Crimes, War Crimes and the War on Terror

[jmm99]

No real surprise here, since requesting an en banc DC Circuit hearing (the alternative) was not likely to lead to a definitive answer. The Uighurs' Petition for Certiorari is discretionary (4 justices can allow it to be heard). The background is here (http://www.scotusblog.com/wp/first-sequel-to-boumediene-filed/).


First sequel to Boumediene filed
Monday, April 6th, 2009 9:29 am | Lyle Denniston

The first test of the Obama Administration’s detention policy to reach the Supreme Court was filed Monday, symbolically bearing the title Kiyemba v. Obama. It is a case that, at a minimum, could shape the future of 17 Chinese Muslim prisoners still at Guantanamo Bay although cleared for release, but its impact could reach far wider.

More broadly, however, what is at stake ultimately could be the fate of many if not most of the more than 240 prisoners still at Guantanamo, who might have to remain confined there or somewhere else even if the government decides that they are not dangerous enemies.

And, in that broad sense, the new case tests just what the Supreme Court meant last June, in Boumediene v. Bush, when it recognized a constitutional right for Guantanamo detainees to challenge their confinement, and decreed that release from that imprisonment is one remedy that was to remain available. .... [much longer analysis follows]

The detainees' Petition is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/kiyemba-petition-final-4-6-09.pdf); the DC Circuit opinion is here (http://pacer.cadc.uscourts.gov/docs/common/opinions/200902/08-5424-1165428.pdf).

As regular readers of this thread know, the Uighurs were determined (and the USG conceded) not to be subject to detention. The question then became what can the courts order with respect to their release. There seem to be four basic paths:

1. Order their release forthwith - without specifying to whom or to where. This has been Judge Leon's approach in his release orders.

2. Order their release into CONUS under conditions roughly equivalent to parole and house arrest - subject to DHS review of immigration status. This was Judge Urbina's approach (reversed by a majority of the DC Circuit in the present case).

3. Order nothing because we have no power to create a remedy. This is what the DC Circuit opinion boils down to.

4. Order their release into the hands of the DHS ("INS" branch) for custody and status determinations. This approach not been used - I don't know why, since the Uighur arguments have turned into immigration law arguments for the most part.

[jmm99]

The DoJ has responded to motions by a number of Uighur detainees, who requested that Bob Gates be held in "conditional" contempt of court because they have not been released. Here is Lyle's analysis (http://www.scotusblog.com/wp/a-new-use-of-uighurs-ruling/).


A new use of Uighurs ruling
Monday, April 6th, 2009 4:33 pm | Lyle Denniston

Within hours after a group of Guantanamo Bay detainees asked the Supreme Court to overturn a recent federal appeals court ruling against the prisoners’ rights [JMM prior post], the Justice Department made a new use of that ruling — this time, to try to head off a contempt-of-court claim against Defense Secretary Robert M. Gates. The development came in two filings in the D.C. Circuit Court, in cases involving five of the 17 Chinese Muslims (Uighurs) who remain at Guantanamo although no longer considered enemies by the Pentagon. .... [longer explanation follows]

The DoJ filings are here (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/us-response-parhat-contempt.pdf) and here (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/us-response-2-gates-contempt.pdf).

My crystal ball says these motions by the detainees are going nowhere; they will be denied and the DC Circuit will wait to see what SCOTUS decides.

[jmm99]

Another three-judge DC Circuit panel has decided a separate issue in another Kiyemba case (http://www.scotusblog.com/wp/another-legal-setback-for-detainees/#more-9168) - different from the Kiyemba case (though the same person) that is being appealed to SCOTUS, and reported above.


Another legal setback for detainees
Tuesday, April 7th, 2009 3:12 pm | Lyle Denniston

The D.C. Circuit Court, in a compromise decision that opens the courts somewhat further to detainees being held at Guantanamo Bay but limits what courts can do in response, ruled on Tuesday that the government has broad authority to transfer prisoners to other countries. The Executive Branch can do so, the Circuit Court indicated, without “second-guessing” by the courts, and without advance notice to detainees’ lawyers who wanted a chance to try to block a transfer they feared would lead to torture in another country.

The decision spoke in sweeping terms, but its practical impact may be limited to a situation where, because of conditions in the country where a transferee would go, torture was in prospect. The Circuit Court in essence said that detainees need not worry about that, because it is government policy — which it said the courts are obliged to respect — that it will not approve a transfer to any country where torture was a likelihood.

The decision left open a possible judicial check against a transfer if the government knew that a specific country was likely to torture a detainee, yet planned to send him there anyway. The Circuit Court did not make that a binding exception to its decision, simply saying it was not faced with that circumstance as of now so it did not decide it.

The opinion is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/kiyemba-ii-4-7-09.pdf) - three separate opinions on what the law should be ;)

This case will undoubtedly go to SCOTUS - and also the DC District decision re: the Bagram detainees made by Judge Bates (although that will have to go to the DC Circuit first).

This case deals primarily with the USG's power to transfer prisoners - and the extent of review allowed to the courts. While not an extradition or rendition case as such, the law eventually selected by SCOTUS here will affect those situations as well.

Slowly but surely, the courts are addressing cases where there are real, live factual records (evidence presented and facts found). The scope of review is therefor becoming more definite - even though the judges are splitting as to their conclusions from those facts.

[jmm99]

as the Uighur cases proceed - an unsurprisng single sentence ruling (http://www.scotusblog.com/wp/gates-spared-contempt-finding/).


Gates spared contempt finding
Friday, April 10th, 2009 7:21 pm | Lyle Denniston

The D.C. Circuit Court, relying on its recent ruling that is now being challenged in the Supreme Court, refused on Friday to hold Defense Secretary Robert M. Gates in contempt of court for failing to bring about the release of 17 Guantanamo Bay detainees. In a one-sentence order (found here (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/ca-order-gates-contempt-4-10-09.pdf)), the Circuit Court merely cited its Feb. 18 ruling in Kiyemba v. Obama barring the release into the U.S. of the 17, Chinese nationals who are members of the persecuted Uighur sect.

The Kiyemba ruling is now before the Supreme Court in docket 08-1234. As of now, the Justice Department’s response is due May 7. ...

I think this ends the Uighur cases in the DC District and Circuit courts. All that remains is for the detainees to appeal the DC Circuit decision discussed in my prior post above.

SCOTUS will then have the opportunity not only to refine its prior decisions re: the scope of habeas, but also to define the limits of the habeas remedies if habeas is granted. For all the hell raised about habeas by pundits right and left, no one has yet to be released because of habeas. All releases have been by Executive decisions (Bush II and Obama).

[jmm99]

The DoJ has moved Judge Bates to stay his orders regarding the Bagram detainees (http://www.scotusblog.com/wp/us-resists-rights-at-bagram/), so that DoJ can file an interlocutory appeal to the DC Circuit - and then, by someone, to SCOTUS.


U.S. resists rights at Bagram
Saturday, April 11th, 2009 9:20 am | Lyle Denniston
....
The Justice Department, saying top officials have authorized a swift appeal, asked a federal District Court judge on Friday to put on hold a ruling that would extend some constitutional rights to detainees being held by the U.S. military at Bagram air base in Afghanistan.

At stake, the Department said in a new filing in U.S. District Court, is whether the constitutional right to challenge detention should be extended “for the first time to a theater of war on foreign territory over which the United States exercises neither de jure nor de facto sovereignty.” The Department insisted that the Bagram detention site was not being used just to put prisoners beyond the reach of U.S. courts.

It sought an order by District Judge John D. Bates to certify the issue to the D.C. Circuit Court even though the Bagram detainees’ case is still in a pre-trial stage. “If the Court of Appeals determines that these [detainees] cannot invoke the constitutional privilege of the writ of habeas corpus, then this Court would have no jurisdiction to proceed and litgation of these habeas cases will end,” the filing said.

The Department also asked Judge Bates to stay his ruling while the appeal goes forward, stopping all proceedings in his Court. It said that U.S. Solicitor General Elena Kagan authorized the plea “to seek an expedited appeal.”

“If this Court were to proceed with these cases during the pendency of the appeal,” the motion argued, “the Court would impose serious practical burdens on, and potential harm to, the Government and its efforts to prosecute the war in Afghanistan.” ....

The DoJ's motion is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/us-bagram-appeal-filling-4-10-09.pdf); and Lyle's discussion of Judge Bates' orders (already reported above in this thread) is here (http://www.scotusblog.com/wp/major-extension-of-boumediene/).

Allow me to dissent from the DoJ's position - for reasons having nothing to do with the merits of Judge Bates' opinions (I have already said I think he went a "bridge too far"), or the merits of the detainees' cases (which have not been decided at all).

1. The merits hearings on each of these four cases would consume several days - and would largely consist of documentary evidence already in place. That estimate is based on Judge Leon's handling of a number of such cases.

2. The issue in each case, for the merits hearings, is simply whether the detainee was an "enemy combatant" (old standard) or a "person a member of, or a substantial supporter of, AQ-Taliban or an associated group" (new standard).

3. Thus, merits decisions in all four cases could be had in a month or two - based on cases already discussed, the detainees would not be immediately released no matter what the merits decisions might be.

4. The cases could then be appealed on the basis of a full factual record, including the sealed classified evidence.

5. The SCOTUS detainee cases so far decided have been hampered by the absence of a full factual record - and, hence, have been less well defined than they should have been.

All that having been said, the courts have regularly issued stay orders in these cases - thereby prolonging the legal agony and uncertainty. So, I would expect either Judge Bates or the DC Circuit to issue stay orders.

[jmm99]

Several habeas cases before Judge Walton (http://www.scotusblog.com/wp/analysis-diminishing-geneva-rights/) include claims that go beyond the immediate issuance or not of purely habeas relief (whatever that turns out to be - as discussed in prior posts. Those claims go to the conditions of confinement - and the impact (if any) of the Geneva Conventions on those conditions of confinement.


Analysis: Diminishing “Geneva rights”?
Friday, April 10th, 2009 9:33 pm | Lyle Denniston

Analysis

From early in the U.S. government’s detention of individuals rounded up in the “war on terrorism,” the prisoners have been attempting to gain the protection of a major human rights treaty: the series of agreements known as the Geneva Conventions – a part of international law for 60 years. The Conventions bar the use of torture, abuse, humiliation and acts of indignity against those held in captivity during wartime.

Lawyers in the Bush Administration considered them “obsolete” after the terrorist attacks of Sept. 11, 2001. President Obama, on taking office in January, issued an Executive Order (No. 13,491) decreeing that every person “detained in any armed conflict” is entitled to the Geneva protections.

Detainees’ lawyers, however, would like to solidy Geneva rights so that they did not depend only upon presidential order. Instead, they want the federal courts to have a role, too, with the authority to directly order the U.S. government to respect Geneva rights at Guantanamo. U.S. District Judge Reggie B. Walton is now considering that plea in a series of cases, including Bostan v. Obama (District Court docket 05-883). ...

The DoJ's Opposition (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/genevaopposition.pdf) makes several bullet points (with of course much longer discussion under each):


I. Habeas cannot be used to challenge conditions of confinement.

II. The Military Commissions Act removes jurisdiction to entertain the substance of petitioners’ claims.

II.[sic! III.] The Geneva Conventions are not privately enforceable.

The DoJ's most telling point, however, is that the DC courts have ruled against detainees on the same type of claim:


(brief, p.8)
As the Court of Appeals and four Judges of this Court have concluded, however, Section 2241(e)(2)’s removal of jurisdiction remains intact after Boumediene. See Kiyemba v. Obama, No. 05-5487, --- F.3d ----, 2009 WL 910997, at *2 (D.C. Cir. Apr. 7, 2009); Al-Adahi v. Obama, No. 08-280, 2009 U.S. Dist. LEXIS at **10-16 (D.D.C. Feb. 10, 2009) (Kessler, J.); Khadr v. Bush, 587 F. Supp. 2d 225, 234-37 (D.D.C. 2008) (Bates, J.); In re Guantanamo Bay Litig., 577 F. Supp. 2d 312, 313-14 (D.D.C. 2008) (Hogan, J.); In re Guantanamo Bay Litig., 570 F. Supp. 2d 13, 17-18 (D.D.C. 2008) (Urbina, J.).

Another weakness in the detainees' claims (those based on conditions of confinement) is that they seek to apply the whole of GC Convention III (the PW/POW convention) to the Gitmo detainees. The applicable GC rights are those under Common Article 3 (contained in all four GCs), as the most recent Executive Order makes clear:


(brief, p.2-3)
Indeed, just two days after taking office, the President issued an Executive Order addressing the treatment of persons in United States custody “to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions.” Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan 22, 2009) Introduction. This Executive Order provides that:

Consistent with the requirements of . . . Common Article 3 [of the Geneva Conventions] . . . individuals detained in any armed conflict . . . shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.

Exec. Order No. 13,491 at §3(a); see also id. at §3(c).

The DoJ's position gained traction from the very recent decision in a detainee case from an armed conflict of long ago - Noriega (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/11th-ca-ruling-noriega-4-8-09.pdf). This decision should be of interest to JTF and others who were involved in his capture.

Here is the bottom line:


(opinion, p.2)
Appellant General Manuel Antonio Noriega appeals the decision of the United States District Court for the Southern District of Florida denying his petition for writ of habeas corpus. The district court determined that the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (“Third Geneva Convention” or “Convention”), does not foreclose the extradition of prisoners of war and that the United States had sufficiently complied with its obligations under the Convention. We affirm and hold that § 5 of the Military Commissions Act of 2006 (“MCA”), Pub. L. No. 109-366, § 5(a), 120 Stat. 2600, 2631, note following 28 U.S.C. § 2241 (2006), precludes Noriega from invoking the Geneva Convention as a source of rights in a habeas proceeding and therefore deny Noriega’s habeas petition. We also conclude that extradition would not violate the Convention.

Noriega was designated a prisoner of war and accorded the benefits conferred on prisoners of war by the Third Geneva Convention.


(opinion p.3, fn1)
The district court determined that Noriega was a prisoner of war under the Third Geneva Convention in response to Noriega’s concerns about the type of care he would receive while in custody. United States v. Noriega, 808 F. Supp. 791, 793–96 (S.D. Fla. 1992) (Hoeveler, J.) (“Noriega I”). Specifically, the district court found that the hostilities in Panama constituted an “armed conflict” within the meaning of article 2, that Noriega was a member of the armed forces of a party to the conflict under article 4, and that the district court was a “competent tribunal” to determine his prisoner of war status under article 5 of the Third Geneva Convention. Id. This determination was not appealed.

Note that Noriega was also convicted of crimes: In April 1992, Noriega was convicted for RICO and RICO conspiracy (18 U.S.C. § 1962(c) and (d)), conspiracy to import and distribute cocaine (21 U.S.C. § 963), distribution of cocaine (21 U.S.C. § 959), manufacture of cocaine (21 U.S.C. § 959), conspiracy to manufacture, distribute, and import cocaine (21 U.S.C. § 963), and unlawful travel to promote a business enterprise involving cocaine (18 U.S.C. § 1952(a)(3)).

So, this 11th Circuit case also reinforces the point that I have been making that detention under the GCs is one thing; and that prosecutions under domestic criminal law are quite another thing. What is interesting is that Noriega's status was determined under the GCs and continues as such, while the length of his confinement was determined by the criminal sentences (all running concurrently).

Since the armed conflict with Panama ended long ago - with long term success as JTF has recently posted, his term of confinement as a POW would have ended long ago.

[jmm99]

Three weeks ago, I briefly noted (http://council.smallwarsjournal.com/showthread.php?p=68483&highlight=danner#post68483) (#232) an article by Mark Danner, in the NY Review of Books, re: the Red Cross Report on High Value Detainees held in CIA detention.

Mr Danner has followed up with a longer article (http://www.markdanner.com/articles/show/153), which links to the ICRC Report (http://www.nybooks.com/icrc-report.pdf).


The Red Cross Torture Report: What it Means
By Mark Danner
.... [jumping down to his conclusion]
There is a sense in which our society is finally posing that “what should we do” question. That it is doing so only now, after the fact, is a tragedy for the country—and becomes even more damaging as the debate is carried on largely by means of politically driven assertions and leaks. For even as the practice of torture by Americans has withered and died, its potency as a political issue has grown. The issue could not be more important, for it cuts to the basic question of who we are as Americans, and whether our laws and ideals truly guide us in our actions or serve, instead, as a kind of national decoration to be discarded in times of danger. The only way to confront the political power of the issue, and prevent the reappearance of the practice itself, is to take a hard look at the true “empirical evidence of the last five years, hard years,” and speak out, clearly and credibly, about what that story really tells.

Read with some caution and check Mr Danner's references before accepting whole cloth.

The list of the 14 detainees (including KSM) is at p.6 of the report.

[Ken White]

Unduly repetitious and pretentious IMO. His final paragraph sums up the effort:
"For even as the practice of torture by Americans has withered and died, its potency as a political issue has grown. The issue could not be more important, for it cuts to the basic question of who we are as Americans, and whether our laws and ideals truly guide us in our actions or serve, instead, as a kind of national decoration to be discarded in times of danger. The only way to confront the political power of the issue, and prevent the reappearance of the practice itself, is to take a hard look at the true “empirical evidence of the last five years, hard years,” and speak out, clearly and credibly, about what that story really tells."

I would suggest that potency as a political issue is derived mostly from the fact that the writer -- and many in the political arena -- have read little and have no sense of history. We, like every other nation, have at time betrayed our ideals. That, I believe is called human fallibility. It happens. Again and again and again...

I disagree with him on the importance of the issue -- who we are as Americans is simply answered: About 300 Million people from varying backgrounds and of different educational attainment who are inclined to be rather individualistic and defy categorization. Our laws and ideal will guide as so long as they mesh with our individual goals, desires, capabilities and are not deflected by external pressures. Nations, as separate units and collectively as peoples often react along the same lines. Everyone, every nation gets deflected on occasion, often for selfish and not smart reasons.

His polemic seems foolishly to envision a unified, coherent mass of like thinking folks who are "Americans." That, frankly is ridiculous. There are probably as many who cheer waterboarding as there who think it torture -- and neither side has the ability to say with no reclama that the other is wrong; they can merely state their opinion and they cannot and should not be able to enforce that opinion on others. This, as he obviously forgets, is, after all, America.

In this case, it was not so much a 'decoration' to be discarded in a time of danger nearly so much as it was a pragmatic reaction to a minor threat. An overreaction, true -- but not evil in intent and one that got corrected (as our system was designed to do). In that it mirrored actions taken many time before by this same Nation in such circumstances. Actions that may or may nor in future again occur. Who can say?

One can say one hopes not -- others can say why not. Still others would fall in the 'Choice not stated' category -- and that is as it should be. fortunately, we have a Republic and that prevents long term abuses by any faction who occupy a temporary majority. It would be worthwhile for those with such glaring ignorance or elision of our past and volatile, extremely short (apparently) memories to realize that such things occur due to calculational errors on the part of humans and that such errors are not restricted to a specific ideology or political leaning. Slippery slopes can allow slides in various directions...

His fatuous comment that the issue possesses political power has some validity but only because some wish that to be true -- not for the good of the US but for partisan or ideological reasons. One wonders if they also wish to go back to Roosevelt, Wilson, Lincoln et. al. and blather -- or is it bleat -- about their transgressions.

As for the very, very silly "prevent the reappearance of the practice itself', good luck with that immature and rather childish dream...

(All the above from me proving that one need not write for the NY Review of Books to be long winded... ;) )

[jmm99]

but then I am not known for brevity. A rather reasoned response (IMO).

Thought I'd highlight some features of the ICRC Report (the .pdf is set up not to allow cut & paste):

p.5 - The 14 detainees were interviewed in two sessions: 6-11 Oct & 4-14 Dec 2006. The report is based on what they alleged their treatment to have been. The ICRC was impressed by the consistency of their narratives. There are, of course, reasons other than factual accuracy that account for consistency in narratives.

pp.23-25 - Legal aspects. The report (in its footnotes) manages to cite virtually every convention and legal theory that supports its interpretation and its implementation requirements - whether accepted by the US or not. Long discussion here of these "authorities" would not be presently fruitful. Suffice to say that the ICRC and the US agree that Common Article 3 of the GCs applies to these detainees. And, I will add, the US accepts a number of US statutes that interpret and implement CA 3.

pp.29-38 - Annex I reports the verbatim (well sort of verbatim) statements of three detainees - KSM is the third. "Sort of verbatim" because these statements are obviously (to a guy who has spent more than a few hours "woodshedding" witnesses), the finished end-product of a process. It would be interesting if the ICRC has complete interview transcripts or videotapes of its interviews with the detainees.

Anyway, read them; draw your own conclusions - I report, you decide. They involve more questions of fact and perception than law.

[jmm99]

AG Holder announced (http://www.msnbc.msn.com/id/30249847/) that CIA employees would not be prosecuted re: alleged torture claims.


CIA employees won't be tried for waterboarding
Holder gives first definitive assurance officials are legally in the clear
...
WASHINGTON - The Obama administration on Thursday informed CIA officials who used waterboarding and other harsh interrogation tactics on terror suspects that they will not be prosecuted.

Even before President Barack Obama took office in January, aides signaled his administration was not likely to bring criminal charges against CIA employees for their roles in the secret, coercive terrorist interrogation program. It had been deemed legal at the time through opinions issued by the Justice Department under the Bush administration.

But the statement issued Thursday by Attorney General Eric Holder, the nation's chief law enforcement officer, is the first definitive assurance that those CIA officials are in the clear, as long as their actions were in line with the legal advice at the time. ...

The DoJ also released four memoes re: interrogation. The three at MSNBC are from 2002 (http://msnbcmedia.msn.com/i/msnbc/sections/news/090416_Torture_Memo1.pdf), 2005 (http://msnbcmedia.msn.com/i/msnbc/sections/news/090416_Torture_Memo2.pdf) & 2005 (http://msnbcmedia.msn.com/i/msnbc/sections/news/090416_Torture_Memo3.pdf).

[jmm99]

A couple of weeks ago, we saw (post #246) the first Gitmo informer ordered released. Now we have the opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv0889-136) in somewhat redacted form, with the detainee's release (http://www.scotusblog.com/wp/judge-no-threat-no-detention/#more-9254) in place (a new use for RIP):


Judge: No threat, no detention
Friday, April 17th, 2009 4:11 pm | Lyle Denniston
...
A federal judge, explaining her reasons for ordering in March the release of a Guantanamo Bay detainee, ruled that the U.S. government can no longer hold in captivity an individual who does not now pose a threat of terrorist activity. U.S. District Judge Ellen Segal Huvelle rejected a Justice Department claim that it can continue to hold detainees as long as the “war on terrorism” goes on overseas, whether or not a given individual poses a threat of returning to a battlefield.
....
The decision involves one of the most controversial detainees still at Guantanamo — Yasin Muhammed Basardh, a 33-year-old Yemeni who has repeatedly made accusations against other detainees and has cooperated extensively with U.S. military officials in deciding whether to hold other detainees. Those activities, Judge Huvelle noted, have led to repeated physical attacks and even death threats from other prisoners.
....
... her release order, originally issued without explanation on March 31 (see this earlier post), was based upon her legal conclusion that detention authority stops when the government has decided that an individual is not likely to return to a battlefield or to activity with the terrorist networks of the Taliban or Al Qaeda. That was her interpretation of the resolution Congress passed to allow the U.S. to respond to the terrorist attacks of Sept. 11, 2001 — the Authorization for the Use of Military Force.
....
She summed up: “The AUMF does not authorize the detention of individuals beyond that which is necessary to prevent those individuals fraom rejoining the battle, and it certainly cannot be read to authorize detention where its purpose can no longer be attained.”
....
Although Huvelle ordered Basardh released “forthwith,” the order actually only directed that the government “take all necessary and appropriate diplomatic steps to facilitate” his release. She said she had no power, because of a recent D.C. Circuit Court ruling, to order Basardh’s release into the U.S. or to order his transfer to “a safe haven.”

