Tuesday, January 5, 2010

The Fingerpointing Begins

Spencer Ackerman at the Washington Independent has a few execellent posts on the fingerpointing concerning the Underpants Bomber. http://washingtonindependent.com/72386/state-department-for-all-practical-purposes-couldnt-have-revoked-abdulmutallabs-visa and http://washingtonindependent.com/72236/your-questions-about-abdulmutallabs-visa-answered

The State Department is blaming the National Counter Terrorism Center. http://washingtonindependent.com/72417/intelligence-official-info-from-state-department-on-abdulmutallab-was-very-thin

But, Ackerman swallows the DOS line that the visa could not be revoked, without warning Umar Farouk Abdulmutallab and giving him a chance to contest the revocation.

First, not quite true, DOS could have revoked the visa and just simply not informed Abdulmutallab. There is no appeal process other than to the Ambassador and no right, yet, to go to court to enforce a right to a visa. In any event, it is unlikely that even if Abdulmutallab was informed that it was going to be revoked, he would not have appealed. It would have been stupid to inform Abdulmutallab, as Al Queda would have just found another jihadi. But DOS commits technical violations of visa proceedures quite often, most of them in favor of the alien. There is no problem with a minor technicality favoring protecting America every now and then. In any event, the only contact info for Abdulmutallab was a London address, but he was hiding out in Yemen. Unlikely that any letter or phone call would have been forwarded to him. If I were the Consular FSO I would have just not sent the letter or just called the phone number on the application and not left a message.

What this event does show is how lazy and unconcerned Foreign Service Officers are. When informed that they had a potential terrorist with a visa, they did nothing except punt to the NCTC. This is symptomatic of FSOs, who just hate America and Americans. They think that terrorists are just killing Bush voters and they don't like Bush voters, conservatives, heterosexuals, Christians or gun owners. They are just a bunch of Janet Reno Napolitanos.

Then we have the NCTC. They apparently think an alien going on the no-fly list is an act reviewable by a court. Their explanation to Newsweek sounds like a claim that to be on the list you have to reach the level of a law enforcement officer detaining a suspect of a crime straight out of a Supreme Court decision, like Terry v. Ohio. http://blog.newsweek.com/blogs/declassified/archive/2009/12/28/what-u-s-intelligence-knew-about-the-underpants-bomber.aspx

The money quote:

"...Healy said, the government must have 'reasonable suspicion' that the person in question has been, or is about to be, involved in terrorism. As Healy put it: 'Reasonable suspicion requires "articulable" facts which, taken together with rational inferences, reasonably warrant a determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of, or related to, terrorism and terrorist activities, and is based on the totality of the circumstances. Mere guesses or inarticulate 'hunches' are not enough to constitute reasonable suspicion.'”

Sounds just like the Supremes on Terry v. Ohio, their decision that allowed police officers to continue to do their jobs that occasionally calls upon them toto stop and question suspicious persons in public. Not quite rocket science, but the Supremes got that one right, but made it needlessly complicated. The job of cops is to stop and question criminals. Sometimes in doing that they stop and question people who aren't criminals. It is not loss when a non-criminal has to spend a few minutes talking to a cop. Nothing in the Constitution prohibiting that. In the decision, the Supremes used words like articulable facts, reasonable suspicion and an officer's training and experience. It all boiled down to a smart agressive officer questioning suspicous types. Takes an attorney and a judge to make something so simple so murky, as well as a matter of Constitutional jurisprudence. http://en.wikipedia.org/wiki/Terry_v._Ohio Thanks John Terry, but no thanks to Earl Warren, even when you get one partially correct. Just as Terry complicated the simple, so Foreign Service Officers and attorneys are complicating the simple process of weeking out terrorists.

Well, they are all wrong on two counts. First the DOS could have revoked the visa plain and simple. Abdulmutallab's father's statement was enough to revoke the visa, much less the information from MI 5 that he was an Islamist with violent leanings. It did not need the permission of the NCTC, it has its own authority. The purpose of the NCTC is to aid the DOS is revoking visas, not restrict DOS authority.

And secondly, the information that DOS and NCTC had was sufficient articulable facts that Abdulmutallab was a possible terrorist. http://www.timesonline.co.uk/tol/news/uk/article6973954.ece

But more importantly, DOS never should have issued him a visa in the first place. He was an unemployed Nigerian. Non-immigrant visas are not supposed to be issued to aliens who do not have sufficient ties to their home country that make them likely to remain in the U.S. as an illegal alien. In any event, why did the U.S. Embassy in London issue a visa to a Nigerian. Aliens are supposed to apply in their home country unless they have a specific situation that prohibits them from applying there. Abdulmutallab was not a permanent resident of the U.K., but just an itinerant student, with no ties to the U.K. The visa should have been rejected out of hand and Abdulmutallab referred to the U.S. Embassy in Nigeria. And the U.S. Embassy in Nigeria should have rejected the visa application based on the fact that he had no ties to Nigeria; no wife, no children, no job, no property. Just being one of the many children of a rich guy is not enough to get a visa.

But, remember, in the end, there is no right to a visa and no appeal process for a denial or revokation. That is even stricter than an alien applying for admission or fighting removal, they have appeal rights. None for visa holders or applicants overseas.

So, there we have it. No one was doing their job and everyone is blaming someone else. Your tax dollars at work.

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