war to which we are not a party. It is important to distinguish enemies in the “really hate” sense to war in the constructive or declarative sense.

True, Shabad has aligned itself with Al-Queda. Do the War Powers allow banning anyone in the world from fighting in a conflict to which the U.S. is not a party, but on behalf of a force sympathetic or allied with forces hostile to the U.S.? I don’t know, but my first reaction is that is a stretch. By such logic one could say that the ACA, by making healthier Americans, would make for better soldiers.

Note how this discussion recapitulates government’s move in Hamdan II: first it the argued “material support” rule was an exercise of Offenses Clause powers, then in last minute downgraded D&P to second-stringer, and brought out the general war powers for Art. I support.

With the Supreme Court having declared a limit on the Commerce Clause, the Treaty Power may remain the broadest, least defined governmental power. I do not think general treaties denouncing terrorism would be enough; they specifically do not do what the U.S. wants to do here – establish universal jurisdiction over the crime. Much easier would be to sign a quick executive agreement with the nominal government of part of Somalia, over which the U.S. presumably has a lot of control as it struggles between being nominal and dead.

To be sure, a non-treaty treaty with a non-governing government could be an illustration of the possible excesses of the Treaty power as broadly interpreted. But it might serve the government in a pinch.

Protective Jurisdiction
Assuming their is an Art. I basis, one might ask whether this application of the law would be consistent with international law. Lacking a universal jurisdiction crime, the next fall-back would be “protective jurisdiction.” Definitions of the protective principle require the acts to be “directed against the security of the state” or certain core interests (Restatement). Classic examples have a tight nexus: espionage, counterfeiting. Designation as a foreign terrorist, on the other hand, only requires a determination that the group “threatens” the national security of U.S. or its nationals. I don’t think “threaten” in this context requires any particular intent. Moreover, posing some danger to some U.S. nationals overseas would probably not qualify for the invocation of the protective principle either.


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