This decision seems correct on the law; and, such were its facts, that a separation of powers issue was not present. Such an issue would arise if the Executive Branch determined that the detainee would return to AQ, etc.; and the judge determined the detainee would not return to AQ, etc.

In this case, the DoJ expressed no opinion on what the detainee would do (opinion, p.10, n.11). In effect, its position was something of a "plea bargain" in reverse - we don't contest that lesser charge, your Honor.

What will happen to Basardh ? Probably, he's toast if released outside of protection - probably safer at Gitmo. Does the base need a grass cutter ?

[jmm99]

District Judge Reggie B. Walton has issued a 48-page opinion (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/walton-ec-ruling-4-22-09.pdf), which is more in the nature of guidance for merits hearings in the 14 detainee cases before him. He largely accepted the DoJ's refined definition (http://www.scotusblog.com/wp/us-wins-mostly-on-detention-power/#more-9305) of detainee status, with further refinements by the judge.

Since the opinion is a long one, it probably would be best for most readers to start with Lyle's analysis:


U.S. wins — mostly — on detention power
Thursday, April 23rd, 2009 11:32 am | Lyle Denniston
.....
The Supreme Court has not yet defined explicitly the president’s power to detain terrorism suspects, even after five years of deciding detention cases. A federal judge on Wednesday began a new effort to define that authority. The result was that the Obama Administration’s position — a “refined” version of the Bush Administration approach – won its first full-scale test in a federal court.

At the same time, however, the judge — U.S. District Judge Reggie B. Walton — issued a warning that he would not allow detention authority to creep beyond some “limiting principles’ he laid down.
....
Elaborating on his definition, Walton said it would mean that individuals could be detained if they were “members of the ‘armed forces’ of an enemy organization” when captured. “Amed forces,” he said, would read quite broadly to include any group that was “organized” under some kind of commander who was in control, and engaged in some kind of “combat operations.”

“Only persons who receive and execute orders from the enemy’s command structure,” the judge said, could be treated as members of the armed forces subject to detention after capture. “The key question,” he declared, “is whether an individual receives and executes orders from the enemy force’s combat apparatus….The individual must have some sort of ’structured’ role in the ‘hierarchy’ of the enemy force.”

That could include, the judge said, those who provided housing, feeding or transporting “al-Qaeda fighters,” such as a cook who was a part of the armed forces but was temporarily assigned only a non-combat role.

Thus, he added, “civilians who may have some tangential connections to such organizations” could not be detained. “Sympathizers, propagandists, and financiers who have no involvement” with the command structure, even though “members of the enemy organization in an abstract sense,” could not be detained unless they took “a direct part in hostilities.”

The bottom line of Judge Walton's opionion is his refined definition of detainee status pursuant to the post-9/11 AUMF:


(opinion, p.48)
With that understanding, the Court concludes as a matter of law that, in addition to the authority conferred upon him by the plain language of the AUMF, the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms “substantially supported” and “part of” are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture. [21]

[21] The government also asserts that the President may detain individuals who substantially support “forces” that are “associated” with the Taliban and al-Qaeda. Gov’t’s Mem. at 2. The meaning of the term “associated forces,” and the propriety of detaining members of such forces under the laws of war, were not argued in any detail by the parties and may not concern many of the petitioners with habeas corpus petitions pending before this member of the Court. The issue must therefore await resolution at a later date if that becomes necessary.

The "understanding", referred to in the first sentence quoted above is, is to the preceding pages of the judge's opinion !

My analysis follows in the next part

[jmm99]

--------------------------------
JMM Analysis

Judge Walton's opinion is heavily based on Common Article 3 of the 1949 GCs, Additional Protocol II to the 1949 GCs, and the commentaries of the International Committee of the Red Cross. That is not necessarily bad, since his focus is on non-international conflicts (those involving one or more non-state actors); and, at one point, refers to the situation as really being a trans-national (cross-borders) situation. So, while the opionion does not as such refer to TVNSAs (Transnational VIolent Non-State Actors), it is consistent with that concept.

The opinion is logically divided into several parts:

pp.6-19 - Historical account of the DC Circuit and SCOTUS detainee cases; and the shift in definitions between the Bush II and Obama administrations.

pp.20-34 - Refutation of some specific arguments made by the detainees - in essence, they asked the court to adopt a very restrictive standard allowing detention only of those who were actually armed at the time of capture. One detainee argued in effect that all AQ-Taliban should be regarded as civilians and thus entitled to the full civilian protections of GC IV. All of those arguments were rejected by the judge.

pp.34-38 - Recognition that the Bush II DoJ's definition was, in a sense, defective in focusing on the concept of "enemy combatants"; thereby allowing arguments to limit the scope of the detention power.

pp.39-48 - Setting the limits under the Obama DoJ's definition.

The discussion at pp.34-35 is essential to understanding Judge Walton's conclusions. The detainees argued that 'combatants" may be properly detained, but "non-combatants" may not - relying on the interplay between GC III (PW/POW provisions - applying to combatants) and GC IV (civilian provisions). The judge noted that the argument made sense under the Bush II standard, but not under the new Obama standard based on Common Article 3:


(opinion pp.35-37)
Because the members of al-Qaeda and similar organizations do not qualify as “combatants” under Article 4, the petitioners contend that the only individuals subject to detention in this non-international armed conflict are “civilians who give up the protections of civilian status by participating actively and directly in hostilities as part of an organized armed force.” Pet’rs’ Mem. at 5. The petitioners defend this “‘direct participation in hostilities’ standard” as “a critical distinction in the law of armed conflict,” for whereas “combatants” within the meaning of Article 4 of the Third Geneva Convention “may be deliberately targeted with deadly force, . . . civilians who are not participating in hostilities may not.” Id. at 6.

The petitioners’ reliance on the standards governing international armed conflict is understandable given the government’s longstanding justification of its detention of the petitioners on the grounds that they were “enemy combatants.” This term has meaning under the Geneva Conventions only insofar as it is construed as a subset of “prisoner of war” status, which the Third Geneva Convention defines at length. [citations & comments omitted]

At least for those petitioners detained due to their associations with terrorist organizations like al-Qaeda, there is little question that such individuals fail to satisfy these requirements. While the term “armed forces” is defined broadly in the Third Geneva Convention, “the non-recognized government or authority” sponsoring the putative “armed forces” in question “must represent, or must claim to represent, a subject of international law recognized as such by the other Party to the conflict,” ICRC Additional Protocols Commentary, supra, at 508, and must be “indissolubly bound” by the rules that govern international warfare, id. at 513. “Anyone who participates directly in hostilities without being subordinate to an organized movement” that “enforc[es] compliance with these rules[] is a civilian.” Id. at 514.

Thus, under the combatant/civilian distinction formerly drawn by the government, the petitioners would appear to fall under the rubric of “civilians.” [citations & comments omitted] And as civilians, the petitioners would not be subject to military force “unless and for such time as they [took] a direct part in hostilities.” Id., art. 51.1, 51.3. In its most restrictive interpretation, this standard would require “a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity [took] place.” ICRC Additional Protocols Commentary, supra, at 516. [15]

[15] It is far from clear that the definition of “direct participation” set forth in the commentary to Additional Protocol I is correct. [long comment by court omitted].

But the government no longer seeks to detain the petitioners on the theory that they are “enemy combatants,” and neither Common Article 3, Additional Protocol II, nor the respective commentaries on these treaties by the International Committee of the Red Cross make any reference whatsoever to the term “combatant.” “The reason for the absence of combatant status in non-international armed conflicts is obvious: states are not prepared to grant their own citizens, and even less others who might engage in fighting on behalf of a non-state group, the right to do so.” J.K. Kleffner, From “Belligerents” to “Fighters” and Civilians Directly Participating in Hostilities—on the Principle of Distinction in Non-International Armed Conflicts One Hundred Years After the Second Hague Peace Conference, 54 Netherlands Int’l L. Rev. 315, 322 (2007). Thus, whereas the Geneva Conventions rigorously protect individuals who participate in hostilities in the international context, they are silent with respect to individuals who engage in intranational (or, in this case, transnational) combat.

The petitioners evidently interpret this lack of protection for “combatants” in non-international armed conflicts to mean that every individual associated with the enemy to any degree in such a conflict must be treated as a civilian. As with Khan’s argument regarding the source of the President’s ability to detain individuals in armed conflicts in general, this assumption rests on the notion that the Geneva Conventions must specifically enable its signatories to act in a specific manner for a signatory to have the authority necessary to take such action. See supra, part II.A. And, as with Khan’s prior argument, this notion gets things exactly backwards. The Geneva Conventions restrict the conduct of the President in armed conflicts; they do not enable it. And the absence of any language in Common Article 3 and Additional Protocol II regarding prisoners of war or combatants means only that no one fighting on behalf of an enemy force in a non-international armed conflict can lay claim to the protections of such status, not that every signatory to the Geneva Conventions must treat the members of an enemy force in a civil war or transnational conflict as civilians regardless of how important the members in question might be to the command and control of the enemy force or how well organized and coordinated that force might be.

I would find in Common Article 2, the beginning of the flow chart into Common Article 3. The DoJ did not argue CA 2. The result is the same - CA 3 is the source of any restrictions on detention power and the balance of GC III and GC IV do not apply.

The remainder of the opinion (pp.39-48) leads to the concluding definition (p.48); and includes Judge Walton's limiting factors. It is a Common Article 3 analysis, with some added rules from the laws of war.

I'll cover those in the next part, since it is the crux of the decision.

[jmm99]

The primary authorities relied on by the judge are Common Article 3 and a portion of Additional Protocol II (neither signed nor ratitified by the US; but accepted by the US as to its "core principles"). The first part is a technical construction of Common Article 3:


(opinion, pp.39-40)
The text of Common Article 3 impliedly supports this conclusion. The article provides in pertinent part that “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause” must be treated “humanely.” Third Geneva Convention art. 3(1) (emphasis added). This restriction on the conduct of the state engaging in a non-international armed conflict carries with it two distinct implications. The first implication, correctly identified by the government, is that “[S]tates engaged in such conflicts can detain those who are part of [enemy] armed groups.” Gov’t’s Mem. at 9. Otherwise, there would be no “[p]ersons . . . placed hors de combat by . . . detention” to treat “humanely.”

Second, the fact that “members of armed forces who have laid down their arms and those placed hors de combat” are not “taking [an] active part in the hostilities” necessarily implies that “members of armed forces” who have not surrendered or been incapacitated are “taking [an] active part in the hostilities” simply by virtue of their membership in those armed forces. And the fact that the category of “[p]ersons taking no active part in the hostilities” only “includ[es]” surrendered or incapacitated members of an armed force necessarily suggests that there is a category of persons in non-international armed conflicts that, by virtue of their lack of membership in the armed forces of the enemy, are not “taking [an] active part in hostilities.” This equivalency in treatment reflects the “fundamental principle of the law of war that those who do not participate in the hostilities [should] not be attacked,” in which respect “harmless civilians and soldiers hors de combat are a priori on the same footing.” ICRC Additional Protocols Commentary, supra, at 482.

Common Article 3 therefore implicitly bifurcates individuals associated in some sense with the enemy in a non-international armed conflict into two groups: “members of armed forces” who necessarily always actively participate in hostilities; i.e., would-be combatants, and individuals who are not a part of the enemy’s armed forces and therefore do not actively participate in hostilities; i.e., civilians and soldiers rendered hors de combat. It is not surprising to discover, then, that the International Committee of the Red Cross makes just this sort of distinction in its commentaries to the Third and Fourth Geneva Conventions. It focuses its commentary on Article 3, sub-paragraph (1) of the Third Geneva Convention on “prisoners of war, who are covered by the Third Convention,” ICRC Third Geneva Convention Commentary, supra, at 38, while restricting the focus of its commentary on the identical provision in the Fourth Geneva Convention to “points which more particularly concern persons protected under the Fourth Convention,” which governs the treatment of civilians, International Committee of the Red Cross, Commentary on the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, at 38 (Pictet et al. eds., 1958).

The next arrow fitted to Judge Walton's bow is construction of Additional Protocol II, and tying it to Common Article 3:


(opinion, pp.40-43)
This bifurcation is also apparent in Additional Protocol II. Part IV of that protocol “is aimed at developing the legal protection to which the civilian population is entitled,” ICRC Additional Protocols Commentary, supra, at 1443, and to that end Article 13 of the protocol provides that “[t]he civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations,” Additional Protocol II, art. 13.1, and that “[t]he civilian population as such, as well as individual civilians, shall not be the object of attack . . . unless and for such time as they take a direct part in hostilities,” id., art. 13.2-13.3. Of course, it would be odd for the drafters of Additional Protocol II to devote a portion of the convention to protecting a discrete group of individuals labeled “civilians” if every member of the enemy in a non-international armed conflict is a civilian, as the petitioners suggest. It would also cripple a state’s capability to effectively combat the enemy force in a non-international armed conflict if the members of that enemy force, including those members in a command position, could only be detained whenever there was “a sufficient causal relationship between the [member’s] act of participation and its immediate consequences,” as the International Committee of the Red Cross defines the term “direct part in hostilities” for purposes of Article 13.3. ICRC Additional Protocols Commentary, supra, at 1453. But, lest there be any confusion on the matter, the Committee itself explicitly notes that, unlike civilians, “[t]hose who belong to armed forces or armed groups may be attacked at any time.” Id.

In short, Common Article 3, Additional Protocol II, and the commentaries of the International Committee of the Red Cross all contemplate a division in the treatment of the members of an enemy’s “armed forces” and civilians. Unless they surrender or are incapacitated, members of the enemy’s armed forces are always “taking [an] active part in hostilities,” Third Geneva Convention, art. 3(1), and therefore “may be attacked” and, incident to that attack, detained “at any time,” ICRC Additional Protocols Commentary, supra, at 1453. “[C]ivilians who do not participate in hostilities,” on the other hand, “should be spared” those consequences. Id. at 1443.

Interpreting Common Article 3 and Additional Protocol II in this manner comports with customary international law. As the International Committee of the Red Cross noted in its recent study of that body of law, “[s]tate practice establishes” the rule distinguishing civilians from fighters “as a norm of customary international law applicable in both international and non-international armed conflicts.” 1 Int’l Comm. of the Red Cross, Customary International Humanitarian Law 3 (Jean-Marie Henckaerts & Louise Doswald-Beck, eds., Cambridge Univ. Press 2005) (the “ICRC Study”). Several states have either explicitly or impliedly required that their armed forces distinguish between fighters and civilians, see id. at 6 (listing states with military manuals, legislation, or official statements imposing this rule), “to the effect that only the former may be targeted,” id. And the International Committee of the Red Cross “has called on parties to both international and non-international armed conflicts to respect the distinction between [fighters] and civilians.” Id. at 8.16

This result is also consonant with the intended purpose of Common Article 3. While its scope may encompass the transnational conflict at issue here, the article was drafted “to aid the victims of civil wars and internal conflicts.” ICRC Third Geneva Convention Commentary, supra, at 28. As counsel for the government pointed out at oral argument on this issue, permitting a State to detain members of the armed forces of a non-state entity in a non-international armed conflict only when those members directly participated in hostilities, at least as that term is defined by the petitioners, “would encourage . . . armed groups to try to blend into the civilian population, which then necessarily subjects the civilian population to increased danger.” Hr’g Tr. 63:11-14, Mar. 23, 2009. And the practical absurdity of the petitioners’ approach is evident when one considers the impact such a standard would have had on the “civil wars and internal conflicts” experienced by this nation in the past.

The Court therefore rejects the petitioners’ argument that the laws of war permit a state to detain only individuals who “directly participate” in hostilities in non-international armed conflicts. Common Article 3 is not a suicide pact; it does not provide a free pass for the members of an enemy’s armed forces to go to and fro as they please so long as, for example, shots are not fired, bombs are not exploded, and planes are not hijacked.

Consistent with Common Article 3 and Additional Protocol II, the President may detain anyone who is a member of the “armed forces” of an organization that “he determines planned, authorized, committed, or aided” the 9/11 attacks, as well as any member of the “armed forces” of an organization harboring the members of such an organization. Pub. L. No. 107-40 § 2(a), 115 Stat. at 224.

Judge Walton then went on to consider some practical limitations on Common Article 3 detentions, which are covered in the next part.

[jmm99]

The most relevant portion of the opinion (to most here) deals with the criteria used to determine membership in the “armed forces” of the enemy. Judge Walton felt that Article 4 of the Third Geneva Convention and Article 43 of Additional Protocol I, while not binding, can be used to inform:


(opinion, p.43)
Although these provisions obviously cannot be applied literally to the enemy organizations contemplated in the AUMF—if that were the case, the conflict at hand would not be governed by Common Article 3 in the first place—they may nevertheless serve as templates from which the Court can glean certain characteristics necessary to identify those individuals who comprise an “armed force” for purposes of Common Article 3. This approach is also consistent with Common Article 3’s command that the “[p]arties to the conflict . . . endeavor[r] to bring into force . . . all or part of the other provisions of the [Third Geneva Convention].

The judge, along with JMM, concluded that agreements with AQ-Taliban, as to the application of the GCs, are unlikely (p.43, n.18).

OK, here is the judge's key test for a person being a part of AQ-Taliban:


(opinion, pp.43-46)
Foremost among these basic distinguishing characteristics of an “armed force” is the notion that the group in question be “organized . . . under a command responsible . . . for the conduct of its subordinates,” Additional Protocol I, art. 43.1. Although “[t]he term ‘organized’ is obviously rather flexible, . . . [a]ll armed forces, groups[,] and units are necessarily structured and have a hierarchy.” ICRC Additional Protocols Commentary, supra, at 512; see also Kleffner, supra, at 332 (“Members of organi[z]ed armed groups do not act as atomi[z]ed individuals, but as part of a structured collective whose very purpose it is to use armed force and inflict death and injury to objects of such an intensity so as to reach the threshold of non-international armed conflict.”). Thus, mere sympathy for or association with an enemy organization does not render an individual a member of that enemy organization’s armed forces. Instead, the individual must have some sort of “structured” role in the “hierarchy” of the enemy force.

Obviously, “the ‘organizations’ that the President is authorized to target under the AUMF do not . . . issue membership cards or uniforms.” Gov’t’s Opp’n at 6. Nevertheless, there is a distinction to be made between members of a terrorist organization involved in combat operations and civilians who may have some tangential connections to such organizations. As Curtis Bradley and Jack Goldsmith note in their lengthy article on the validity of the AUMF and its implications, “terrorist organizations do have leadership and command structures, however diffuse, and persons who receive and execute orders within this command structure are analogous to combatants” in international armed conflicts. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2114-15 (May 2005). Thus, under Additional Protocol I, only “persons who receive and execute orders” from the enemy’s “command structure” can be considered members of the enemy’s armed forces. Sympathizers, propagandists, and financiers who have no involvement with this “command structure,” while perhaps members of the enemy organization in an abstract sense, cannot be considered part of the enemy’s “armed forces” and therefore cannot be detained militarily unless they take a direct part in the hostilities.

At the same time, the armed forces of the enemy consist of more than those individuals who would qualify as “combatants” in an international armed conflict. See ICRC Third Geneva Convention Commentary, supra, at 51. (“At the Conference on Government Experts, the question arose as to the advisability of giving a more exact definition of armed forces by stating . . . that the term covers both combatants and non-combatants. It was finally considered that this fact was usually implicit in any general reference to armed forces . . . .”); ICRC Additional Protocols Commentary, supra, at 510 (noting that under the Hague Regulations that informed the drafting of Article 4 of the Third Geneva Convention and Article 43 of Additional Protocol I, “[t]he armed forces of the belligerent parties may consist of both combatants and non-combatants”).

The key question is whether an individual “receive[s] and execute[s] orders” from the enemy force’s combat apparatus, not whether he is an al-Qaeda fighter. Thus, an al-Qaeda member tasked with housing, feeding, or transporting al-Qaeda fighters could be detained as part of the enemy armed forces notwithstanding his lack of involvement in the actual fighting itself, but an al-Qaeda doctor or cleric, or the father of an al-Qaeda fighter who shelters his son out of familial loyalty, could not be detained assuming such individuals had no independent role in al-Qaeda’s chain of command. See Kleffner, supra, at 334 (“[P]ersons who accompany the armed forces without actually being members thereof should be immune from being made the object of attack, unless and for such time as they directly participate in hostilities.”). [19]

[19] Kleffner argues that “only ‘fighters’ should be liable to attack for the entire duration of their membership” in the enemy armed forces because “organi[z]ed armed groups may include members devoted to functions other than fighting.” Kleffner, supra, at 333. The problem with this approach is that many members of the armed forces who, under different circumstances, would be “fighters” may be assigned to non-combat roles at the time of their apprehension. These individuals are no less a part of the military command structure of the enemy, and may assume (or resume) a combat role at any time because of their integration into that structure. For example, an al-Qaeda cook who has trained at an al-Qaeda camp and sworn allegiance to Osama bin Laden is no less dangerous than his comrade guarding the camp entrance, and must be incapacitated for the same reasons.

My only concern with this test, as stated above, is that it may not be broad enough to pull in some persons who are integral members of the infrastructure. Remember that a person who cannot be detained also cannot be killed - I suppose that person could be arrested and charged criminally (e.g., a financier of AQ); but isn't the AQ financier as or more important than the AQ foot soldier ?

This is a first step down the path under the new definition. Presumably, there will be more refinements as cases are tried by Judge Walton under it (see pp.46-47).

[jmm99]

The "state secrets privilege" (in US law - not the UK statute) is a doctrine which, in one branch (dismissal of the action), goes back to a contract made by Abe Lincoln with a spy; and which, in another branch (exclusion of evidence), goes back to the trial of Aaron Burr. The doctrine applies to civil cases brought against the government.

Two recent Court of Appeals cases (which conflict) involved extraordinary rendition; but there have been a number of cases in the last few years. The latest case, analysed by Lyle Denniston (http://www.scotusblog.com/wp/state-secrets-doctrine-narrowed/#more-9361), involves our old pal Binyam Mohamed.


“State secrets” doctrine narrowed
Tuesday, April 28th, 2009 6:16 pm | Lyle Denniston
....
Deepening a split among lower courts, and thus adding to chances the Supreme Court will be drawn back into the dispute, a federal appeals court on Tuesday narrowed significantly the government’s power to block lawsuits altogether by claiming the need to protect “state secrets.” It did so by proclaiming an important role for judicial power “in the context of secret Executive conduct.”

The ruling by the Ninth Circuit Court in Mohamed, et al., v. Jeppesen Dataplan, et al. (docket 08-15693), renews a controversy over the federal courts’ role in judging the legality of the government’s secret “rendition” program of picking up terrorism suspects abroad and shipping them to other countries for interrogation and, sometimes, torture. The Supreme Court turned down the first case on the “rendition” program 18 months ago (El-Masri v. U.S., 06-1613), but the issue now seems sure to return.

The Mohamed opinion is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/jeppesendecision.pdf); the El-Masri opinion is here (http://pacer.ca4.uscourts.gov/opinion.pdf/061667.P.pdf).

A report by the ACS (American Constitution Society), "Reforming the State Secrets Privilege", is here (http://www.acslaw.org/files/Frost%20FINAL.pdf). The Senate report for the 2008 State Secrets Protection Act (proposed, but not enacted) is here (http://www.fas.org/sgp/congress/2008/srep110-442.html).

Given the huge changes in the treatment of state secrets (the classification systems) since the era of Burr & Lincoln, this doctrine seems something of a past relic. As we have seen in the habeas and FISA cases, Federal judges are quite competent to protect classified evidence - and to issue very redacted opinions, etc.

Since two Circuits are clearly divided, SCOTUS would be likely to take the case - if DoJ appeals. And, of course, Congress could act to define the doctrine more clearly.

[jmm99]

Yup, chalk one thumbs up for John Ashcroft, who wanted to (and did) charge al-Marri in Federal District Court - and chalk one thumbs down for Pres. Bush, who overruled Ashcroft and detained al-Marri for the last six years under an Executive Order.

Except for some minor issues, the case ended today (http://www.scotusblog.com/wp/lingering-issues-for-al-marri/) in a guilty plea (to a slightly reduced charge - 15 year max).


Lingering issues for Al-Marri
Thursday, April 30th, 2009 10:06 pm | Lyle Denniston
...
Nearly two months after the Supreme Court took off of its docket a major case on presidential detention power, the individual involved — Ali Saleh Kahlah Al-Marri, a Qatari and Saudi national — has pleaded guilty to criminal charges in a regular federal court. ...
...
In particular, Al-Marri’s lawyers indicated in the plea agreement that they will attempt to get credit for him against his prison term — up to 15 years — for the more than seven years he has been in federal civilian or military custody. They apparently also will press for even less prison time, with the argument that he was abused and kept in inhumane conditions for much of the time he was being held in a Navy brig in South Carolina as an “enemy combatant.”
....
On Thursday, in U.S. District Court in Peoria, Ill. — the city where Al-Marri had been living and where he was first taken into federal custody in late 2001 — the former detainee pleaded guilty to one of the two counts against him: conspiracy to provide “material support” to the Al-Qaeda terrorist network....
....
U.S. District Judge Michael M. Mihm has set sentencing for July 30. The Justice Department said Al-Marri “faces up to 15 years imprisonment, a $250,000 fine, a life term of supervised release, and a $100 mandatory special assessment.” The Justice Department signaled in the plea agreement that it “reserves the right to oppose” any claim that Al-Marri should get less than a 15-year prison term. ...

Credit for time served is normally granted - that issue has been discussed here before (in connection with the Hamdan case).

The DoJ Press Release (http://www.usdoj.gov/opa/pr/2009/April/09-nsd-415.html) goes into some detail about al-Marri's proffer in support of the plea:


Statement of Facts

Between 1998 to 2001, al-Marri attended various terrorist training camps where he learned the use of weapons and operational security tradecraft that al-Qaeda employed to avoid detection, conceal their communications and protect their operations. These methods included prearranged codes and other techniques to protect communications, counter-surveillance techniques and the protection of information on computers.

During these trips, al-Marri stayed in safe houses in Pakistan, which he agrees the government would prove were run by al-Qaeda. While in the terrorist training camps and safe houses, he used the nickname "Abdul-Rahman al-Qatari," and provided al-Qaeda operatives with his family contact information so they could inform his family should he be killed or "martyred" during an al-Qaeda mission.

In 2001, al-Marri was approached by Khalid Sheikh Mohammed, who was then the external operations chief for al-Qaeda, about assisting al-Qaeda operations in the United States. Al-Marri agreed to do so and knew at the time that he entered into the agreement with Khalid Sheikh Mohammed that he was providing himself to al-Qaeda to further their terrorist objectives. Al-Marri was also aware that al-Qaeda was responsible for attacks against the United States, including the 1998 bombings of two U.S. Embassies in East Africa, and the 2000 attack on the USS Cole. In addition, he was aware of the 1996 and 1998 "fatwas" issued by Usama bin Laden against the United States.

Al-Marri was instructed by Khalid Sheikh Mohammed to enter the United States no later than Sept. 10, 2001, with an understanding that he was to remain in the United States for an undetermined length of time. Khalid Sheikh Mohammed also directed al-Marri to meet with Mustafa al-Hawsawi (hereinafter al-Hawsawi) in Dubai, United Arab Emirates, where al-Hawsawi provided him with $10,000. Al-Marri knew that al-Hawsawi was associated with al-Qaeda and agrees that the government would prove at trial that al-Hawsawi was a primary financier of the September 11th attacks.

Communications in Code

Khalid Sheikh Mohammed and al-Marri also set up a code through which they communicated. Al-Marri was instructed to conceal telephone numbers and other numbers to be used in e-mail addresses by using a numeric code (hereinafter, "10-code"). This code was used by al-Qaeda members, including al-Hawsawi and some of the Sept. 11th hijackers to conceal telephone numbers so as to avoid detection. Al-Marri was also provided contact information for several al-Qaeda associates which he stored in his personal PDA (Personal Digital Assistant) using the 10-code.

Khalid Sheikh Mohammed and al-Mari also used a pre-arranged code to disguise their email communications. The pre-arranged communication method referred to Khalid Sheikh Mohammed as "Muk." Al-Marri was to refer to himself as "Abdo" in these communications and to send emails to HOR70@hotmail.com, an email account used by Khalid Sheikh Mohammed. Through these emails, al-Marri was to keep Khalid Sheikh Mohammed apprised of his efforts to enter the United States, his contact information and his efforts to advance al Qaeda’s mission in the United States. Khalid Sheikh Mohammed was to use these emails to pass on instructions to al-Marri.

Details of the prearranged code were stored in an address book that was found in an al-Qaeda safe house in Pakistan. The book contained the email address to be used by al-Marri, which was listed as farwaa@yahoo.com , along with the identification number for al-Marri of "038." From this coded information, al-Marri used the email address of farwaa72@hotmail.com. The address book also listed Khalid Sheikh Mohammed’s email address as HOR70@hot[mail.com].

From approximately June 2001 through August 2001, al-Marri communicated via email with Khalid Sheikh Mohammed, as directed and agreed upon, about his attempts to gain entry into the United States via a student visa from Bradley University in Peoria, Ill.. He applied online to Bradley University using the same email address he used to communicate with Khalid Sheikh Mohammed. To expedite his admission, he applied for a second bachelor’s degree instead of a master’s degree.

Once al-Marri learned he had been re-enrolled in Bradley University, he traveled to Dubai and met with al-Hawsawi, who provided him $10,000. Al-Marri then traveled to Pakistan to meet Khalid Sheikh Mohammed. Upon his return to Qatar, al-Marri applied for a new Qatari passport. He also obtained his student visa, but did not admit on his visa application that he had taken a trip to the United States in 2000, where he had established a fictitious business using a false name and stolen Social Security number, fraudulently obtaining a number of credit cards and opening several business accounts.

Arrival in the United States

Al-Marri and his family arrived in the United States on Sept. 10, 2001. On Sept. 21, 2001, he traveled to another university in Illinois and created five new email accounts under different aliases. By this time, he knew al-Qaeda was responsible for the Sept. 11, 2001 attacks and understood why Khalid Sheikh Mohammed had directed him to be in the United States before that date. Al-Marri used these new e-mail accounts to inform Khalid Sheikh Mohammed that he had arrived safely in the United States. He also provided Khalid Sheikh Mohammed with his Peoria cellular telephone number.

From Sept. 23, 2001 through Nov. 4, 2001, al-Marri made several unsuccessful attempts to call al-Hawsawi and others he knew were al-Qaeda operatives. To conceal his communications efforts, he used prepaid calling cards at public pay phones in and around central and northern Illinois. Although the initial calls were made from payphones in the Peoria area, after al-Marri was interviewed by the FBI on Oct. 2, 2001, he expanded the calling area, sometimes traveling more 160 miles away to place calls.

Al-Marri also conducted online research of various cyanide compounds, including hydrogen cyanide, potassium cyanide, and sodium cyanide. He reviewed toxicity levels, locations where these items could be purchased, and specific pricing of the compounds. He also explored obtaining sulfuric acid, a well-known binary agent used in a hydrogen cyanide binary device to create cyanide gas. Al-Marri agrees that the government would prove at trial this is the method taught by al Qaeda for manufacturing cyanide gas.

Al-Marri agrees that the government would prove at trial that his research into cyanide compounds is consistent with research conducted by persons trained in camps teaching advanced poisons courses to terrorist organizations, including al Qaeda. He also agrees that the government would prove at trial that an almanac recovered in his residence was bookmarked at pages showing dams, waterways and tunnels in the United States, consistent with al Qaeda attack planning regarding the use of cyanide gases.

Finally, al-Marri used an "anonymizer" program on his laptop when surfing the internet. He agrees that the government would prove at trial that these types of programs are designed to allow individuals to anonymously search internet websites and programs, and that the program on his computer also erased all historical internet searches on a regular basis.

So, another potential witness against KSM - and, so much for an innocent grad student who wouldn't hurt a fky - ad infinitum, ad nausium.

[jmm99]

When Pres. Obama was candidate Obama, he made very clear his opposition to the use of military commission trials (under the MCA) in detainee cases. In fairness to his administration, it has not expressly said that the MCA system was dead. Now, this (http://www.nytimes.com/2009/05/02/us/politics/02gitmo.html?_r=1&partner=rss&emc=rss&pagewanted=all) from the NY Times:


U.S. May Revive Guantánamo Military Courts
The four-month suspension of military commission proceedings ordered for Guantánamo detainees is to end on May 20.
By WILLIAM GLABERSON
Published: May 1, 2009

The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself.

Officials said the first public moves could come as soon as next week, perhaps in filings to military judges at the United States naval base at Guantánamo Bay, Cuba, outlining an administration plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.
.....
Obama administration officials — and Mr. Obama himself — have said in the past that they were not ruling out prosecutions in the military commission system. But senior officials have emphasized that they prefer to prosecute terrorism suspects in existing American courts. When President Obama suspended Guantánamo cases after his inauguration on Jan. 20, many participants said the military commission system appeared dead.

But in recent days a variety of officials involved in the deliberations say that after administration lawyers examined many of the cases, the mood shifted toward using military commissions to prosecute some detainees, perhaps including those charged with coordinating the Sept. 11 attacks.

“The more they look at it,” said one official, “the more commissions don’t look as bad as they did on Jan. 20.”

Several officials insisted on anonymity because the administration has directed that no one publicly discuss the deliberations.

Administration officials said Friday that some detainees would be prosecuted in federal courts and noted that Mr. Obama had always left open the possibility of using military commissions. ... [much more in article]

There is still some confusion among the media (surprise !) about the two very different paths that detainee cases can take. Since this is a rapidly developing area of law (with very divergent views held by the "SMEs"), one cannot place too much blame on the journalists - their lawyer-pundit guests are another kettle of fish.

In any event, to summarize what seems to me to be going on is this:

1. Detention. The issue of detention, which is basic - and rather easy to determine whichever one of the respective tests developed by Judges Leon, Urbina, Bates and Walton, one uses - boiling down to whether the detainee, when captured or surrendered, had been involved in AQ-Taliban or associated groups (the differences between the judges has hinged on what measure of involvement is needed to allow detention).

Among the detainees, we have at least four status classes to consider (putting them in a quote to set them off):


1. Aliens never resident in the US or unlawfully resident in the US. No question here that the AUMF and Executive powers allow detention, subject to review of the detainee's status by an independent magistrate (not necessarily via DC District habeas cases, since judicial independence could be rather easily established via a separate & independent detainee review process initially outside of the Article III courts, so long as ultimate appellate review can be had in an Article III court).

2. Aliens given resident status in the US under false pretenses. Mr al-Marri is a perfect example, since his resident status was invalid ab initio because his application failed to disclose his AQ connections (e.g., the various prison guards at Nazi concentration camps). Logic suggests that anyone in this category be treated the same as those in category 1.

3. Aliens initially holding valid resident status, who later became associated with AQ, for example. This is a more difficult constitutional question (addressed by Justice Robert Jackson in the early 1950s, who was a genuine SME on war crimes; and, more recently, by Justice Scalia), which might have been addressed if the Al-Marri case had been decided by SCOTUS. This category, as far as detention for the duration of the armed conflict is concerned, stands between categories 2 and 4.

4. US citizens who became associated with AQ. The law in this area seems fairly clear (e.g., Justice Scalia has addressed it, among others) - US citizens, even if AQ members, cannot be detained simply because of that status; but must be charged criminally (treason or a lesser criminal chage).

As I perceive the cases so far decided, this is where we stand on the question of detention (basically a Common Article 3, GCs, issue based on the law surrounding CA 3 as it has been accepted by the US - not on what I Law "SMEs" claim it is).

2. Criminal charges. Many of the detainees are also subject to criminal charges under one or more Federal statutes (e.g., KSM). The question which the NY Times article raises is whether prosecutions should be by military tribunals - presumably as an alternative forum to the Federal courts.

Whether or not criminal charges are brought has nothing to do with whether the person can be detained until such time as the President and Congress determine that the armed conflict with AQ has ended - or that the detainee is not likely to return as a participant to that conflict (which requires a rather exact crystal ball).

This last point is where much controversy lies. The Euro-centric view (e.g., the Eminent Jurists Panel) views these cases as solely criminal law matters - and that the US detentions (based on the CA 3 armed conflict standard) are frankly illegal. Many I Law "SMEs" agree. The DC judges (to a person) disagree and have been developing a CA 3 armed conflict jurisprudence (see note * below).

- cont. in part 2 ....

------------------

Many of the DC judges (district and circuit) have rotated through tours on the national intelligence courts (FISA cases, etc.). As such, they are more familiar with the classified information regarding AQ etc., than those of us who are viewing the process from the outside. One should keep this in mind, since their life experiences do enter into their decisions.

[jmm99]

The NY Times also ran a News Analysis (http://www.nytimes.com/2009/05/02/us/02marri.html?ref=politics) of the Al-Marri case today:


News Analysis
Path to Justice, but Bumpy, for Terrorists
By JOHN SCHWARTZ
Published: May 1, 2009

For years, legal experts have debated whether terrorism suspects held as enemy combatants by the Bush administration could be effectively tried within the criminal justice system. On Thursday, in one of the first such cases resolved before a civilian judge, an answer began to emerge: terrorists can be brought to justice, but the process can be very messy. ....

In that article, one finds a quote by Andy McCarthy (a cousin no doubt, since he does not mince words):


“This is a guy who conspired to commit mass murder attacks with the very highest-ranking guys” in Al Qaeda, said Andrew C. McCarthy, a former United States attorney who successfully prosecuted Sheik Omar Abdel Rahman and 11 others for their role in the 1993 World Trade Center attack. The role of the government in such a case, Mr. McCarthy said, is “to get these guys off the street for as long as you can keep them off the street.”
.....
Mr. McCarthy, the former United States attorney, who this week publicly refused an invitation from the attorney general to join a presidential task force on detention policy over his disagreement with the administration’s policies, said the nation’s future safety would determine which side was right. If no new terrorist attacks take place, he said, “people like me are going to have to acknowledge that we overrated the threat.” He added, however, that he did not believe that would be the case.

Mr McCarthy's letter (1 May 2009) to AG Holder is here (http://nrinstitute.org/mustread.php), which says (in small part, with emphasis as in ACM's original, except as noted):


Beyond that, as elucidated in my writing (including my proposal for a new national security court, which I understand the Task Force has perused [JMM emphasis]), I believe alien enemy combatants should be detained at Guantanamo Bay (or a facility like it) until the conclusion of hostilities. This national defense measure is deeply rooted in the venerable laws of war and was reaffirmed by the Supreme Court in the 2004 Hamdi case. Yet, as recently as Wednesday, you asserted that, in your considered judgment, such notions violate America’s “commitment to the rule of law.” Indeed, you elaborated, “Nothing symbolizes our [adminstration’s] new course more than our decision to close the prison at Guantanamo Bay…. President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law[.]” (Emphasis added.)

Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.

For what it may be worth, I will say this much. For eight years, we have had a robust debate in the United States about how to handle alien terrorists captured during a defensive war authorized by Congress after nearly 3000 of our fellow Americans were annihilated. Essentially, there have been two camps. One calls for prosecution in the civilian criminal justice system, the strategy used throughout the 1990s. The other calls for a military justice approach of combatant detention and war-crimes prosecutions by military commission. Because each theory has its downsides, many commentators, myself included, have proposed a third way: a hybrid system, designed for the realities of modern international terrorism—a new system that would address the needs to protect our classified defense secrets and to assure Americans, as well as our allies, that we are detaining the right people [JMM emphasis].

There are differences in these various proposals. But their proponents, and adherents to both the military and civilian justice approaches, have all agreed on at least one thing: Foreign terrorists trained to execute mass-murder attacks cannot simply be released while the war ensues and Americans are still being targeted. We have already released too many jihadists who, as night follows day, have resumed plotting to kill Americans. Indeed, according to recent reports, a released Guantanamo detainee is now leading Taliban combat operations in Afghanistan, where President Obama has just sent additional American forces.

The Obama campaign smeared Guantanamo Bay as a human rights blight. Consistent with that hyperbolic rhetoric, the President began his administration by promising to close the detention camp within a year. The President did this even though he and you (a) agree Gitmo is a top-flight prison facility, (b) acknowledge that our nation is still at war, and (c) concede that many Gitmo detainees are extremely dangerous terrorists who cannot be tried under civilian court rules. Patently, the commitment to close Guantanamo Bay within a year was made without a plan for what to do with these detainees who cannot be tried. Consequently, the Detention Policy Task Force is not an effort to arrive at the best policy. It is an effort to justify a bad policy that has already been adopted: to wit, the Obama administration policy to release trained terrorists outright if that’s what it takes to close Gitmo by January.

Obviously, I am powerless to stop the administration from releasing top al Qaeda operatives who planned mass-murder attacks against American cities—like Binyam Mohammed (the accomplice of “Dirty Bomber” Jose Padilla) whom the administration recently transferred to Britain, where he is now at liberty and living on public assistance. I am similarly powerless to stop the administration from admitting into the United States such alien jihadists as the 17 remaining Uighur detainees. According to National Intelligence Director Dennis Blair, the Uighurs will apparently live freely, on American taxpayer assistance, despite the facts that they are affiliated with a terrorist organization and have received terrorist paramilitary training. Under federal immigration law (the 2005 REAL ID Act), those facts render them excludable from the United States. The Uighurs’ impending release is thus a remarkable development given the Obama administration’s propensity to deride its predecessor’s purported insensitivity to the rule of law.

I am, in addition, powerless to stop the President, as he takes these reckless steps, from touting his Detention Policy Task Force as a demonstration of his national security seriousness. But I can decline to participate in the charade.

Tough love.

I hope this update and analysis will be helpful to readers of this thread, in reaching a better understanding of what the issues are and what possible solutions exist.

[jmm99]

U.S. District Judge Gladys Kessler (http://www.dcd.uscourts.gov/kessler-bio.html) ordered the release yesterday of Alla Ali Bin Ali Ahmed (http://www.foxnews.com/politics/2009/05/04/judge-orders-release-guantanamo-inmate-imprisoned-seven-years/).


Judge Orders Release of Guantanamo Inmate, Imprisoned Seven Years
U.S. District Judge Gladys Kessler says the United States should take all necessary diplomatic steps to release Alla Ali Bin Ali Ahmed.
AP
Monday, May 04, 2009

WASHINGTON -- A federal judge on Monday ordered a Yemeni man released from Guantanamo Bay after seven years' detention.

U.S. District Judge Gladys Kessler says the United States should take all necessary diplomatic steps to release Alla Ali Bin Ali Ahmed. He was picked up seven years ago by Pakistani forces in a prayer house that the United States said was run by a high-ranking Al Qaeda operative
....
The judge gave the United States until June 15 to report back on the status of his release. Justice Department spokesman Dean Boyd said the decision is under review and that he can't comment yet on whether the government will appeal.

Most of the information in the case is classified. The United States argued that Ahmed, held as detainee 692, was associated with Al Qaeda and the Taliban. Unclassified documents filed in court say he traveled to Faisalabad, Pakistan, in October 2001 and stayed at an Al Qaeda guesthouse for about four months before being captured during a raid on the house in March 2002 when he was 18 years old. ....

This is a new judge in our reporting of these cases (Judge Kessler was appointed in 1994 by Pres. Clinton).

The question not addressed in the news brief is what standard she used to determine the detainee's status. More on that if I run into her opinion.

[jmm99]

to be released when classification review is completed, per her order (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1678-212) filed about 15 minutes ago:


For the reasons set forth in this Court’s Classified Memorandum Opinion of May 4, 2009, [1] it is hereby ORDERED, that Petitioner Alla Ali Bin Ali Ahmed’s petition for a writ of habeas corpus is granted; and it is further

ORDERED, that the Government take all necessary and appropriate diplomatic steps to facilitate Petitioner’s release forthwith, and to report back to the Court no later than June 15, 2009, as to the status of Petitioner’s release.
....
[1] The Classified Opinion is currently undergoing classification review. As soon as it is completed, the Unclassified Opinion will be made public.

For any masochist who wants to follow the Gitmo DC District cases, the official webpage is here (http://www.dcd.uscourts.gov/public-docs/aggregator/sources/1).

[davidbfpo]

Today The Independent has two articles on UK Security Service (MI5) offers to detainees in Afghanistan, Pakistan and G-Bay. Based on a detainee's interview, now submitted as a document for the High Court; which I suspect are part of the legal battle in the UK for compensation and more non-legal impact: http://www.independent.co.uk/news/uk/home-news/exposed-mi5s-secret-deals-in-camp--xray-1679884.html

The second article is more of a comment: http://www.independent.co.uk/opinion/commentators/robert-verkaik-alarm-bells-should-have-been-ringing-in-london-1679708.html

No real surprises.

davidbfpo

[jmm99]

Thank you for the UK update.

If memory serves, the High Court, in the Binyam Mohamed case, still had outstanding the request for the remainder (IIRC about 7 paragraphs) of the document held by your FM David Miliband. Haven't seen a decision on that yet. If it comes down (or if I missed it), I would appreciate the advice.

[davidbfpo]

An interesting commentary by the former CIA Director and Congressional veteran, especially the impact on those in the "firing line" in the agencies: http://www.washingtonpost.com/wp-dyn/content/article/2009/04/24/AR2009042403339.html

davidbfpo

[davidbfpo]

If memory serves, the High Court, in the Binyam Mohamed case, still had outstanding the request for the remainder (IIRC about 7 paragraphs) of the document held by your FM David Miliband. Haven't seen a decision on that yet. If it comes down (or if I missed it), I would appreciate the advice.

JMM,

Found the latest UK legal update: http://news.bbc.co.uk/2/hi/uk_news/8040203.stm and a shorter notice by his lawyers http://cryptome.org/0001/uk-torture.htm

Methinks the UK government is having a hard time deciding how to proceed and would prefer a quiet Sunday morning to announce their decision. Perhaps the furore over MPs expenses will help?

davidbfpo

[jmm99]

will love this one - as well as the CIA docs and other docs released and to be released (or leaked). There will be little rationality in the process which will ensue.

[jmm99]

for the update. Often when SCOTUS re-hears a decision, the result is a reversal of the decision. But, not always. So, I'll be patient and wait to see what your judges decide.

[davidbfpo]

There is a seperate thread on US attempts to get others to accept those released, but it has meandered off the original topic: http://council.smallwarsjournal.com/showthread.php?t=7191

So I've added a cross reference on that thread and this update here: http://www.telegraph.co.uk/news/worldnews/middleeast/saudiarabia/5291878/Saudi-Arabia-considers-taking-Guantanamo-inmates.html

One wonders what the 'price' exacted by Saudi Arabia is?

davidbfpo

[jmm99]

at the Byzantine ways of the Kingdom's diplomacy. I am getting the impression (from a number of different threads and perhaps isolated events) that somethings (pl.) are on-going. No idea what - and what the wave (in MikeF terms - :), Mike) really looks like.

PS: We had a snow squall yesterday - probably very explainable scientifically; but I don't know that answer either.

I also note that Turki's WP interview involved a slam at Gitmo - and a tout of the Kingdom's rehab program. So, that fits with a deal to transfer.

Also, perhaps (?) a Hekmatyar deal. I don't recall whether he was one of Turki's proteges back in the day.

And, of course, what Pstan is going to look like.

[davidbfpo]

JMM,

Yes, I too thought the coincidences shown here are all rather timely, in meeting Saudi interests and helping the USA. Some are rather public, which is not how I thought they worked.

davidbfpo

[jmm99]

but if some public stuff has surfaced; perhaps (repeat: perhaps), we are looking at the tip of the iceberg.

If so, let us hope that the current watches on the Titanic (http://en.wikipedia.org/wiki/RMS_Titanic) and Californian (http://en.wikipedia.org/wiki/SS_Californian) are more knowledgable than the originals - that not being a good example of maritime co-operation.

[Watcher In The Middle]

Originally posted by JMM99:

....but if some public stuff has surfaced; perhaps (repeat: perhaps), we are looking at the tip of the iceberg.

That looks to be an understatement. From a political standpoint, this entire area has the potential to spill over and contaminate policy areas that are totally divorced from these specific areas. And it's not just going to be a straight Democrat-Republican battleground, but it's going to both create and disrupt all sorts of different political alliances (and by definition, both policies and programs).

One of the most basic rules in this business is that you never want to make politics personal (and "NEVER" is the operative term). The entire debate over Guantanamo and torture have the very real possibility to get us right there. There's very good political agenda reasons the current Administration initially did not want to go there.

Oh well.

[jmm99]

Judge Kessler's opinion is here (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1678-220).

In effect, she went along with the Obama DoJ on the law and held against them on the facts:


IV. CONCLUSION

For all the foregoing reasons, and for the reasons stated during the Hearing held on April 16-17, 2009, the Court grants the petition for a writ of habeas corpus. The Government has failed to prove, for all the reasons stated above, by a preponderance of the evidence, that AlIa Ali Bin Ali Ahmed was "part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners."

As to the claim of participating in fighting, the Government produced virtually no credible evidence as to the claim of receiving military training, the conclusory nine-word hearsay statement by [redacted] does not show that it is more likely than not that he received such training; as to the claim that he traveled around Afghanistan in 2001 and 2002 in the company of terrorist fighters fleeing the battlefield, even if the Government had proven this charge, which it did not, such a fact would not constitute substantial support; as to the evidence that he stayed at [redacted], the Government has certainly proven that he stayed there, but has utterly failed to present evidence that he was a sUbstantial supporter of al-Qaida and/or the Taliban while he did stay there; as to the Government's position about the significance of locating Petitioner's alleged kunya on a list, the Court finds this argument without any merit whatsoever.

When taken all together as facts which comprise a mosaic theory, the evidence does not satisfy the Government's burden of proof: i.e., the Government's picture does not establish that it is more likely than not that Petitioner fought for the Taliban, that he received military training, that he traveled in Afghanistan with terrorists fleeing from the scene of war, that his stay at [redacted] demonstrated he was a supporter of al-Qaida, [rest of paragraph redacted]

The heavily redacted portion of Judge Kessler's discussion of the USG evidence (pp.13-43) makes it difficult to critique her dismissal of that evidence. I will agree with her that there was a lack of direct evidence against him and that some, but not all, of the USG's case was based on multiple level hearsay. On the other hand, I get the impression that Judge Kessler was slanting more to a beyond a reasonable doubt standard than to the preponderence of the evidence standard which she held to apply.

Two other things came to mind as I read the fact findings. One is that she was very much influenced by a general perception of torture as being the basis for the many of the statements made vs the detainee - that is, the detainee was not tortured and gave no statements except for exculpatory ones, but the judge appeared to assume that many of the statements by others vs him were made under duress, even though no evidence of that appears in the non-redacted portions of the opinion. The syllogism seemed to be (1) torture or duress goes on at Bagram (as a generalization); (2) these statements were made at Bagram; (3) therefore, they are subject to doubt as to whether they were made under duress, etc.

Another aspect (my perception) is that Judge Kessler seemed a bit naive about how AQ-Taliban worked in Astan and Pstan. I found no indication that she has been on the FISA court (as contrasted with some of the other DC judges, mentioned in preceding posts). In short, her life experience as a judge has been in different areas of the law:

From her official bio (http://www.dcd.uscourts.gov/kessler-bio.html):


Following graduation, Judge Kessler was employed by the National Labor Relations Board, served as Legislative Assistant to a U.S. Senator and a U.S. Congressman, worked for the New York City Board of Education, and then opened a public interest law firm. In June 1977, she was appointed Associate Judge of the Superior Court of the District of Columbia. From 1981 to 1985, Judge Kessler served as Presiding Judge of the Family Division and was a major architect of one of the nation’s first Multi-Door Courthouses. She served as President of the National Association of Women Judges from 1983 to 1984, served on the Executive Committee and as vice president of the ABA’s Conference of Federal Trial Judges, and on the U.S. Judicial Conference’s Committee on Court Administration and Management for six years. Judge Kessler currently co-chairs the Committee of the National Academy of Sciences on the Development of the Third Edition of the Reference Manual on Scientific Evidence of the Federal Judicial Center. She is vice-chairperson of the District of Columbia Commission on Judicial Disabilities and Tenure.

Well, you can't win them all. Hopefully, the detainee will be a good boy (i.e., a student innocent merely caught up in the fogs and frictions of war, as the judge found); and he will not turn up later on a battlefield.

[jmm99]

terrorism-related arrests, prosecutions, convictions and sentences, was first posted in another thread. For quicker access, the link is here (http://www.homeoffice.gov.uk/rds/pdfs09/hosb0409.pdf).

The bottom line is found here:


Sentencing (Tables 8a and b)

19. Currently sentencing information is only available for the more recent terrorist trials based upon data collected by the Home Office since January 2007 (see Notes). This data will exclude a small number of less serious offences and it is intended to update this information in future reports using data collected by the Crown Prosecution Service.

20. In 2007/8, based upon year of conviction and principal offence, there were 31 convictions under terrorism legislation and 25 convictions under non-terrorism legislation which were considered significant. Shorter sentences were given under terrorism legislation with the majority (76%) under 10 years. The more serious nature of offences dealt with under non-terrorism legislation has meant that only 1 custodial sentence was under 4 years with 19 (84%) over 10 years, including 9 life sentences and a single Indeterminate sentence for Public Protection (IPP). Fifty-four per cent of all suspects in these cases pleaded guilty.

The distinction between convictions under terrorism legislation and those under non-terrorism legislation (but involving terrorists) is illustrated here:


17. For convictions since 11 September 2001 under terrorism legislation:

• 22% were for possession of an article for terrorist purposes;
• 15% were for membership of a proscribed organisation;
• 11% were for collection of information useful for a terrorist act.

18. For convictions considered terrorism related but under non-terrorism legislation:

• 16% were under Forgery & Counterfeiting Act 1981;
• 15% were under the Explosive Substances Act 1883;
• 13% were for conspiracy to murder;
• 9% were under the Firearms Act 1868;
• two murder convictions.

The percentage of terrorists charged was slightly higher than for ordinary criminals:


Persons charged (Table 2)

4. Of the 1,471 terrorism arrests since 11 September 2001, 521 (35%) resulted in a charge, 131 (9%) had alternative action taken and 819 (56%) were released without charge. Sixty-five per cent of all charges were considered terrorism related, of which 222 (65%) were under terrorism legislation and 118 (35%) under other legislation (e.g. conspiracy to murder). In addition there were 19 charges for port stops under Schedule 7 Terrorism Act 2000 which were excluded from later analysis.

5. A comparison was carried out between terrorism related offences and all criminal offences for which a suspect can be arrested and charged (see Notes).
....
This comparison showed 31% of those aged 18 and over arrested for indictable offences were prosecuted, compared with 35% of terrorism arrests resulting in a charge.

The primary vehicle used against AQ members and supporters resident within the US has also been the criminal justice system.

[jmm99]

Andy Worthington (no surprise) gives a very favorable view of Judge Kessler's opiinion. Read it here (http://original.antiwar.com/worthington/2009/05/13/judge-condemns-mosaic-of-gitmo-intel-and-unreliable-witnesses/). We report - you decide. :D

While the following is factually accurate (or at least is close to my last count),


This was not the first time that a judge had ordered a prisoner freed from Guantánamo because of the weakness of the government’s evidence. Since the Supreme Court reinstated the prisoners’ habeas corpus rights last June, judges have ordered the release of 25 prisoners in the 29 cases that have so far been heard.

most of 25 ordered released have been Uighurs, which involve a unique and uncontested set of facts - many posts above explain that.

[jmm99]

Judiciary Committee, Subcommittee on Administrative Oversight and the Courts - "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration", are online for the following:

Philip Zelikow (http://judiciary.senate.gov/pdf/09-05-13ZelikowTestimony.pdf)

Ali Soufan (http://judiciary.senate.gov/hearings/testimony.cfm?id=3842&wit_id=7906)

David Luban (http://judiciary.senate.gov/hearings/testimony.cfm?id=3842&wit_id=7905)

Jeffrey F. Addicott (http://judiciary.senate.gov/hearings/testimony.cfm?id=3842&wit_id=7904)

[jmm99]

Lyle Denniston has posted his analysis of Judge Kessler's opinion (http://www.scotusblog.com/wp/analysis-dismantling-a-detention-case-point-by-point/#more-9536).


Analysis: Dismantling a detention case, point by point
Thursday, May 14th, 2009 10:08 pm | Lyle Denniston

Analysis

Applying a set of legal rules or theories that appear outwardly to give the government an easier time of proving that a Guantanamo Bay detainee must remain confined, a federal judge nevertheless has found that none of them can support continuing captivity for a Yemeni national in the face of serious weaknesses found in the government’s evidence, especially its reliance on information from four other detainees.

In one of the widest ranging rulings by any trial judge in the wake of the Supreme Court’s decision finding that Guantanamo detainees have a constitutional right to contest their captivity, U.S. District Judge Gladys Kessler has ordered the release of 25-year-old Alla Ali Bin Ali Ahmed of Yemen after nearly seven years of detention. The ruling, if followed by other District judges, has strong negative portents for government efforts to justify further detention in other cases. [much more in article]

I have no complaints about Lyle's analysis, which leaves out editorial comments about Judge Kessler. :) Whether her opinion will be followed by other judges depends in large measure upon their life experiences (my personal opinion).

He and I agree that Judge Kessler's ruling's most important feature is her acceptance of the Obama DoJ's legal rules (legal points in []s added by JMM):


What is very likely the most significant parts of the ruling, with implications for other cases, is that Judge Kessler applied without qualification [1] the legal standard of government authority to detain that the Obama Administration has laid out, [2] allowed the government to try to prove its case on the lowest standard of proof, [3] conceded that the government was entitled to a presumption that its evidence was authentic, and [4] allowed the government to offer hearsay — what others said that Ahmed had said. Each of those legal principles is, as written, more favorable to the government than to detainees, but Kessler still rejected the cumulative effect as well as the individual strength of each piece of government evidence.

What and why did she do so ? Here is Lyle's take (with which I agree):


Kessler allowed the government to proceed on what is called “the mosaic theory” rather than requiring it to prove directly that Ahmed has been a terrorist — a much harder task. The “mosaic theory,” often used by the intelligence community to build a case, provides that single pieces of evidence that may not be strong when looked at singly can be examined together to form a convincing pattern — here, a pattern of terrorist activity.

In the end, however, Kessler said, “when taken all together as facts which comprise a mosaic theory, the evidence [against Ahmed] does not satisfy the government’s burden of proof.” The picture it assembled, she wrote, did not convince her that Ahmed “fought for the Taliban,” received military training, traveled in Afghanistan “with terrorists fleeing from the scene of war,” or demonstrated by a stay at a specific location (deleted) that he “was a supporter of al-Qaida.” (There was a further argument against him that she rejected, but all references to the details of that are redacted).

My perception (not expressed by Lyle) is that Judge Kessler seemed to evince a certain naivity as to intelligence matters (not apparently within her life experience). I also suggested that she, in effect, held the DoJ to a higher proof standard ("clear and convincing evidence", if not "beyond a reasonable doubt") than the 50 yards + a nose standard that she officially adopted.

As to the other legal rules, Judge Kessler accepted the rebuttable presumption of USG evidentiary accuracy, but held that in this case it was rebutted by the facts:


The only legal principle that the government asked her to apply that she rejected was a presumption that its evidence was accurate. ‘It is clear that the accuracy of much of the factual matter contained in those exhibits is hotly contested,” she wrote. There are, she noted, no statements that are verbatim accounts of what was said.

So, now you have three different analyses of this case to compare and reflect upon.

[jmm99]

is no surprise since at least one military judge began this week to schedule hearings later this month - and unnamed WH officials have said as much over the past two weeks.

Anyway, Pres. Obama made it official (http://www.google.com/hostednews/ap/article/ALeqM5hyhhRFdRhxZQUP6yBx71wUU_W42QD986QD680):


Obama revives tribunals for Gitmo detainees
By LARA JAKES – 6 hours ago

WASHINGTON (AP) — President Barack Obama says he is restarting military tribunals for a small number of terrorist suspects at Guantanamo though with several new legal protections for defendants.

Obama said in a statement Friday that his approach is "the best way to protect our country, while upholding our deeply held values."

The decision puts Obama in the position of reviving a Bush-era trial system he once assailed as deeply flawed — and opposed as a senator. But he is immediately changing the rules that govern the trials in ways consistent with his past criticism of the Bush system. Obama also is asking Congress to change the law. ....

Two other topics are being floated:

1. Detention for the duration (http://news.yahoo.com/s/afp/20090514/pl_afp/usattacksguantanamodetention) of the AUMF-designated armed conflict:


Obama mulls 'indefinite detention' of terror suspects
Thu May 14, 6:54 am ET

WASHINGTON (AFP) – As part of its plans to close Guantanamo Bay, the Obama administration is considering holding some of the detainees indefinitely and without trial on US soil, US media reported Thursday.

President Barack Obama's "administration is weighing plans to detain some terror suspects on US soil -- indefinitely and without trial -- as part of a plan to retool military commission trials that were conducted for prisoners held in Guantanamo Bay," The Wall Street Journal said.

The proposal, which is part of the administration's internal deliberations on how to deal with the prisoners ahead of a planned closure of the controversial US military prison next year, is being shared with some lawmakers, it added.

White House officials contacted by AFP had no immediate comment on the detainee deliberations.

Republican Senator Lindsey Graham, who met with White House Counsel Greg Craig this week about the Guantanamo plans, told the Journal that the administration was namely seeking authority for indefinite detentions granted by a national security court.

"This is a difficult question. How do you hold someone in prison without a trial indefinitely?" asked Graham, who, along with former Republican presidential nominee Senator John McCain, has pressed for reinstating the military commissions to try Guantanamo detainees.

This is consistent with a Common Article 3 approach to Transnational Violent Non-State Actor detention.

2. An independent National Security Court (http://blogs.wsj.com/law/2008/04/09/what-to-do-with-gitmo-detainees-profs-propose-national-security-court/) (an idea floated in Andy McCarthy's letter that I posted above) - from last year:


April 9, 2008, 1:16 PM ET
What to Do With Gitmo Detainees? Profs Propose National Security Court
.....
One response to that quandary, according to the article, is a proposal by law professors Neal Katyal (Georgetown), well-known for his win in Hamdan v. Rumsfeld, and Jack Goldsmith (Harvard), a former assistant AG. According to their proposal, a so-called national security court — in which sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained — would be a superior alternative to both military commissions and ordinary criminal prosecutions, which they believe are impractical for detainees captured on distant battlefields.

In their proposal, detainees would have lawyers, but they would have fewer rights than in a criminal case. Hearsay evidence may be admissible—so government agents could testify about what informants told them—and there would be no requirement for Miranda warnings before interrogations. Some proceedings would be closed to the public. (Goldsmith and Katyal wrote about their proposal last year in an NYT op-ed (http://www.nytimes.com/2007/07/11/opinion/11katyal.html?_r=2&oref=slogin).)

It may be of more than passing interest that Prof. Katyal (http://en.wikipedia.org/wiki/Neal_Katyal) is part of the Obama DoJ, as Principal Deputy Solicitor General.

[jmm99]

by Judge John Bates in an advisory opinion (http://www.scotusblog.com/wp/wp-content/uploads/2009/05/bates-on-detention-power-5-19-09.pdf) (setting the legal framework for upcoming merits hearings in several cases), as reported by SCOTUSblog (http://www.scotusblog.com/wp/another-judge-defines-detention-power/).


Another judge defines detention power
Tuesday, May 19th, 2009 11:25 pm | Lyle Denniston

As the pace quickens among federal judges to carry out the task assigned by the Supreme Court to spell out when the President may detain terrorism suspects at Guantanamo Bay, a fourth judge on Tuesday offered a definition. This time, the Obama Administration lost a bit more of the detention authority that other judges have embraced.

U.S. District Judge John D. Bates (in a ruling found here) became the first trial judge to significantly limit the power to detain individuals based on their “support” of a terrorist network (as opposed to being an active member). Both the Bush Administration and the Obama Administration had claimed power to hold those who supported terrorist groups, though President Obama’s claim was more limited.

But Judge Bates, in a 22-page opinion in Hamlily v. Obama, 05-763, concluded that detaining an individual who “substantially supports” Al Qaeda or Taliban forces, but is not a part of such a group, “is simply not authorized” by Congress’s post-9/11 resolution (the Authorization for Use of Military Force) “or by the law of war. Hence, the government’s reliance on ’substantial support’ as a basis for detention independent of membership in the Taliban, al Qaeda or an associated force is rejected.”
.....
Bates did not rule out totally any reliance upon a concept of support, however. “Substantial support,” while not “an independent basis for detention,” will be taken into account, he said, in helping to determine who is a “part of” a terrorist organization.

llustrating the point, Bates wrote that “if the evidence demonstraes that an individual did not identify himself as a member, but undertook certain tasks within the command structure or rendered frequent substantive assistance to al Qaeda, whether operational, financial or otherwise, then a court might conclude that he was a ‘part of’ the organization.”

The judge's opinion was very much based on the 2001 AUMF, Common Article 3 to the 1949 GCs and 1977 Additional Protocal II to the GCs (not accepted by the US; but believed to contain some accepted "customary" principles of the Laws of War) - the latter two dealing with non-international armed conflicts (e.g., those involving Violent Non-State Actors). The judge rejected the detainees' arguments based on the Laws of War applicable to international armed conflicts (e.g., those involving Violent State Actors).

The AUMF (http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html) is laconic in defining who we are fighting:


Authorization for Use of Military Force
September 18, 2001

Public Law 107-40 [S. J. RES. 23]

107th CONGRESS

JOINT RESOLUTION
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the `Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Approved September 18, 2001.

Logically, the Legislative and Executive branches would take this bull by the horns, define our enemies and provide a framework on which more specific ROEs as to kill or capture, detain or prosecute, etc., could be built.

Given the ring around the rosey debate concerning what to do with Gitmo, logic is not part of this process. So, the district courts will continue to decide cases using somewhat different standards for detention (this is the fourth), to be eventually settled first by the DC Circuit and then by SCOTUS.

[jmm99]

Mohammed Warsame, a Canadian-Somali, pleaded guilty in Federal District Court, as reported by the Minneapolis Star Tribune (http://www.startribune.com/local/45525582.html):


Minneapolis man pleads guilty to supporting Al-Qaida
Mohammed Warsame, suspected of ties to Al-Qaida and held since 2003, agreed to a plea bargain deal that dropped four of five charges.
By PAM LOUWAGIE, Star Tribune
Last update: May 21, 2009 - 6:36 AM

More than five years after FBI agents first knocked on the door of his Minneapolis apartment, terrorism suspect Mohammed Abdullah Warsame brought an abrupt end to his legal battles Wednesday by pleading guilty to a single charge of conspiring to provide material support and resources to Al-Qaida.
....
Prosecutors described the plea agreement in a news release, saying that Warsame attended two training camps in Afghanistan in 2000, met Osama bin Laden at one camp, and later worked at an Al-Qaida guesthouse and clinic. In 2001, he traveled from Pakistan to Canada, establishing e-mail contacts with several Al-Qaida associates he had met in Afghanistan, the news release said. He sent money to one of his former training camp commanders, it said. After moving to Minneapolis, he maintained e-mail contact in 2002 and 2003 with several people associated with Al-Qaida, the release said.

"This case serves as a reminder of the continuing threats we face as a nation and our resolve to meet those threats," David Kris, assistant attorney general for national security, said in the release.

A spokesman for the U.S. attorney for Minnesota said the office would not comment beyond the news release.

Warsame, a Canadian citizen of Somali descent, is scheduled to be sentenced July 9. He has agreed to be sent back to Canada after his sentence is complete.

This case is an example of the two-pathed trail followed by the USG in AQ-Taliban cases: (1) detention (e.g., at Gitmo or Bagram) for non-resident aliens; and (2) criminal prosecutions for resident aliens and US citizens.

[Boondoggle]

I think this belongs here. The text of the two speeches today, the first by the President, and the second by former Vice-President Cheney. It's too bad the steps weren't taken in 2002 to create the legal framework that the President proposes. His four categories of detainees was well done IMO, and broke down the issue so that it should be understandable by the public.


http://www.nytimes.com/2009/05/21/us/politics/21obama.text.html

http://www.foxnews.com/politics/2009/05/21/raw-data-text-dick-cheneys-national-security-speech-aei/

[jmm99]

Pres. Obama has given us a rare opportunity to critique a legal argument made by the President himself, as opposed to his subordinates at DoJ. Lyle Denniston discusses the speech at SCOTUSblog (http://www.scotusblog.com/wp/analysis-some-hope-for-uighurs/#more-9594) - mostly in the context of the release of prisoners. He focuses on the long-held (and long-ago-cleared) Uighurs.


Analysis: Some hope for Uighurs?
Thursday, May 21st, 2009 8:09 pm | Lyle Denniston
....
Analysis
President Obama has indicated, for the first time, that he feels bound by federal judges’ rulings that 21 of the Guantanamo Bay detainees have a legal right to be released. Seventeen of those detainees, members of a Chinese Muslim minority (Uighurs), now have a case pending in the Supreme Court, to which the Administration is due to reply by May 29 (Kiyemba, et al., v. Obama, 08-1234).

Those 17, plus the other four whose detention is now technically unauthorized, remain at the U.S. Navy prison camp in Cuba.

In a highly significant speech delivered Thursday at the National Archives in Washington, the President did not indicate how he would carry out his pledge. .... [much more by Lyle]

The full text of the address can be found here (http://www.scotusblog.com/wp/wp-content/uploads/2009/05/national-archives-speech-5-21-09.doc).

I have commented on the Uighurs enough for at least one lifetime. What I will address are the five major points of the President's speech defining the various categories of detainees. Presumably, what he said represents the well-considered position of his administration. My perception of this speech is that it is not a model of clarity; and that it will engender some confusion about the administration's primary focus in what is still a developing area of the law.

Following the President's lead, I will not burden my comments with extensive citations of legal authorities. Fear not, they are available if the propositions are challenged.

I will start with the one-sentence lead by the President into his 5 points:


Now, going forward, these cases will fall into five distinct categories.

I suggest there are only two categories of detainees to begin with, both defined under Common Article 3 of the GCs (1977 AP II may or may not be informative in a particular case): (1) persons who were irregular combatants under CA 3 and were captured or surrendered; and (2) persons who were not irregular combatants under CA 3, but otherwise fall within its terms ("Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause ...").

The evidence, at least initially, may be uncertain as to whether a detainee belongs in category 1 or 2.

Those in category 1 may be detained for the duration of the armed conflict - there is no requirement under CA 3 (quoted in full at end of this part) that these detainees be charged criminally, either under domestic law or the laws of war (or LOAC = laws of armed conflict, or IHL = international humanitarian law).

There is a requirement under CA 3 that, if any of the persons in either categories 1 & 2 are charged criminally, they must be tried "by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples".

The same international "due process" requirement (a lesser form of due process than that required under US constitutional law) applies if a detainee claims (1) PW/POW status under GC III (art. 4 et seq); or (2) civilian status under GC IV (art. 4 et seq).

Presumably, many of those in category 2 would claim civilian status - thus, requiring a hearing on that issue if the USG contests that claim. The detainee could also claim (as in the habeas cases) that the minimum standards for detention under CA 3 have not been met (e.g., the Uighurs and a few others who have had success with that argument).

Theoretically, an irregular combatant could claim PW/POW status; but, in the case of AQ-Taliban combatants, that would seem an impossible task because of the interplay between Common Articles 2 & 3 - and the detainee would have to concede that he was a combatant.

The USG has the option to charge a detainee (whether in category 1 or 2) criminally under either domestic law or under the laws of war, or both. That option is not mutually exclusive to continued detention (e.g., if the criminal charge fails and if minimum CA 3 detention proof exists). That option also does not disappear even if minimum CA 3 detention proof does not exist. For example, someone who provided financial support to AQ might escape detention (e.g., under Judge Bates' recent detention standard); but still could be charged under domestic anti-terrorist laws.

--------------------------------------
GC III linked at ICRC (full text (http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e63bb/6fef854a3517b75ac125641e004a9e68)):


Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

[jmm99]

Without the discussion of Common Article 3 set forth above in part 1, the President's five legal points lose clarity.

My primary objection is not to what he said about each individual category; but that his speech leaves the impression (to this observer) that the five categories are mutually exclusive as to any particular detainee.

The speech also gives primacy to the option of charging criminally - in essence, a law enforcement focus (e,g., the Clinton administration approach, which is only part of the solution), which leaves detention as a remedy for leftovers.

We see this in the President's first two points:


First, whenever feasible, we will try those who have violated American criminal laws in federal courts -- courts provided for by the United States Constitution. Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and our juries, our citizens, are tough enough to convict terrorists. The record makes that clear. Ramzi Yousef tried to blow up the World Trade Center. He was convicted in our courts and is serving a life sentence in U.S. prisons. Zacarias Moussaoui has been identified as the 20th 9/11 hijacker. He was convicted in our courts, and he too is serving a life sentence in prison. If we can try those terrorists in our courts and hold them in our prisons, then we can do the same with detainees from Guantanamo.

Recently, we prosecuted and received a guilty plea from a detainee, al-Marri, in federal court after years of legal confusion. We're preparing to transfer another detainee to the Southern District Court of New York, where he will face trial on charges related to the 1998 bombings of our embassies in Kenya and Tanzania -- bombings that killed over 200 people. Preventing this detainee from coming to our shores would prevent his trial and conviction. And after over a decade, it is time to finally see that justice is served, and that is what we intend to do. (Applause.)

This simply states a truism - prosecutions under US criminal laws must be brought in the federal courts. Whether this approach will turn out to be wise, efficient or effective will be seen. It will be most useful to take plea bargains. But, whether cases are pled or tried to conclusion, a problem that may well come up is where a defendant is sentenced to a short term; but still is considered dangerous. After serving that term, can he be re-detained under the President's logic ?


The second category of cases involves detainees who violate the laws of war and are therefore best tried through military commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.

Now, some have suggested that this represents a reversal on my part. They should look at the record. In 2006, I did strongly oppose legislation proposed by the Bush administration and passed by the Congress because it failed to establish a legitimate legal framework, with the kind of meaningful due process rights for the accused that could stand up on appeal.

I said at that time, however, that I supported the use of military commissions to try detainees, provided there were several reforms, and in fact there were some bipartisan efforts to achieve those reforms. Those are the reforms that we are now making. Instead of using the flawed commissions of the last seven years, my administration is bringing our commissions in line with the rule of law. We will no longer permit the use of evidence -- as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify. These reforms, among others, will make our military commissions a more credible and effective means of administering justice, and I will work with Congress and members of both parties, as well as legal authorities across the political spectrum, on legislation to ensure that these commissions are fair, legitimate, and effective.

Again, the use of military commissions to try war crimes is unexceptional - we shall see if the Obama administration's military commissions will try more cases than the three concluded during Bush II.


The third category of detainees includes those who have been ordered released by the courts. Now, let me repeat what I said earlier: This has nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have spoken. They have found that there's no legitimate reason to hold 21 of the people currently held at Guantanamo. Nineteen of these findings took place before I was sworn into office. I cannot ignore these rulings because as President, I too am bound by the law. The United States is a nation of laws and so we must abide by these rulings.

Currently, this category consists of 21 detainees (most of them Uighurs; 4 others have been released to new homes, e.g., Boumedienne to France). So far, this is not a significant issue in terms of numbers.


The fourth category of cases involves detainees who we have determined can be transferred safely to another country. So far, our review team has approved 50 detainees for transfer. And my administration is in ongoing discussions with a number of other countries about the transfer of detainees to their soil for detention and rehabilitation.

According to the President, about 2/3 of the detainees initially detained at Gitmo were released by the Bush II administration. They have had roughly a 14% rate of return to combat. Again, 50 detainees is not a significant issue in terms of numbers - unless you happen to be the one who is zapped by one of the 7 (probable) recidivists.


Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Thus, we will be left with an undetermined number where detention is the last resort - rather than being the default status, as it is under Common Article 3.

One might ask the President who decided to detain the 100s of 1000s of prisoners of war that were detained in WWII and the Korean War. Detention of violent non-state actors under Common Article 3 is simply a cognate, but in the context of a non-international armed conflict.

[Boondoggle]

JMM,

I'm going to have to spend a weekend reading your earlier posts and links to catch up. I do think the President's speech and his 5 categories (yes 5 not 4 oops) has a different audience, mainly selling it to the public and Congress. Your thoughtfull observations are the wheels grinding behind the public face which I don't think would be understood by most people, even in the legal community. To make it easier to understand, and to reflect the political calculus, he has gone with 5. I think these categories reflect the political reality he faces rather than the legal IMO.

I agree with your premise that the President's default position is to focus toward trying and convicting in the courts, however, I think he may be amenable to shifting any individual into path that empasizes tactical, intelligence and national security concerns. In other words long term detentions that are established through the power of the executive and with the approval of the legislative, not the judicial. I don't necessarily think that the fifth category is only a residual one, and in fact, based on national security, intel and tactical considerations, people might be shifted into that category very early after their capture, or with proper planning and coordination, before capture. The first hint will be in what proposed legislation they provide Congress when they ask for the authority to detain people under this category. Then we will know.

After reflecting last night, it seems that the President is intent on eventually moving all but those in categories 3 and 4, into Federal detention facilities. Short of Congress specifically denying the use of any funds to move people from GITMO, I don't see how they can stop him. At that point, Congress will be paying to run an empty facility. He is the head executive, and his branch "owns" those prisons. I think he will call their bluff.

The tricky one in the long run, even if it's smaller in numbers, will be those ordered released by the courts, category 3. We can't continue to hold them forever in prison, yet no country (as of yet) will take them and put them into category 4. At this point its a political question, unless the admin would seek to indefinitely detain them, then it will swing back into the courts.

[jmm99]

from Boon...
I'm going to have to spend a weekend reading your earlier posts and links to catch up.

it's a long weekend - hopefully, the time spent will not be a boondoggle (http://en.wikipedia.org/wiki/Boondoggle_(project)) :) - I didn't know that was a New Deal term. I don't know but I've been told - that Ken White delivered the 1935 newspaper that coined that term. :D

OK, enough nonsense. I'd like to believe that what you say:


Your thoughtfull observations are the wheels grinding behind the public face ...

is close to reality - that is, that the Obama administration has, "behind the public face", a clear policy of how and why it will handle violent non-state actors now and in the future. My perception is that it does not. It may well have one within the year (a prediction by Schmedlap, post #4 (http://council.smallwarsjournal.com/showthread.php?p=72503#post72503)).

I believe that the speech reflects an internal difference of opinion within the administration on whether it should emphasize a detention approach or a law enforcement approach. The first is more "laws of war" based; the second is more "rule of law" based. While this might be something of a center-right vs center-left conflict within the administration, I doubt life within the present White House is that simple.

My suggestion is that the two approaches are not mutually exclusive; and that both may be implemented without doing violence to our Constitution and domestic laws - and to those precepts of international law that have been accepted by the US. Which approach will be taken in a particular case depends on the detainee's status (non-resident alien, resident legal alien or US citizen) and where the detainee is initially nabbed.

In general, for operational and legal considerations, there are two paths:

1. Arrests in US (usually by FBI) will be followed by Federal court prosecutions. Distinctions could be made based on status, but have not been. The Gitmo and Bagram detainees do not fit into this box.

2. Restraint outside of US (usually by military) will usually be followed by detainment (e.g., the Gitmo and Bagram detainees). US citizens and possibly resident legal aliens are an exception (for US constitutional reasons - 2008 unanimous Manuf decision by SCOTUS).

Since the President's speech dealt with the Gitmo detainees (the issues concerning the Bagram detainees are just starting to be addressed), we must of necessity begin with their detentions - and the legal basis for holding them. For that, we have to look at some ancient history (the Bush II approach).

--------------------------------
The Bush II administration was faced with a novel problem when it had to deal with violent non-state actors in the context of an armed conflict (OEF). The Clinton administration had employed only a law enforcement approach in regard to AQ (a few cruise missiles aside). So, Bush II had to break a new trail. Some false starts were made (because of legal novelty, some pre-conceived policy notions and some unexpected court decisions).

Until 2006 Hamdan set the present legal construct, Bush II regarded AQ detainees as being totally outside of the GCs. Their theory was that our conflict with AQ was not one within Common Article 3, nor within any of the other GCs either. As such, the only rules were those made by the Executive branch (together with some Congressional action that generally followed the Bush II construct). Thus, the Bush II lawyers felt there was room for considerable leeway in such things as interrogations, extraditions, conditions of confinement, etc.

The 2006 SCOTUS Hamdan opinion took another approach by looking to Common Article 3's first clause:


In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties ...

OEF was certainly an armed conflict in the territory of a HCP (Astan was a signatory to the GCs). The question came down to what does "international" mean. The Hamdan plurality (and subsequent court decisions) took it to mean "between nations" - as in "international law" (the law between nations).

The Bush II lawyers took a different meaning, reading "international" in CA 3 to mean "transnational" (that is across national borders). Since AQ certainly operates across borders (a transnational violent non-state actor), the armed conflict with it could not be "not of an international character". In justice to John Yoo, there was before Hamdan considerable support for the argument that CA 3 was limited to domestic (non-transnational) violent non-state actors - domestic insurgents.

SCOTUS said "Nope. AQ is not a nation-state. So, an armed conflict with it is an armed conflict not of an international character." QED, in a nutshell.

The same result applies to Taliban detainees, but for different and more complex reasons. They are laid out in this Hamdan thread (http://council.smallwarsjournal.com/showthread.php?t=6118) - which can be added to weekend reading.

The net result is that detainment of AQ-Taliban types is governed at its base by CA 3, which clearly includes detainees among its subject classes:


Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause ...

Common Article 3 has been called a mini-GC, which provides only basic rights to detainees:


To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The long and short of it is that CA 3 (and probably some principles informed by 1977 AP II) constitute the legal basis for detentions at Gitmo and Bagram. Since the Obama DoJ has said that in the current habeas cases, no legal reason exists for the President not saying it - in so many short words.

Why he didn't has to be political (agreed there), simply because CA 3 places no limit on the length of detention; except for the length of the armed conflict. The left (e.g., KO and Rachel on MSNBC) savaged the President last nite for "his adoption" of a policy of unlimited detention - sorry, gentle pundits; that happens to be the binding rule of law. ;)

------------------------------------
That the President's speech will engender confusion amongst the populace (and most lawyers) is demonstrated by:


from Boon...
I don't necessarily think that the fifth category [JMM: long-term detainees] is only a residual one, and in fact, based on national security, intel and tactical considerations, people might be shifted into that category very early after their capture, or with proper planning and coordination, before capture.

Those folks won't be shifted into that category because that has been their category from the gitgo - and a very "legal" one as determined so far by a number of judicial decisions.

There are other collateral points well worth discussing, but this screed is long enough for the present.

Thanks to you all for the interest in this thread (getting near 16000 views); and to the brave souls like Boondoggle who come in to pay visits. :)

PS: Boondoggle - give us some background to the extent you can - this thread (http://council.smallwarsjournal.com/showthread.php?p=72445#post72445), here or somewhere. Helps to evaluate context.

[jmm99]

who indeed feel savaged by the President's recent detainee speech.

So, his head, inscribed "Obama", is apparently destined to repose in GG's (http://www.salon.com/opinion/greenwald/2009/05/22/preventive_detention/index.html) (and others') rogues gallery - next to the head inscribed "Bush".


Glenn Greenwald
Friday May 22, 2009 09:23 EDT
Facts and myths about Obama's preventive detention proposal
[Updated below - Update II (Interview with ACLU) - Update III - Update IV - Update V - Update VI]

In the wake of Obama's speech yesterday, there are vast numbers of new converts who now support indefinite "preventive detention." It thus seems constructive to have as dispassionate and fact-based discussion as possible of the implications of "preventive detention" and Obama's related detention proposals (military commissions). I'll have a podcast discussion on this topic a little bit later today with the ACLU's Ben Wizner, which I'll add below, but until then, here are some facts and other points worth noting: .....
[long series of points and videos]

I'm not going to address any of GG's "legal" points. He and I live in different worlds - in fact, different universes would be more accurate. I'll leave it up to the readers to analyze this far different take on the issue of detaining irregular combatants under Common Article 3 - instead of simply shooting them, as was once the norm before that convention was adopted.

Some of the comments (not far south of 1000) to GG's article also illustrate the "anthropology" of this alternative universe - interesting reading.

Since this post is intended to point readers to the other side of the debate, you might as well read Andy Worthington's views (http://www.andyworthington.co.uk/2009/05/21/my-message-to-obama-great-speech-but-no-military-commissions-and-no-preventive-detention/) on the President's speech.

[Ken White]

about life before October, 1950 that I liked... :D

[jmm99]

from Ken
I KNEW there was something about life before October, 1950 that I liked...

but, as I often have to say to my wife (who is more clever than I by more than half), I don't get it - please explain the significance of October 1950. :confused:

I do remember that timeframe - it was between the surgery fusing my left hip and the surgery fusing my right wrist. It also was the timeframe when we got to cheer you guys heading North to the Yalu in a "police action" that was to be over by Xmas. :rolleyes:

[Ken White]

please explain the significance of October 1950. :confused:The missing LINK (http://www.unhchr.ch/html/menu3/b/91.htm).
It also was the timeframe when we got to cheer you guys heading North to the Yalu in a "police action" that was to be over by Xmas. :rolleyes:Yes. I seem to recall that and I also dimly recall my Platoon Sergeant spewing a number of expletives when asked if that were true...

Not long before that, we had captured some prisoners; said young Staff Sergeant had served in China and said "Nee hao ma" and they responded "Ta ja hao." "They're Chinese," said he. We sent them to Eighth Army. Shortly thereafter, G2 FECOM said no Chinese in Korea. Did I ever tell you how much I despised Adolf Tscheppe-Weidenbach, aka Charles Willoughby... :D

[jmm99]

Actually, the 1949 GCs ("entry into force 21 October 1950" from your link) aren't that bad - and are quite simple if one doesn't complicate them.

Take Common Article 2, in three simple paragraphs:


Article 2

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

1. The 1st para applied to OIF I - armed conflict between 2 or more HCPs.

2. The 2nd para applied to OEF I - Astan (a HCP, but with no government recognized by the US at that time) was partly (majority) occupied by the Taliban, the rest by the Northern Alliance. Does that mean that Article 2 included the Taliban, making the rest of the GCs apply to them ? No, cuz you have to look to the 3rd para.

3. The 3rd para makes it clear that, where a "Power in the conflict" is not a HCP (the Taliban), the Powers who are HCPs are bound only "in their mutual relations" (e.g., if Pstan had entered the fray on behalf of the Taliban, then 2 HCPs would have been in conflict). But, a Power not a HCP can become in effect a "Party to the GCs" by simply accepting and applying the GCs.

Of course, neither the Taliban nor AQ accepted or applied the GCs; and hence could not come under Art. 4 et seq of any of the 4 GCs. They are covered in the 1949 GCs only by Common Article 3, the non-international (not between nation-states) mini-convention.

I can't understand why such as GG and Worthington cannot see that simple logical argument. Perhaps, they are descendants of Big Mac's worthy intel chief, who mistook perception for reality.

[davidbfpo]

A NYT article with all sorts of "leaked" suggestions on current actions by partners against AQ: http://www.nytimes.com/2009/05/24/world/24intel.html?_r=2&th&emc=th

Could fit in several places, but dropped in here.

davidbfpo

[jmm99]

but I have to think a bit before commenting on it. I found it interesting that the "program" started in the last two years of the Bush II administration, and has been continued by the Obama administration. So, much more continuity exists than was assumed by some.

[Boondoggle]

Bourbon posted it in the FBI/CT threat but I think it also fits here: http://www.latimes.com/news/nationworld/nation/la-na-fbi28-2009may28,0,694540.story

We are now seeing the wheels turning on implementing the Presidents strategy that he recently articulated to the public. This popped out at me at the end though:

Two senior U.S. officials said efforts are being made to ensure that intelligence-gathering and law enforcement efforts proceed side by side. They stressed that the CIA and military would continue to play pivotal roles, particularly in gaining strategic intelligence against terrorist groups and thwarting future attacks.

There will be a point in these situations where the need to press them for actionable intel will clash with the line that follows prosecution in civilian courts. While they may start out "side by side" the CIA's role is to provide intel, hopefully the actionable type. The FBI's role is/will be to preserve and provide a prosecutable case. In other words will the traditional role of the CIA of providing intel for proactive measures (figure out might happen) be outweighed at some point by the FBI's traditional focus, and the focus of our civilian criminal system of reactive measures (figure out what happened)? That's going to be a problem IMO, and may be a source of fundamental friction between the two. At some point they're going to have to pick one role to emphasize to the detriment of the other in every case.

The "global justice" initiative starts out with the premise that virtually all suspects will end up in a U.S. or foreign court of law.

I forgot this line. Again, it is open to interpertation, but if they really intend on at least trying to put every bad guy we find on the battlefield, or pick out of an urban scrum of terror networks, into our criminal justice system, bad things will happen. If someone really is thinking about mirandizing OBL etc..., oh my.

[jmm99]

cuz it ties in with the NY Times article cited by David. What we may see is not likely to be some sort of huge sea change - but more likely a reorg of how we approach legal, intelligence and military operations re: violent non-state actors. I need to do a diagram or two to make sense of this, for me and for others.

[davidbfpo]

A fresh allegation against the UK government: http://news.bbc.co.uk/1/hi/uk/8069455.stm . Crucial factor being the presence between torture of MI5 agents questioning him.

davidbfpo

[davidbfpo]

I hesitate to ask whether this 'new' US policy follows the Operation Contest strategy (Pursue, Prevent, Prepare and Protect).

The best single public document on the UK police's experience in CT is the 2007 Colin Cramphorn lecture: http://www.policyexchange.org.uk/images/publications/learning%20from%20experience%20-%20jun%2007.pdf

There are a host of issues involved, as previous threads on Fusion Centres etc have illustrated.

davidbfpo

[jmm99]

from David
I hesitate to ask whether this 'new' US policy follows the Operation Contest strategy (Pursue, Prevent, Prepare and Protect).

No.

Since I am not within the Obama White House, I am guessing as much as anyone. My guess is that it (OWH) is regularizing ("cleaning up") Lines of Effort, for a number of reasons. I'd expect that Jim Jones and Bob Gates are involved; plus those more directly involved at DoJ. When taking office, Pres. Obama set a 6 month to 1 year timeline for review of our policies re: transnational violent non-state actors. I'd say we are seeing some of that being floated for reactions; possibly a more definitive policy by year end.

[jmm99]

the attached chart necessarily over-simplifies things to fit them within a 3.5" frame - and I am aware of the post-9/11 reorgs in the intelligence community (so, "CIA" in the chart includes some other alphabet soup pieces).

The chart shows flows available under US law for the dispositions of VNSAs (Violent Non-State Actors) - "terrorists" if you want; but VNSAs (including its domestic and transnational species, DVNSAs and TVNSAs) are a broader category (e.g., could include criminal gangs).

The FBI-DoJ flow chart corresponds most closely to the Euro-construct re: terrorists (essentially a law enforcement approach). The FBI-DoJ has a law enforcement and prosecution charter, both intra- and extra-territorial (the latter subject to limitations), as well as a traditional counter-espionage charter - which has been extended to counter-terrorism. Obviously, other agencies feed into all of this.

The normal flow is investigation, arrest (or acceptance by traditional extradition or rendition), interrogation (the exact limits of which to alien VNSAs has not really been established to date), pre-trial detention, indictment and trial - all under the FRCrimP (Federal Rules of Criminal Procedure). Constitutionally, this is an Article III process (with possible distinctions between US citizens, for which it is mandatory; lawful resident aliens, unlawful resident aliens and non-resident aliens). Intelligence and counter-intelligence feeds into FBI-DoJ can come from other agencies (e.g., CIA).

The CIA, though primarily chartered for intelligence collection and analysis, has always been a tool for Presidents to assign OSS-type missions. The point to the flow chart is that, despite extraordinary renditions, "CIA prisons" and interrogations, eventually a VNSA will end up in either FBI-DoJ or DoD custody. The add-on special missions for the "CIA" have not been totally scrapped - they remain as options "on the table", as they say. Obviously, the Obama administration has shifted gears, from the CIA taking direct actions, to more co-operation with foreign law enforement and intelligence agencies, with the FBI in the foreground and the CIA in the background. J. Edgar Hoover must be happy with that; although this approach will have to take into account that foreign agencies have their own ROEs.

To this point, we have considered the first two rows on the chart - which, given the Obama administration's apparent present direction, is not that different from the Euro-construct - and the UK program.

Where the US differs from most of Western Europe is the alternative flows (last two rows) based on AUMF powers, defining the existence of an armed conflict and bringing into play LoW-LoAC (Laws of War, Laws of Armed Conflict) principles. Those include the right to kill or detain, at any time and any place (subject to various I Law limitations accepted by the US), based on whether the target or detainee fits the status definitions fixed by the AUMF (the point and only point of the habeas cases). There is no way that the Obama administration will give up the AUMF powers, as evidenced by the missile strikes and targeted killings this year.

Once the VNSA is in DoD detention, we have seen three avenues (besides release), where continued detention is the default, despite Pres. Obama placing it last on his list:

1. Continued detention - on which, the AUMF and GC CA 3 place no time limit if the status detention standard is met.

2. Referral to a military commission under the MCA, War Crimes Act and other statutes.

3. Referral to the FBI-DoJ for processing via its default process, ending in trial and appeal before the Article III courts.

The proposed National Security Court would add a fourth avenue (with changes to the present flows, but probably not the end results).

Hope this helps as a basis for discussion - albeit a bit simplified.

-------------------------
PS: I hesitate to ask (;) ) could it be that, because the UK approach has fewer options than the US has & ends up with the accused in a regular UK court, that it has had to tune up its intelligence and counter-intelligence functions to a higher level ? Just a thought. :)

[jmm99]

In the Gitmo habeas cases, each detainee files a petition (stating why he should be released); and the government responds with a return (why he should not be). For security reasons, the returns should contain no classified data. Judge Hogan is managing over 100 cases, which will be returned to other judges for merits hearings (where both unclassified & classified evidence may be entered - the latter being sealed, etc., as we have seen).

Today, Judge Hogan entered a continuation order and opinion (http://www.scotusblog.com/wp/wp-content/uploads/2009/06/hogan-on-gtmo-returns-6-1-09.pdf) to his prior case mamagement orders, allowing limited access (http://www.scotusblog.com/wp/opening-the-detainee-files/) to the DoJ returns:


Opening the detainee files
Monday, June 1st, 2009 1:16 pm | Lyle Denniston
.....
The returns at issue in Judge Hogan’s order are not made up of government secrets. In fact, they were supposed to contain only unclassified material. But the government, fearing that some secrets may have made their way into the documents, asked Judge Hogan to treat every one of the “factual returns” as if it were under a “protected” seal, and thus not publicly available. The government sought to keep all of those files undisclosed until it could produce public versions, but made no commitment on when that would occur.

Judge Hogan denied that request, finding that Justice Department lawyers have “failed to provide a court with a sufficient basis for withholding the unclassified information in these cases.” Instead, he gave the government an option: by July 29, it must produce for each habeas case either a public document with nothing in it that remains classified, or else file it with the District judge assigned each habeas case in a private filing using a colored marker to indicate the exact words or lines it wants to shield from public view, along with an explanation for each word or line. That judge will then decide whether to protect those words or lines from publice disclosure.

This order will be spun in different ways by the media - left and right.

[Boondoggle]

JMM,

I'd hope this wouldn't (couldn't) be spun by either side, though I'm sure it will. It seems a pretty simple decision and I would not think the government would spend much, if any ammo, in fighting it. While I'm very concerned about how intel and other security information is handled, I think the public has some basic right to know the general reasons for their detention, especially considering the length of time they have been held now. I can't see much, if any, practical reason to not go forward with this minimal, unclassified, release.

[jmm99]

violent agreement.

I expect this is a hangover from prior practice, where DoJ fought the release of everything - and also did a sloppy job of screening the facts included in their returns. So, it is possible that some of the returns do have classified information. Judge Hogan (basically center-right if I had to judge his politics) has bent over backwards in the past to give the DoJ time to answer discovery requests and to check its submissions for classified data. So now, DoJ has another 6 weeks + to put its pleadings in order.

A cynic might suggest that DoJ is simply doing a bit of delaying action to allow the Obama administration to complete its review of the Gitmo detainees before Judge Hogan returns the cases to the various judges for merits hearings. :)

[jmm99]

WTF - Lawyers squabbling (http://www.alertnet.org/thenews/newsdesk/N01592726.htm) - unheard of ......


Guantanamo court resumes with squabbling lawyers 01 Jun 2009 23:30:10 GMT
Source: Reuters
* Canadian defendant fires most of his military lawyers

* Obama team still sorting Guantanamo prisoners

* Chinese prisoners hold impromptu protest (Updates to add Washington ruling, prisoner protest)

By Jane Sutton

GUANTANAMO BAY U.S. NAVAL BASE, Cuba, June 1 (Reuters) - The Guantanamo war crimes court wheezed back into session long enough on Monday to allow a young Canadian defendant to fire most of his squabbling U.S. military lawyers.

In the first session since President Barack Obama took office in January, defendant Omar Khadr told the military judge he could no longer trust his Pentagon-appointed defense lawyers because they had been fighting among themselves for months.

"They've been accusing each other and pointing fingers at each other ... I want to erase all of them," said Khadr, who is accused of killing a U.S. soldier with a grenade during a firefight in Afghanistan seven years ago.

His lawyers would not discuss specifics but said they disagree on what is in Khadr's best interest.

The judge let Khadr fire all but one of them until his Canadian advisers can help him choose a permanent replacement. ....

This is actually a serious case - murder; with quite a few twists and turns, which have been reported here.

As to the delay question, the administration's delay request to the military judges is starting to push up against the targeting closing date for Gitmo:


Obama has ordered the Guantanamo detention operation shut down by January 2010 and asked military judges to freeze the pending trials for 120 days to give his administration time to decide how to proceed.

The freeze expired and prosecutors have asked for another 120 days' delay as the Obama team sorts out which of the 240 Guantanamo prisoners should be tried, where and how. ....

And the Uighurs chant .... "We want out" (not quite, but that's what we used to chant whenever Mother Superior kept our whole class for detention):


And in another part of the Guantanamo camp, a group of prisoners who have been ordered freed by the U.S. courts held an impromptu news conference to express their frustration at still being held.

Journalists are not allowed to speak to prisoners or record their voices, but the Chinese Muslim captives known as Uighurs used newly issued sketchbooks and art supplies to make a book of protest signs. One held the book while another flipped the pages for reporters to read through a razor-wire topped fence. ...

[davidbfpo]

Now sometime ago in '09 Binyam Mohammed's case caused the UK High Court to comment on the refusal of the UK government to release documents requested by the defence.

Came across a reference dated 19th May '09 that 'On Friday, Foreign Secretary David Miliband signed a new demand for a gagging order, arguing that publication of the High Court judges‘ summary would cause irreparable harm to Britain‘s relationship with America'.

Nothing on the BBC News to verify, although there was a High Court hearing on 21st May, see link: http://www.independent.co.uk/news/uk/crime/legal-fight-for-release-of-terror-douments-1689763.html

davidbfpo

[davidbfpo]

Several reports and here is the BBC: http://news.bbc.co.uk/1/hi/world/americas/8091013.stm . Suspect for 1998 embassy bombings arrives for trial, note captured in 2004 in Pakistan.

davidbfpo

[Boondoggle]

Several reports and here is the BBC: http://news.bbc.co.uk/1/hi/world/americas/8091013.stm . Suspect for 1998 embassy bombings arrives for trial, note captured in 2004 in Pakistan.

davidbfpo

Strange how we could just suddenly "appear" in Pakistan eh? I'm sure he was just visiting.

I don't want to speak to the merits of the evidence we've got on this guy that we can actually use in Federal Court, I'm assuming (always a dangerous thing to do) that it's an exceptionally strong case, but I think what this is, is step one. The first step in the President transferring all the GITMO prisoners to US prisons that will be in 3 categories. 1) The ones to be tried in civilian courts 2) the ones to be tried by commissions 3) the ones who will be held until the end of hostilities. Basically the President is saying "they're my prisons, my prisoners, stop me. As for those who have been ordered release, I've got no clue where they're ending up, but it won't be in mainland US prisons. So basically Congress has two choices, yell, scream and do nothing. Two, withhold funding for transferring prisoners from GITMO. I'll bet on the former.

[jmm99]

is one of 14 detainees who were held at various "undisclosed locations" before being transferred to Gitmo. His Wiki is here (http://en.wikipedia.org/wiki/Ahmed_Khalfan_Ghailani).

The indictment, which is long-standing and includes multiple defendants (e.g., UBL, Zawahiri, etc.) involved in the Embassy Bombings, is here (http://cns.miis.edu/pubs/reports/pdfs/binladen/indict.pdf).

Some comments about and from Ghailani in a WP article earlier this year (http://www.washingtonpost.com/wp-dyn/content/article/2009/02/15/AR2009021501955_pf.html) by Peter Finn:


He was indicted in New York before the Sept. 11, 2001, attacks, and four of his named co-conspirators are already serving life sentences in a supermax prison in Colorado.

In the months leading up to the attack in Tanzania, Ghailani obtained and stored bomb materials, scouted the embassy and escorted the Egyptian suicide bomber from Kenya to Dar es Salaam, the Tanzanian capital, according to a federal indictment and a charging document at Guantanamo Bay.

The diminutive Ghailani was known to some of his confederates as "Fupi," Swahili for "small," and he bicycled around Dar es Salaam to obtain bomb components because he couldn't drive, according to U.S. investigators. The bombing killed 11 people, all Africans, and a simultaneous blast in Nairobi, Kenya, killed 213 people, including 12 Americans.

The former Islamic cleric now presents himself as a contrite and exploited victim of al-Qaeda conspirators.

"I would like to apologize to the United States government for what I did before," said Ghailani at a hearing at Guantanamo Bay. "It was without my knowledge what they were doing, but I helped them."

[George L. Singleton]

David:

This in my humble view is one of your best posts yet. I hope others will take the time to read over the click on postings.

Myself, I find law professor Allen S. Weiner, topic HAMDAN, TERROR, WAR, to be absurd. He attacks the current sitting US Supreme Courts series of decisions in recent years, since 911 as wrong, and only "he" a mere law professor is "right."

It is useful of course academically to have all points of view but we operate our US legal system based on legal precedents, as the pending confirmation hearings on Judge Sotomeyer demonstrates...not based on some crack pot indivudual, singular professors views of what the law is or is not or ought to be "in his singular opinion."

Keep up the excellent postings.

[wm]

Interesting find from Spiegel Online (http://www.spiegel.de/international/world/0,1518,629669,00.html):


Seventeen Guantanamo inmates of Uighur origin may soon be leaving Cuba for Palau after the remote Pacific island nation announced its willingness to take the detainees. The Uighurs, refused by Germany, will encounter "paradise" there, said one Palau representative.

The tiny Pacific island nation of Palau has stepped in to help in the tricky question of where 17 Guantanamo inmates of Uighur origin are to go when the camp closes.

[Boondoggle]

for the President to find a solution to, were those who had been ordered by the courts freed, but whom were impossible to resettle in their native country or in the U.S. I'm sure the $$$ is just a coincidence. My earlier smart @$$ed prediction of Johnston Atoll isn't that far off the mark after all.

NY Times here: http://www.nytimes.com/2009/06/10/world/10palau.html?hp

Now I predict the President will forge ahead, slowly at first, with the removal of prisoners from GITMO to U.S. facilities.

That still leaves the group in Bagram for another day.

[jmm99]

Palau (http://en.wikipedia.org/wiki/Palau) was formerly part of the US-administered Trust Territory of the Pacific Islands (TTPI (http://en.wikipedia.org/wiki/Trust_Territory_of_the_Pacific_Islands)), which now is in free association with the US. As they say, nothing comes for free.

[SWOTriathlete]

We could always BRAC GITMO and just leave them there for the Cubans...

[jmm99]

BRAC (http://www.brac.gov/) out of Base Closure and Realignment is beyond me - Base Realignment and Closure would be a better match. Obviously, I'd make a poor alphabet soup chef.

SWOTriathlete, you might want to introduce yourself a bit more - thanks.

[Boondoggle]

4 Uighars now enjoying the view of the Atlantic from Bermuda. Somehow this all reminds of the search for a permanent home for Napoleon. Hopefully more St. Helena and less Elba.

http://www.foxnews.com/politics/2009/06/11/officials-uighur-detainees-guantanamo-sent-bermuda/

[jmm99]

OK, 4 on Bermuda and perhaps the rest on a Palauan islet - so, SCOTUS probably will not have to make a decision at its 25 Jun conference (http://www.scotusblog.com/wp/four-uighurs-leave-guantanamo/).


Four Uighurs leave Guantanamo
Thursday, June 11th, 2009 10:03 am | Lyle Denniston
.....
The Supreme Court is currently scheduled to consider the Uighurs’ case at a private Conference on June 25. If all are transferred before then, however, the case is likely to be dismissed without a ruling on whether the courts have any authority to order release of Guantanamo prisoners into mainland U.S. to live, even temporarily. The D.C. Circuit Court ruled that there is no judicial power to do that.

Twice before — once during the Bush Administration, once during the Obama Administration — the government has headed off Supreme Court review of a detainee case by moving the individual out of detention into civilian custody, for criminal prosecution in the regular federal court system on terrorism-related charges. (The cases were those of Jose Padilla, a U.S. citizen, and Ali Saleh Kahlah al-Marri, a Yemeni national who was living in the U.S. as a pemanent resident alien. Padilla has since been convicted after a trial and Al-Marri has pleaded guilty.)

It is interesting to speculate as to what politics may (repeat, may) be involved here. To date, the Federal courts have been very averse to becoming involved in the disposition of Gitmo detainees (and Bagram is an even greater stretch). So far, review in habeas has been limited to whether there is a preponderence of evidence to hold detainees under the AUMF and Common Article 3. A fair probability is that SCOTUS would affirm the DC Circuit and hold that there is no judicial power to order detainees brought to the mainland US. That holding could be spun as supporting the view that detainees should not be brought to the mainland US for any purpose (including trial or imprisonment).

[jmm99]

does the right hand know what the left hand is doing ?

OK, Gitmo is to be closed on or about 1 Jan 2010 (roughly 6+ mos hence by my calendar). As part of that process, the Obama Administration’s Detention Task Force is assembling files on every prisoner remaining at the Navy prison in Cuba - a prerequisite to whether they should be released, transferred to US or elsewhere, or tried in Federal court.

In a hissy fit between the DoJ, detainees' lawyers and Judge Hogan, the legal question was access to the task force files (http://www.scotusblog.com/wp/government-rebuffed-on-detainee-files/). In the course of the argument, this exchange between the judge and the DoJ attorneys:


Government rebuffed on detainee files
Wednesday, June 10th, 2009 9:26 pm | Lyle Denniston
....
Hogan also suggested that the government’s fears of delaying the task force process were exaggerated. In fact, he said, the government could have complied earlier with the other judges’ orders, and not taken the extra time to seek the consolidated order.

Second-guessing the government’s estimate that it would take up to a year to satisfy all of the requests for information from the task force, Hogan said it could be done in six weeks if the government hired enough lawyers to process them.

Hogan reminded the government that the courts’ time demands were as heavy as those on the government and the task force.

If a year is required to assemble task force information, how does that square with a 1 Jan 2010 closure ?

-----------------
A second right hand - left hand lack of co-ordination was raised by Mike Rogers (http://www.foxnews.com/politics/2009/06/10/lawmaker-says-obama-ordered-fbi-read-rights-detainees/):


U.S. Lawmaker Says Obama Administration Ordered FBI to Read Rights to Detainees
The move is reportedly creating chaos in the field among the CIA, FBI and military personnel, according to Rep. Mike Rogers, R-Mich.
FOXNews.com
Thursday, June 11, 2009
....
A senior Republican on the House Intelligence Committee is accusing the Obama administration of quietly ordering the FBI to start reading Miranda rights to suspected terrorists at U.S. military detention facilities in Afghanistan.

The move is reportedly creating chaos in the field among the CIA, FBI and military personnel, according to Rep. Mike Rogers, R-Mich. The soldiers, especially, he says, are frustrated that giving high value detainees Miranda rights -- the right to remain silent, the right to an attorney -- is impeding their ability to pursue intelligence on the battlefield, according to a story first reported by the Weekly Standard.

"What I found was lots of confusion and very frustrated people on the front lines who are trying to, well, make Afghanistan successful for the United States and its allies," said Rogers, who serves on the House Intelligence Committee. ... [more in story]

Rogers usually does not go off half-cocked.

So far as I know, the Federal courts have not held that AQ-Taliban detainees have to be given Miranda warnings - nor do any DoD guidelines for detainees.

[Boondoggle]

JMM,

I watched the live feed of Gen Patreaus at CNAS this morning. Fox News asked about the miranda issue. He stated that the FBI is only doing that for selected prisoners. He implied that the vast majority were not being run through the process that could lead to Federal criminal prosecution. He did throw his support behind the work of the FBI. It'd be interesting to know what criteria they use to decide who gets the FBI treatment and who gets DoD or even CIA detentions? I wonder how many and who they are prepping for prosecution?

As to the political questions you raise, it's completely at its core political. This is a war, not a criminal enterprise, though they may be committing crimes in the direction of their war against. War being a continuation of political means, ultimately these are political questions, even if the courts have a role to play. To put it bluntly, I just finished the recent biography of Andrew Jackson where he (allegedly) scoffed at John Marshall and rhetorically stated "now that he has issued his judgement, have him enforce it!".

[jmm99]

from Boon...
I wonder how many and who they are prepping for prosecution?

From what the DoJ was telling Judge Hogan, we'll know in about a year or so - oops, that was only the Gitmo detainees they were speaking of - and the Miranda flap had to do with Bagmo.

I haven't the foggiest answer to your question. Does someone in DoJ ?

[Boondoggle]

More along my theory that the President has decided to implicitly tell Congress "go ahead and stop me". Political reality seemed to make them realize no way the uighars could come to the US, so he sends 4 to Bermuda... without telling the British government first. That had to be an interesting conversation between Clinton and Miliband.


British officials, however, expressed displeasure that they were not consulted about the transfer. A Foreign Office spokesperson in London questioned "whether this falls within [Bermuda's] competence or is a foreign affairs or security issue for which the Bermuda Government do not have delegated responsibility."

Secretary of State Hillary Rodham Clinton later discussed the matter with Foreign Secretary David Miliband to assuage British concerns.


http://www.washingtonpost.com/wp-dyn/content/article/2009/06/11/AR2009061101210.html?hpid=topnews

[jmm99]

said Judge Colleen Kollar-Kotelly, as to the Guantanamo Review Task Force, which is make recommendations as to Gitmo detainees' future processing, and its Review Panel, which is to decide whether those recommendations should be implemented; both operating pursuant to Executive Order No. 13,492.

Judge Kollar-Kotelly's order (http://www.scotusblog.com/wp/wp-content/uploads/2009/06/ckk-order-6-15-09.pdf) is brief:


ORDERED that Respondents’ counsel shall have an affirmative obligation to ascertain whether the Guantanamo Review Task Force has made any recommendations regarding the disposition of Petitioners and, if it has, to notify the Court of the same. If a recommendation regarding the disposition of Petitioners has been made, Respondents’ counsel shall also have an
affirmative obligation to ascertain whether the Review Panel has made any decisions in connection with the recommendations and, if so, to notify the Court with the results of such decisions; it is further

ORDERED that the obligations imposed on Respondents’ counsel pursuant to this Order shall be immediate and ongoing.

Judge Kollar-Kotelly (see official bio (http://www.dcd.uscourts.gov/kotelly-bio.html) and Wiki (http://en.wikipedia.org/wiki/Colleen_Kollar-Kotelly)) is just ending her 7-year term as the Presiding Judge of the United States Foreign Intelligence Surveillance Court.

[jmm99]

The first topic is the upcoming trial in Federal District Court (Southern District of New York ) of Ahmed Khalfan Ghailani, the Embassy Bomber, in this NY Times report (http://www.nytimes.com/2009/06/17/nyregion/17gitmo.html?_r=1&partner=rss&emc=rss&pagewanted=all).

The report's focus was mostly on three issues: (1) legal representation; the two JAG officers who represented Ghailani at Gitmo will probably assist in the proceedings; but two civilian lawyers (one a death penalty specialist) will take the lead; (2) death penalty (whether the DoJ will seek it - still undertermed); and (3) enhanced interrogations and torture allegations by Ghailani (still undetermined).

However, another issue was raised - timely trial - but very briefly:


Judge Kaplan also cited one lawyer’s suggestion that the charges be dismissed on grounds that Mr. Ghailani’s rights to a speedy trial were violated.

“It has certainly occurred to me that that is going to be an issue in this case,” the judge said. He added that he hoped to have the case tried some time next year — if it goes to trial.

The issue of timely trial would seem applicable to all Gitmo detainees brought before the Federal District courts to face criminal charges. Here are Judge Kaplan's brief bio (http://www.fjc.gov/servlet/tGetInfo?jid=1226) and Wiki (http://en.wikipedia.org/wiki/Lewis_A._Kaplan). The Obama administration may find that there are unexpected pitfalls in bringing these cases in Federal District courts as ordinary criminal cases.

------------------
The next topic is the NY Times database of Gitmo detainees (http://projects.nytimes.com/guantanamo), which you can search if interested.


The Detainees

Of the 779 people who have been detained at the United States military prison at Guantánamo Bay, Cuba, 544 have been transferred and 229 remain, according to analysis by The New York Times of documents from the Department of Defense. In addition, six detainees died while in custody. This interactive database includes information about the detainees, thousands of pages of government documents and links to court records and news media reports.

E.g., here are the pages for transferred (http://projects.nytimes.com/guantanamo/detainees/transferred), held (http://projects.nytimes.com/guantanamo/detainees/held) and died (http://projects.nytimes.com/guantanamo/detainees/dead) - as to the last, all died at Gitmo during 2006-2009.

This is an interesting database (which I've mentioned before); and it gives you the original sources - which can be searched. For example, my search for Ghailani (http://projects.nytimes.com/guantanamo/search/ghailani) yielded three categories:


Ahmed Khalfan Ghailani
Ahmed Khalfan Ghailani is a citizen of Tanzania. He was captured in Pakistan in July 2004. He is one of 16 high-value detainees. He was transferred to the United States on June 9, 2009.

Documents for Ahmed Khalfan Ghailani
Ahmed Khalfan Ghailani is a citizen of Tanzania. He is one of 16 high-value detainees. He was transferred to the United States on June 9, 2009.

Documents for Mohammad Ahmed Abdullah Saleh al Hanashi
Mohammad Ahmed Abdullah Saleh al Hanashi was a citizen of Yemen. He died at Guantánamo on June 1, 2009.

The first two lead to many pages of Ghailani records. The third item (al Hanashi) leads to three records (http://projects.nytimes.com/guantanamo/detainees/78-mohammad-ahmed-abdullah-saleh-al-hanashi/documents/search?document_query=ghailani) of this now dead man, where Ghailani ID'd him:


“Ghailani identified the detainee as being present at the al-Faruq Training Camp in Afghanistan where he underwent basic training in 1998 to 1999 before moving on to the front lines in Kabul, Afghanistan.”

“Ghailani is a Tanzanian al-Qaida operative who has been indicted in the 1998 U.”

This is a neat feature by the Times (so, hat tip).

-----------------------------

My first appearance in a courtroom was in the Southern District - roughly 40 years ago. At that time, the Twin Towers were being constructed.

[Boondoggle]

including one/some related to speedy trial, that can presumably be employed across the board..... talk about a massive monkey wrench.

In fact at that point, I wonder if the Admin would scramble to get people back out of the country.... and I wonder how quick their attorneys would move to stop that. To get any senior detainees released on American soil for technical reasons is a worst case scenario for the President. I think they could survive a couple jury defeats (depending on who it was) but to lose that way would open them up to bipartisian attacks across the board, especially from the district(s) where they might get released.

I also wonder if with these types of signals, maybe the hold off on bringing anymore over until they clear these hurdles.... just in case?

[jmm99]

If a Gitmo detainee has a habeas case pending before the DC District or Circuit courts (not all Gitmo detainees are signed up for habeas review), an order prohibiting his transfer from Gitmo (to the US or elsewhere) is probably in effect. See posts #92 (http://council.smallwarsjournal.com/showpost.php?p=57206&postcount=92) and #93 (http://council.smallwarsjournal.com/showpost.php?p=57207&postcount=93) for discussion of one such order.

I expect that any bad results re: the speedy trial issue would be blamed on the Bush II administration - jury defeats (not likely IMO) would be the Obama administration's problem.

Somehow, I cannot envision any added detainees being brought to Gitmo.

As to Ahmed Khalfan Ghailani, who obviously was transferred to US soil, he had no habeas case filed that I could find. So, a no-transfer order would not apply in his case.

----------------------

Is it irony (or something else) re: the flap about transfer (to the US or elsewhere), where the courts in many cases have entered no-transfer orders.

[Boondoggle]

JMM, thanks for pointing out the habeas order. If I knew that at one time, I had forgotten it. As for the speedy trial, I think the blowback would be that the President unfairly hazarded his detention by unecessarily sending him to a criminal trial instead of continuing to detain him under other authority. I think the old lawyer's adage of "never ask a question that you don't already know the answer to" is at play here. Unless you know you can get this case to a jury with good facts, why hazard going to trial in the first place as long as you have other options? JMO.

[Boondoggle]

http://www.chicagotribune.com/news/local/chi-iraq-soldier-executionsjun18,0,3984420.story

Sentence reduced from life to 20 years with parole possible after seven. I don't recall the facts of the underlying case in enough detail to say more.

[jmm99]

from the Chi Trib reporting the conviction (http://archives.chicagotribune.com/2009/feb/21/local/chi-soldier-murder-trial-21feb21).

Besides the E5 (Leahy), also involved were (from Boon's link):


Master Sgt. John E. Hatley, 40, of Texas, and Sgt. 1st Class Joseph P. Mayo, 27, of North Carolina -- as well as two others pleaded guilty or were convicted. All were from the Army's 1st Battalion, 18th Infantry Regiment.

"MSG" (I suspect 1SG is more accurate) Hatley was among the SGM selections (http://www.armytimes.com/news/2008/08/army_sgtmajselections_081908w/) last August.

This case seems to be a tie-in with the 2007 hissy fit between the New Republic and the Weekly Standard, etc., re: an article by Scott Thomas Beauchamp (Wiki, with sources (http://en.wikipedia.org/wiki/Scott_Thomas_Beauchamp_controversy)), as summarized by a blogger last year, of 27 Aug (http://www.moonofalabama.org/2008/08/first-sgt-hatle.html) and 2 Oct (http://www.moonofalabama.org/2008/10/first-sgt-hatle.html), 2008.

Pete Newell devoted his thesis to a discussion of this general problem (not this particular incident), which you will find linked here (http://council.smallwarsjournal.com/showpost.php?p=72579&postcount=22). COL Newell's thesis has the ironic (in light of this case) title: "Preparing the strategic sergeant for war in a flat world: Challenges in the application of ethics and the Rules of Engagement (ROE) in joint / multinational / multicultural operations". Unlike the media spin artists, COL Newell proposes some solutions.

Bad case - what else can you say ?

---------------------------
PS: agreed as to this:


I think the old lawyer's adage of "never ask a question that you don't already know the answer to" is at play here. Unless you know you can get this case to a jury with good facts, why hazard going to trial in the first place as long as you have other options?

Of course, neither one of us ever asked a question without knowing the answer - and never, ever asked one question too many. :D

[jmm99]

who was held at Gitmo until late 2007, when he was transferred to a Saudi terrorist rehab program; who was declared rehabilitated, and then jumped over the border to Yemen, where he again became an AQ officer. As reported in this thread at post #173 (http://council.smallwarsjournal.com/showpost.php?p=65221&postcount=173).

Now, we have this from FOX (http://www.foxnews.com/story/0,2933,527868,00.html):


Slaughter of Foreigners in Yemen Bears Mark of Former Gitmo Detainee, Say Experts
Saturday, June 20, 2009
By Jana Winter

The fate of three of nine foreigners abducted in Yemen last week is known — their bodies were found, shot execution style. The whereabouts of the other six — including three children under the age of 6 — remain a mystery.

But terrorism experts say their abductors and killers are almost certainly not a mystery. They say the crimes bear the mark of Al Qaeda, and they fear they are the handiwork of the international terror organization's No. 2 man in the Arabian Peninsula: Said Ali al-Shihri, an Islamic extremist who once was in American custody — but who was released from the U.S. detention center in Guantanamo Bay, Cuba.

And if al-Shihri is behind the gruesome murders and abductions, they say, it raises grave concerns that the scheduled January 2010 closing of the Guantanamo prison and the release of most of its prisoners to foreign countries will galvanize Al Qaeda and compromise American national security.

The nine foreigners — four German adults, three small German children, a British man and a South Korean woman — were abducted on June 12 after they ventured outside the city of Saada without their required police escorts, according to a spokesman from the Yemeni Embassy in Washington. Days later the bodies of Rita Stumpp and Anita Gruenwald, German nurses in training, and Eom Young-sun of South Korea were found shot execution style in the Noshour Valley in the province of Saada, an area known to be a hotbed of Al Qaeda activity. [much more in story] ...

It is ironic that Germany (not necessarily these 7 German innocents) has taken the lead legally (including some abortive legal proceedings) against the US position that AQ-Taliban can be detained under the Laws of War.

-------------------------------
His records are in the NY Times database here (http://projects.nytimes.com/guantanamo/detainees/372-said-ali-al-shihri).

From 10 Dec 2004 CSRT - "The detainee is AQ and a Taliban associate." (giving reasons).

From 16 Jun 2005 CSRT - Gives pro & con reasons for detention (con reasons based on detainee's claims) - pros outweigh cons.

From 31 Mar 2006 CSRT - Similar to prior, but added reasons for continued detention - pros outweigh cons.

From 5 Jun 2007 CSRT - Reasons for continued detention are reduced by half (no reason for reduction given); reasons for release are the same as in previous.

From 13 Jun 2007 CSRT (separate record (http://graphics8.nytimes.com/packages/images/guantanamo/pdfs/ISN372_DecisionMemo2007_OCR.pdf)) - All material portions are redacted, including the decision itself.

This process in this case stinks. Period. So does the result we know today.

[Ron Humphrey]

Now, we have this from FOX (http://www.foxnews.com/story/0,2933,527868,00.html):


Is that if history is any indicator there's a good chance one or more of those kids they haven't found are gonna show up in 3-5 years(if not sooner) brainwashed, hyper indoctrinated and fit to blow:mad:




This process in this case stinks. Period. So does the result we know today.

Amen to that

[jmm99]

The initial AP story (http://www.foxnews.com/story/0,2933,526340,00.html) (15 Jun 2009) had all 9 hostages killed, but so stated by the old stand-by Mr Anon:


9 Abducted Foreigners, Including 3 Children, Found Dead in Yemen
Monday, June 15, 2009

SAN'A, Yemen — Nine missing foreigners in Yemen have all turned up dead, a Yemeni official said Monday, apparently executed by their kidnappers in the impoverished nation in the Arabian peninsula.

The nine foreigners, including seven German nationals, a Briton and a South Korean, disappeared last week while on a picnic in the restive northern Saada region of Yemen.

The official, who spoke on condition of anonymity because he was not authorized to speak to the press, announced the discovery of the remaining six bodies Monday after three others had been found mutilated earlier in the day. .....

Whichever the facts once all this comes out, analysis of this result does not change qualitatively.

Here are two reactions from the Kingdom, here (http://www.saudigazette.com.sa/index.cfm?method=home.regcon&contentID=2009012927911) and here (http://www.saudigazette.com.sa/index.cfm?method=home.regcon&contentID=2009012627660):


Al-Oufi, Al-Shihri betrayed our trust: Families, friends
By Abdullah Al-Oraifij and Khaled Al-Shalahi

RIYADH/MADINA – The family members and friends of ex-Gitmo detainees, Muhammad Al-Oufi and Sa’eed Al-Shihri, who resurfaced last week in Yemen as Al-Qaeda operatives despite having undergone a rehabilitation program in Saudi Arabia, have denounced them as “irreversible deviant members of society.”

Al-Oufi’s family has accused his “bad” compatriots of dragging him once again to the abyss of terrorism. After his return from Guantanamo where he spent seven years, Al-Oufi swore that he would never return to the deviant thought, his family said.

and


Shihri’s father damns him for returning to Al-Qaeda
By Abdullah Al-Oraifij

RIYADH – The father of ex-Gitmo detainee Sa’eed Al-Shihri who has seemingly surfaced in Yemen as a senior Al-Qaeda operative despite having had undergone a rehabilitation program in Saudi Arabia, says his son “is a deviant member of society who must be removed.”

Not sure what dad means by "removed" - probably different from my thoughts (which today are not in a be kind to maneaters mode).

[Blackjack]

The initial AP story (http://www.foxnews.com/story/0,2933,526340,00.html) (15 Jun 2009) had all 9 hostages killed, but so stated by the old stand-by Mr Anon:



Whichever the facts once all this comes out, analysis of this result does not change qualitatively.

Here are two reactions from the Kingdom, here (http://www.saudigazette.com.sa/index.cfm?method=home.regcon&contentID=2009012927911) and here (http://www.saudigazette.com.sa/index.cfm?method=home.regcon&contentID=2009012627660):



and



Not sure what dad means by "removed" - probably different from my thoughts (which today are not in a be kind to maneaters mode).


He means killed in a way beffiting his crimes. Usually by the chopping off of opposing limbs, then beheading.

[jmm99]

with this aspect of the Kingdom's justice - applied in this case:


from Blackjack
He means killed in a way beffiting his crimes. Usually by the chopping off of opposing limbs, then beheading.

but "removed" from society could (I don't say it does) mean some form of imprisonment with rehabilitation.

PS: The Kingdom has modernized the manner of punishment in at least one area. Theft - chop off the hand that steals. Now (as I understand it), the hand is surgically removed under anesthesia. Same result; better PR ?

[Boondoggle]

http://www.washingtontimes.com/news/2009/jun/22/gitmo-lawyers/


Executive Order 13493 on Jan. 22 appointed Attorney General Eric H. Holder Jr. co-chairman of the Special Task Force on Detainee Disposition, the interagency group charged with determining the status of persons captured or apprehended in connection with armed conflicts and counterterrorism operations. But according to Justice Department regulations, Mr. Holder is required to recuse himself from certain detainee matters because his law firm represented the detainees.

The Legal Times reported in March that there are more than a dozen such conflicted lawyers at the department. This includes five of the top 10 officials in the department, including the attorney general; Deputy Attorney General David W. Ogden; Associate Attorney General Thomas J. Perrelli; Assistant Attorney General for the Civil Division Tony West; and Lanny A. Breuer, chief of the Criminal Division, who, like Mr. Holder, hails from the firm Covington & Burling LLP.

I wonder how much this has slowed down decisions?

[jmm99]

probably not much in the way of slowdown; and, perhaps, it has damped the changes in policy that one might expect because of the change in administrations. Besides the 3 higher-up appointees, the two most involved in the Gitmo cases and in Federal court prosecutions are Assistant Attorney General for the Civil Division Tony West; and Lanny A. Breuer, chief of the Criminal Division.

No inside dope, but since the chiefs are removed from the process, the decision making would drop down to the next level in each division, where the input of the career DoJ people would have a larger impact. That might explain why the DoJ position in the Gitmo cases has been "refined" (I think for the better as it presently stands). Continuation of prior policies has also been noted in other DoJ cases (e.g., "state secrets" civil actions).

As I say, just a WAG.

[jmm99]

and the USG is ordered to take "all necessary and appropriate diplomatic steps to facilitate the release."

Here we have a story (http://www.scotusblog.com/wp/torture-delay-may-end-enemy-status/#more-10038) of extraordinary rendition, barbaric conditions of imprisonment, and very enhanced interrogations leading to false confessions - all taking place in Astan and verified by uncontested testimony.


Torture, delay may end “enemy” status
Monday, June 22nd, 2009 8:18 pm | Lyle Denniston

In a significant legal breakthrough for Guantanamo Bay prisoners, the federal judge who has previously upheld the broadest detention power for the government ruled on Monday that torture of an individual and the passage of time after he had ties to terrorism can end his status as an enemy of the United States, and require his release.

U.S. District Judge Richard J. Leon, ruling in the case of a Syrian national who had links to Al Qaeda in Afghanistan years ago, ruled that the prisoner could no longer be detained as an “enemy combatant,” and the government must make efforts to release him “forthwith.” ....

No doubt the acts proved were war crimes, the individuals who committed them are war criminals, and their organization can be fairly found to be a criminal enterprise. However, do not expect any prosecutions of the individuals or the organization - which is named al-Qaeda.

The facts from Judge Leon's public opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1310-162) (a longer classified opinion is sealed) are interesting:


(pp. 2, 7-8)

Petitioner Janko, a Syrian citizen who spent his teen years in the United Arab Emirates, was taken into custody by U.S. forces in January 2002 in Kandahar, Afghanistan. (Unclassified Return ~~ 1-2, 19 [Dkt. #117]; Unclassified Traverse at 81-82, 92 [Dkt. # 151].) Initially he was held and questioned at Kandahar Air Base, until he was ultimately taken to Guantanamo Bay, Cuba, after approximately 100 days. (Unclassified Return ~ 42, n.12; Unclassified Traverse at 2.)
....
The Government contends, in essence, that petitioner Janko is an enemy combatant because he was "part of ... Taliban or al Qaeda forces" at the time he was taken into custody by U.S. forces in 2002. In particular, the Government argues that petitioner Janko: (1) traveled to Afghanistan to participate in jihad on behalf of the Taliban; (2) stayed for several days at a guesthouse used by Taliban and al Qaeda fighters and operatives in early 2000, where he helped clean some weapons; and (3) thereafter attended the al Farouq training camp for a brief period of time. (Unclassified Return ~~ 27-30,32-40; Unclassified Oral Arg. Tr. 21-27.) The Government effectively concedes, however, that petitioner Janko was not only imprisoned, but tortured by al Qaeda into making a false "confession" that he was a U.S. spy, and imprisoned thereafter by the Taliban for over eighteen months at the infamous Sarpusa prison in Kandahar. [3] (Unclassified Return ~ 42; Unclassified Traverse at 13-15, 84-86.)

[3] Petitioner Janko contends, and the Government does not dispute, that the conditions in the Sarpusa prison were so terrible - if not horrific - that many prisoners died while incarcerated. Prisoners were fed next to nothing, and the prison was overcrowded, unsanitary, and lacked sufficient medical care. (Unclassified Traverse at 86; Unclassified Traverse Ex. 4, ~ 37; Unclassified Traverse Ex. 12, ~ 3.)

Notwithstanding these extraordinary intervening events, the Government contends that Janko was still "part of' the Taliban and/or al Qaeda when he was taken into custody after U.S. forces learned from a reporter of petitioner's presence at the abandoned prison in January 2002. [4](Unclassified Oral Arg. Tr. 9, 31; Unclassified Traverse at 86-92.)

[4] Originally, the Government and the U.S. media mistook Janko as one of a number of suicide martyrs based on videotapes captured at an al Qaeda safehouse. (Unclassified Oral Arg. Tr. 12-13; Unclassified Traverse at 92-93.) The tape involving Janko, however, was actually an al Qaeda torture tape. (Unclassified Oral Arg. Tr. 12-13; Unclassified Traverse at 2.) Nevertheless, upon debriefing and interrogating Janko, the Government came to realize he had had a preexisting relationship with al Qaeda prior to his incarceration by the Taliban. (Unclassified Return ~~ 1,42 n.12.)

Such was the DoJ's case. The detainee's case added some more facts:


(pp.8, 8-9)

Petitioner, not surprisingly, disagrees. He denies going to Afghanistan to participate in jihad and, while he admits to staying briefly at a Taliban guesthouse, he claims he did so against his will. (Unclassified Oral Arg. Tr. 6, 18; Unclassified Traverse at 44.) Moreover, he contends that he was later taken "involuntarily" to the al Farouq training camp, fearing that he would be killed if he did not comply. (Unclassified Oral Arg. Tr. 6, 18; Unclassified Traverse at 46-48.) While there he claims he received no more than small arms training and asked to leave on his eighteenth day in residence. (Unclassified Oral Arg. Tr. 18; Unclassified Traverse at 49.) Finally, he claims that he was accused by al Qaeda leaders of being a spy and was tortured [5] repeatedly by al Qaeda for three months until he gave a false "confession" to being a U.S. spy. (Unclassified Oral Arg. Tr. 7, 18; Unclassified Traverse at 84-86.)

[5] Although a detailed description ofthe various torture methods the petitioner was subjected to by al Qaeda is beyond the scope of this opinion, it would be fair to say that if his account is true even in part, al Qaeda's conduct would be fairly characterized as barbaric.

In addition, petitioner stresses, and the Government does not dispute, that by the point in time he was taken into U.S. custody in 2002 he was a free man that had been left behind in late 2001 at the Sarpusa prison with thousands of Northern Alliance prisoners. (Unclassified Oral Arg. Tr. 5-8,20; Unclassified Traverse at 86-92.) Thus, petitioner contends, in essence, that even if he had had a prior relationship with al Qaeda or the Taliban in 2000, his subsequent torture and imprisonment for eighteen months vitiates that relationship to such a degree that he no longer was "part of" al Qaeda or the Taliban when he was taken in custody in 2002. The Government disagrees.

Such was the detainee's case.

Judge Leon's analysis of this evidence is a bit long to quote (pp.9-12), but it starts and ends with:


By taking a position that defies common sense, the Government forces this Court to address an issue novel to these habeas proceedings: whether a prior relationship between a detainee and al Qaeda (or the Taliban) can be sufficiently vitiated by the passage of time, intervening events, or both, such that the detainee could no longer be considered to be "part of" either organization at the time he was taken into custody. The answer, of course, is yes. Accordingly, the question before the Court today is whether that is exactly what happened in this case. For the following reasons, I believe it is.
....
Thus, combining the limited and brief nature of Janko's relationship with al Qaeda (and/or the Taliban), with the extreme conduct by his captors over a prolonged period of time, the conclusion is inescapable that his preexisting relationship, such as it was, was sufficiently vitiated that he was no longer "part of' al Qaeda (or the Taliban) at the time he was taken into custody by U.S. forces in 2002. Accordingly, the Government has failed to establish by a preponderance of the evidence that Janko was lawfully detainable as an enemy combatant under the AUMF at the time he was taken into custody, and the Court must, and will, GRANT his petition for a writ of habeas corpus and order the Government to take all necessary and appropriate diplomatic steps to facilitate his release forthwith.

This case (so far) is unique - comparable to the case of the Taliban informant who was also ordered to be released under the same conditions.

[jmm99]

In the recent war budget bill, there are a number of limitations on transfer of detainees from Gitmo. One page read - punch this (http://www.scotusblog.com/wp/wp-content/uploads/2009/06/gtmo-provisions-war-funding-6-18-09.doc).

[jmm99]

Judge John Bates has issued an opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2006cv1697-40) and order (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2006cv1697-39) in his remaining Bagram habeas case.

These cases and Judge Bates' prior decisions have been reported here (http://council.smallwarsjournal.com/showpost.php?p=69290&postcount=249) and here (http://council.smallwarsjournal.com/showpost.php?p=69768&postcount=255) in this thread.

The gist of the opinion (leaving aside the Court's entensive discussion of 4 technical arguments made by Wazir and rejected by the Court) is this:


Haji Wazir, an Afghan citizen, is being detained by the United States at the Bagram Theater Internment Facility at Bagram Airfield, Afghanistan. On September 29, 2006, Wazir filed a petition for a writ of habeas corpus, and respondents then filed a motion to dismiss for lack of jurisdiction on October 3, 2008. Respondents had filed similar motions to dismiss three other habeas petitions filed by Bagram detainees, and on November 17, 2008, the four cases were consolidated for argument. This Court heard oral argument from the parties on January 7, 2009.

On April 2, 2009, the Court denied respondents' motion to dismiss the petitions filed by the other three Bagram detainees but deferred ruling on respondents' motion to dismiss the petition filed by Wazir. See Al Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009).

Applying the multi-factor test set forth by the Supreme Court in Boumediene v. Bush, 128 S. Ct. 2229 (2008), this Court reasoned that the other three petitioners, none of whom are Afghan citizens, are entitled to invoke the Suspension Clause of the Constitution, Art. I. § 9 cl. 2. Hence, the Court concluded, § 7(a) of the Military Commissions Act of 2006 ("MCA"), Pub. L. No. 109-366, 120 Stat. 2600, which deprives courts of jurisdiction to entertain habeas petitions filed by individuals designated by the President as "enemy combatants," is unconstitutional as applied to those three petitioners. As to Wazir, however, the Court determined that "there is a real
possibility of friction with the Afghan government with respect to Afghan detainees." 604 F. Supp. 2d at 229. In balancing the Boumediene factors, this possibility of friction was sufficiently weighty to defeat Wazir's claim that he is entitled to invoke the protections of the Suspension Clause. Id. at 231.

The bottom line of these 4 cases provides us with the start of a "bright line" set of rules for the Bagram habeas cases - just in Judge Bates' opinion since these cases will probably be appealed to the DC Circuit and then SCOTUS.

1. Afghan national, captured in Astan and held at Bagram - no habeas review.

2. Afghan national, captured elsewhere and transferred to Bagram - no court decision to date.

3. Non-Afghan national, captured in Astan and held at Bagram - no court decision to date.

4. Non-Afghan national, captured elsewhere and transferred to Bagram - habeas review limited to issue of combatant status.

[Boondoggle]

So does this fact pattern encompass the "ticking bomb" of exigent circumstances requiring extraordinary means? Based on the fact on American captured on the battlefield, outside those captured by the Iraqi Army in 2003, has been kept alive more than hours/days, personally I think it may find that narrow window. That said, this can play out so many ways, but I fear its a race against time before they make another video.

BREAKING NEWS — Insurgents have captured an American soldier in eastern Afghanistan, the U.S. military said Thursday. Spokeswoman Capt. Elizabeth Mathias said the soldier went missing Tuesday. "We are using all of our resources to find him and provide for his safe return," Mathias said.


http://www.foxnews.com/story/0,2933,529816,00.html

[jmm99]

So does this fact pattern encompass the "ticking bomb" of exigent circumstances requiring extraordinary means?

What "extraordinary means" ?

[davidbfpo]

According to Amnesty UK Ireland has agreed to take some G-Bay detainees; not seen this in the UK media, but then it's only across the water.

Google shows that the Irish decision to take two Uzbek detainees was made in January 2009 and was re-affirmed in a visit to Washington D.C.: http://www.independent.ie/breaking-news/national-news/politics/ireland-may-accept-two-guantanamo-bay-detainees-1792700.html

Better than none.

davidbfpo

[jmm99]

since it seems a bit of inter sept separation (http://www.irishtimes.com/newspaper/ireland/2008/1230/1230581467182.html) exists between Minister for Foreign Affairs Micheál Martin and the Minister for Justice Dermot Ahern:


Irish Times [Dublin]
Tuesday, December 30, 2008
Ahern and Martin at odds over Guantanamo
....
MARY FITZGERALD, Foreign Affairs CorrespondentTHE DEPARTMENT of Justice yesterday reiterated Minister Dermot Ahern's recent statement that the Government is not contemplating the resettlement in Ireland of exonerated Guantánamo detainees.

Last month The Irish Times reported that the Department of Justice and the Department of Foreign Affairs had divergent views on the issue, with officials from the latter believing the Government could earn kudos with the incoming Obama administration by agreeing to resettle at least one detainee.

In answer to a subsequent parliamentary question, the Minister for Justice acknowledged there had been "discussions" with US authorities regarding inmates who have been cleared for release. Officials had also had "informal contacts" with interested parties and lawyers representing one of the exonerated detainees, Uzbek national Oybek Jamoldinivich Jabbarov. It had been made clear to all concerned that Ireland is not contemplating the relocation here of any detainees, Mr Ahern said.

In an interview published yesterday Minister for Foreign Affairs Micheál Martin expressed support for the idea of accepting exonerated detainees for resettlement, reportedly describing it as a "logical follow-through" from the Government's call for the facility to be shut down. The Minister indicated he would raise the issue in Cabinet.

A spokeswoman for the Department of Justice yesterday said Mr Ahern's statement on the issue still stood. "The department is not aware of any change in Government policy," she added.

It seems that the sept Ahern has a degree of intra sept separation equal to that of the Irish Sea, IF Taoiseach Bertie Ahern actually made the exact statement propounded by Amnesty International Ireland - from Kilkenny Alive (http://www.kilkennyalive.com/story/amnesty-welcomes-taoiseach%E2%80%99s-statement-guant%C3%A1namo-prisoners):


Amnesty welcomes Taoiseach’s statement on Guantánamo prisoners
Date: Wednesday, March 25, 2009

AMNESTY International Ireland has welcomed reports that the Taoiseach told journalists during his visit to the US that Ireland would take, 'a proportionate amount, a small number' of cleared Guantánamo prisoners. Between fifty and sixty of the remaining 250 prisoners have been cleared for release but cannot be sent home because of fears for their safety.

A bit of optimism by AII perhaps.

---------------------
I'm reliably informed that the sub-sept MacCarthy Reagh will remain neutral on this issue until they receive instructions from the British Crown. The Crown, however, is loath to communicate with that group because its 1642 treason attainders with corruption of blood have not been removed.

Definition of an Irishman: A descendant of Brits who learned how to swim.

A lot of true history in the preceding two paragraphs of quasi-nonsense.

[jmm99]

Excerpt re: future detainee policies, from SCOTUSblog (http://www.scotusblog.com/wp/).


President Obama -- Excerpt, interview with Associated Press, July 2, 2009

Q: You've talked about wanting to set up a legal framework for prolonged detention, which would be a pretty big sea chain in this country's jurisprudence. As a constitutional scholar, expert, does it give you any pause to have, as your legacy, this kind of legalized limbo?

Obama: It gives me huge pause, and that's why we're going to proceed very carefully on this front. And it may turn out that after looking at all the dimensions of this, that I don't feel comfortable with the proposals that surface in how to deal with this issue and ...

Q: What might make you uncomfortable?

Obama: Well, as you said, we don't have a tradition of detaining people without trial. The problem that we're confronting here is that there's been a clear distinction in the past between criminals here in the United States and war, which happens in the theater somewhere. We've detained war prisoners during times of war, but the war ended.

Here you've got a situation where we have and other extremists who would gladly blow up Americans, and yet we don't have a clear terminal point, there's not going to be some surrender ceremony where Emperor Hirohito signs the papers. And given that fact, how to manage extremists who want to do us harm and may not fall neatly under traditional criminal jurisprudence here in the United States or even international laws, but making sure that both the American people are safe and our Constitution is upheld is a very difficult thing.

I'm confident that we can do much better than we're doing so far. What we've done in Guantanamo is just leave them there in limbo for seven years without any recourse. We now know that they have habeas rights, and that means that they are able to answer charges and have legal representation. We're going to be able to prosecute a sizable number of those who are being held in our U.S. courts. The military commissions structure that we are setting up, I think, will meet the demands of our legal traditions.

And the question then is going to be, how do we handle folks who we have very strong evidence have engaged in criminal activities or violated laws of war, but the evidence is, through multiple, you know, hearsay documents that can't be introduced in court or comes from classified information that we can't compromise in a open situation - how we deal with those situations is going to be one of the biggest challenges of my administration.

Q: If you can't get legislation through Congress to establish some kind of framework, will you do it by executive order?

Obama: I am not comfortable with doing something this significant through executive order. I think it is very important that the American people and Congress, in conjunction with my administration, come up with a structure that is not only legitimate in the eyes of our constitutional traditions, but also in the eyes of the international community, because part of our task in defeating these extremists is winning over allies and populations that right now feel as if we haven't been living up to our highest ideals.

As to criminal charges, trials before Federal courts and military commissions are in. Detention under Common Article 3, without criminal charges, will not be defined by an executive order; but by legislation acceptable to the President, Congress and the American people.

This represents no substantial change in the direction of the presidential ship.

[Boondoggle]

The Obama administration said Tuesday it could continue to imprison non-U.S. citizens indefinitely even if they have been acquitted of terrorism charges by a U.S. military commission.

Jeh Johnson, the Defense Department's chief lawyer, told the Senate Armed Services Committee that releasing a detainee who has been tried and found not guilty was a policy decision that officials would make based on their estimate of whether the prisoner posed a future threat.

Like the Bush administration, the Obama administration argues that the legal basis for indefinite detention of aliens it considers dangerous is separate from war-crimes prosecutions. Officials say that the laws of war allow indefinite detention to prevent aliens from committing warlike acts in future, while prosecution by military commission aims to punish them for war crimes committed in the past.

Mr. Johnson said such prisoners held without trial would receive "some form of periodic review" that could lead to their release.

http://online.wsj.com/article/SB124699680303307309.html?mod=googlenews_wsj

It looks like now that the policy decision has apparently been made, the next step will be to follow the Whitehouse and Congressional efforts to create the bipartisian legislation to bring this to fruition. That could make for interesting bedfellows. This quote from Nadler may be some evidence of that...


Some House Democrats say the limited number of additional protections for defendants the administration has proposed don't go far enough.

Rep. Jerrold Nadler (D., N.Y.), who has scheduled a Wednesday hearing on military commissions before the House Judiciary subcommittee he heads, questioned the administration's plan to allot prisoners to federal courts, military commissions or indefinite detention.

"What bothers me is that they seem to be saying, 'Some people we have good enough evidence against, so we'll give them a fair trial. Some people the evidence is not so good, so we'll give them a less fair trial. We'll give them just enough due process to ensure a conviction because we know they're guilty. That's not a fair trial, that's a show trial," Mr. Nadler said.

[jmm99]

The case of Mohammed Jawad, both in its habeas and MCA aspects, has been reported in this thread - see this search page (http://council.smallwarsjournal.com/search.php?searchid=1695152) for individual posts.

The evidence most publicized about Jawad has been a series of admissions made in Astan (to both Astan and US interrogators) and at Gitmo. The military judge in the MCA proceedings excluded those statements.

On 1 Jul (http://www.aclu.org/pdfs/safefree/alhalmandyvobama_motiontosuppress.pdf), the ACLU (representing Jawad in the DC habeas proceeding) filed a motion to exclude the same statements. On 15 Jul (http://www.aclu.org/pdfs/safefree/alhalmandyvobama_jawadresponse.pdf), the DoJ (per Tony West) agreed in essence by not opposing the motion. The ACLU press release (http://www.aclu.org/safefree/detention/40319prs20090715.html) has its take on the case. The ACLU site has a list of pleadings and press releases (http://www.aclu.org/safefree/detention/38714res20090113.html) re: this case.

Apparently, the initial field investigation on site by US combat forces put together an evidence package which might or might not have proved Jawad's guilt. We don't know because that package was misplaced (perhaps it exists somewhere), not by the unit in the field, but subsequently in the course of Jawad's transfers from holding facility to holding facility.

The prevailing opinion, when Judge Henley in the MC hearing excluded the statements, was that the MCA criminal charges against Jawad could not be proved.

Theoretically, the DoJ could still proceed on the basis of other evidence (if any exists) to prove that Jawad was a member of AQ-Taliban; and thereby justify his continued detainment under Common Article 3. The USG could also decide to hand him back to the Astan government (which at times has requested his release).

This case (since it involves a death threat admission by the detainee) ties into the thread "Law and the Long War (http://council.smallwarsjournal.com/showthread.php?t=7773)".

[jmm99]

Bryant Neal Vinas (a convert to Islam, which is fine; and then a convert to AQ, which is not fine) managed to strike a blow for AQ's Jihad by rocketing a US position in Astan in 2008. He was picked up in Pstan by its security forces and transferred to US custody. He was indicted and pled guilty early this year in Federal District court (ED NY). The file was unsealed yesterday. He has sung like a canary, as they say.

Some news reports are:

AFP (http://news.yahoo.com/s/afp/20090722/ts_alt_afp/usattacksafghanistannewyork) - American charged with attacking US base, aiding Al-Qaeda.


Wed Jul 22, 5:40 pm ET
WASHINGTON (AFP) – A man believed to be an American has been charged with attacking a US base abroad and providing information about New York's subway to the Al-Qaeda network, according to court documents unsealed Wednesday.

Bryant Neal Vinas, described by US media as a 26-year-old man born in the United States, pleaded not guilty to conspiracy to commit murder and providing support to a foreign terrorist organization, charges brought against him after his arrest last November.

According to court documents filed with the office of US attorney Benton Campbell, the US government said that "in or about September 2008, the defendant fired rockets at a US military base in Afghanistan," and that between March and November 2008, Vinas and other unnamed people did "knowingly, intentionally and with malice aforethought conspire to kill one or more nationals of the United States."

With regard to the New York charges, the court documents said Vinas provided "material support and resources... including expert advice and assistance, including assistance derived from specialized knowledge of the New York transit system and Long Island Railroad." ....

REUTERS (http://news.yahoo.com/s/nm/20090723/ts_nm/us_security_newyork_1;_ylt=AoueIWMClXtEJq7K_0CoX3r Za7gF;_ylu=X3oDMTE2bm9hMXN0BHBvcwMzBHNlYwN5bi1yLWI tbGVmdARzbGsDZXYtdS5zLm1hbnNh) - U.S. man says aided al Qaeda plan NY railroad attack


Thu Jul 23, 7:27 pm ET
NEW YORK (Reuters) – A U.S. man has pleaded guilty to helping al Qaeda plan an attack on New York's Long Island Rail Road and to firing rockets at U.S. troops in Afghanistan, a court transcript unsealed on Thursday showed.

Bryant Neal Vinas, 26, from Long Island, also admitted at a Brooklyn federal court hearing on January 28 that he trained with the Islamist extremist group, according to the transcript, which was unsealed after a media request.

Vinas faces a maximum sentence of life in prison. A date for sentencing has not been set, a court official said.

"I consulted with a senior al Qaeda leader and provided detailed information about the operation of the Long Island Rail Road system which I knew because I had ridden the railroad on many occasions," Vinas told the court.

"The purpose of providing this information was to help plan an ... attack on the Long Island Rail Road system," he said.

Vinas told Judge Nicholas Garaufis that he left Long Island late in 2007 and traveled to Pakistan with the intention of joining a jihadist group to fight U.S. troops in Afghanistan.

"I made contact with and was accepted into al Qaeda," he said. "As a member of al Qaeda, I received training in courses in general combat and explosives.

"I took part in firing rockets at an American military base. Although we intended to hit the military base and kill American soldiers, I was informed that the rockets missed and the attack failed," Vinas said. ....

AP (http://news.yahoo.com/s/ap/20090724/ap_on_re_us/us_american_al_qaida_19;_ylt=AryXJTE3AqDipkpGmjNWM 3TZa7gF;_ylu=X3oDMTE2a24wNGpmBHBvcwMyBHNlYwN5bi1yL WItbGVmdARzbGsDZXYtZG9jdW1lbnRz) - Documents: US al-Qaida recruit trained as bomber


By ADAM GOLDMAN and DEVLIN BARRETT, Associated Press Writers Adam Goldman And Devlin Barrett, Associated Press Writers – 1 hr 31 mins ago
NEW YORK – An American-born terrorist-in-training learned how to shoot rockets and assault rifles and construct a suicide bomber's vest at al-Qaida camps in Pakistan, according to documents obtained Thursday by The Associated Press.

Bryant Neal Vinas took courses in plastic explosives and bomb theory, according to a statement he gave to investigators as part of a terrorism case in Belgium. The statement, provided to the AP on Thursday, was to be released after a hearing Friday, officials said.

Since the 26-year-old New York man's arrest in Pakistan in November 2008, Vinas has become one of the most valuable informants in the war on terrorism, giving investigators a fascinating and rare look into al-Qaida's day-to-day operations in a lawless region bordering Afghanistan.

He provided insights on many key members of Al-Qaida and how the organization recruited and indoctrinated people. Vinas also revealed the group gave lessons on assassination, poison, kidnapping, forgery and advanced bomb making, according to the statement.

Vinas told counterterrorism investigators about meetings with top al-Qaida members while staying at a network of hideouts on the Afghanistan-Pakistan border, where he trained from about March 2008 to August 2008.

Pakistani authorities nabbed the 26-year-old New Yorker after he returned to city of Peshawar near the border of Afghanistan to find a wife, according to his statement. ....

The court documents are at Intelfiles (http://intelfiles.egoplex.com/labels/Bryant-Neal-Vinas.html).


Thursday, July 23, 2009
Bryant Neal Vinas Indictment and Transcripts


From the L.A. Times (http://www.latimes.com/news/la-na-american-jihad23-2009jul23,0,227625.story?track=rss):

An American Muslim convert from Long Island, N.Y., who was captured while fighting for Al Qaeda in Pakistan is now cooperating with authorities, opening a rare window into the world of Western militants in the network's hide-outs, U.S. and European anti-terrorism officials said.

Bryant Neal Vinas, 26, is one of the few Americans known to have made the trek to Al Qaeda's secret Pakistani compounds, the officials said.

Vinas has admitted to meeting Al Qaeda chiefs and giving them information for a potential attack on New York commuter trains, conversations that resulted in a public alert in November, said the officials, who requested anonymity because the case was ongoing.

Here are the key court documents in the Vinas case:

All documents (http://intelfiles.egoplex.com/2009-07-22-Bryant-Neal-Vinas-Court-Docs.pdf)

November 14, 2008, First indictment (http://intelfiles.egoplex.com/2009-07-22-Bryant-Neal-Vinas-Court-Docs.pdf#page=1)

November 22, 2008, Court transcript (http://intelfiles.egoplex.com/2009-07-22-Bryant-Neal-Vinas-Court-Docs.pdf#page=4)

January 28, 2009, Superseding indictment (http://intelfiles.egoplex.com/2009-07-22-Bryant-Neal-Vinas-Court-Docs.pdf#page=13)

January 28, 2009, Court transcript (http://intelfiles.egoplex.com/2009-07-22-Bryant-Neal-Vinas-Court-Docs.pdf#page=16)

July 22, 2009, Order to unseal (http://intelfiles.egoplex.com/2009-07-22-Bryant-Neal-Vinas-Court-Docs.pdf#page=21)

A pertinent question is why the record was unsealed at this time - i.e., was Vinas' intelligence value exhausted. Another question is whether this case relates to AQ's warning against US spies in its midst.

[jmm99]

from yesterday's and today's papers, is here (http://www.nytimes.com/2009/07/23/nyregion/23terror.html?ref=nyregion) and here (http://www.nytimes.com/2009/07/24/nyregion/24terror.html?_r=1&partner=rss&emc=rss&pagewanted=all).

[jmm99]

Here is the today's Washington Post update (http://www.washingtonpost.com/wp-dyn/content/article/2009/07/24/AR2009072403041_pf.html) on the Mohammed Jawad (grenade case).


Criminal Charges Against Detainee Weighed
Prisoner Would Be 2nd Brought From Guantanamo to U.S. for Federal Trial
By Del Quentin Wilber and Julie Tate
Washington Post Staff Writers
Saturday, July 25, 2009

The Justice Department signaled in court papers Friday that it was considering filing criminal charges against a Guantanamo Bay detainee who is alleged to have thrown a grenade at U.S. troops in Afghanistan.

The detainee, Mohammed Jawad, would be the second prisoner brought from the U.S. military facility at Guantanamo Bay, Cuba, to the United States for a federal trial if the Justice Department proceeds with a prosecution.

The court papers were filed in a federal lawsuit brought by the Afghan under the centuries-old legal doctrine of habeas corpus, which allows prisoners to contest their confinements before judges. Human rights groups have decried Jawad's detention, asserting that he might have been as young as 12 when he was captured.

Until recently, the government had justified holding Jawad by citing his confessions to Afghan police and U.S. soldiers.

But a federal judge was leaning toward tossing out those statements by adopting a military commission ruling last year that the confessions were obtained through torture.

Last week, the government abandoned the use of those statements, and U.S. District Judge Ellen S. Huvelle gave the government until Friday to file court papers laying out other evidence. The judge set a hearing for Aug. 5 and sharply criticized the government's case, saying it was "riddled with holes."

Instead of providing Huvelle new evidence, the government announced it was going to abandon the habeas fight and was examining whether it could charge Jawad with a crime in a U.S. court.

In a search of records, Justice Department lawyers wrote, authorities had discovered eyewitness accounts of the attack "not previously available for inclusion in the record" and videotaped interviews of witnesses.

Attorney General Eric H. Holder ordered that the criminal investigation be expedited, and Jawad was being transferred to another area on the Guantanamo Bay naval base, the lawyers wrote. The Justice Department stopped short of saying it had made a firm decision in his case. ....

So, what is going on here - other than possible internal confusion at DoJ. Let's examine the possible courses of action open to the USG (besides repatriating him to Astan):

1. Simply argue that he can be properly held as a Common Article 3 detainee because of his status (when first detained) as an irregular combatant. We'll leave that one for the end of the discussion.

2. Try him under the MCA for specified MCA crimes before a military commission.

3. Try him under some US statute(s) in an Article III Federal District court.

The links previously used in this thread in the Mohammed Jawad case are given in this post (http://council.smallwarsjournal.com/showpost.php?p=77256&postcount=352) - so only newly sourced material will be linked here.

-------------------------------------
Trial before a Military Commission for MCA criminal violations

We start with the basic charges, which were brought in the MCA Charge Sheet (9 Oct 2007; previously linked), which boiled down to the following:


CHARGE I, Violation of 10 U.S.C. §§ 9501, 950v(b)(l5), Attempted Murder in Violation of the Law of War. [against] ... Sergeant First Class Michael Lyons, U.S. Army .... Sergeant First Class Christopher Martin, U.S. Army, ... Assadullah Khan Omerk, a citizen of Afghanistan, then accompanying and employed by U.S. Forces as an interpreter....

CHARGE II: Violation of 10 U.S.c. §950v(b)(13), Intentionally Causing Serious Bodily Injury .... [against same persons] ....

each charge has multiple specifications, which all follow this format.


Specification 1:
In that Mohammed Jawad, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in and around Kabul; Afghanistan, on or about December 17, 2002, while in the context of, and associated with, an armed conflict, attempt to commit murder in violation of the law of war, by throwing a hand grenade into the passenger compartment of a vehicle transporting U.S. or Coalition Forces ...

The 8-point summary of the evidence against Jawad is summed in the first page of his CSRT review (snip attached from NY Times database (http://projects.nytimes.com/guantanamo/detainees/900-mohamed-jawad)).

The first 7 points were most likely derived from the interrogations of Jawad, which have been excluded from evidence by both Judge Henley (in the MCA proceeding) and Judge Huvelle (in the DC habeas proceeding). However, what of point 8 ? Would that support MCA charges ?

One view is negative, for reasons explained here (http://intlawgrrls.blogspot.com/2009/07/curious-case-of-mohammed-jawad-mohammed.html); although it suggests that "perfidy" would be a valid MCA charge.


The only crime enumerated in the Military Commissions Act that might be applicable here, although it was not charged, is perfidy (which is akin to the Hague Convention crime of killing or wounding treacherously). The MCA defines the crime of perfidy as follows:


(17) USING TREACHERY OR PERFIDY.-Any person subject to this chapter who, after inviting the confidence or belief of one or more persons that they were entitled to, or obliged to accord, protection under the law of war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such person or persons shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

The essence of perfidy is giving the impression of being a protected person (i.e., a civilian in Jawad’s case) in order to take advantage of civilian immunity while behaving like a combatant. It is not clear why the military commission prosecutors have not been charging perfidy in more unprivileged combatant cases other than because it does not carry the moral stigma, rhetorical punch, or basic name recognition of an attempted murder charge. They would do well to do so: such a charge stands on firmer legal ground than the dubious war crimes of the murder of or injury to a lawful combatant.

My own view is less negative on the attempted murder and aggrevated assault charges; but one must concede that a legal dogfight over constitutional and statutory construction issues would dominate a renewed MCA hearing. That is positing the existence of independent evidence establishing Jawad's guilt - which we didn't know until today.

---------------------------------
Indictment and Trial in Federal District Court

Whatever problems exist in the MCA military commission venue, will exist in Federal District court - probably multiplied "x-fold". A Federal District court proceeding would take time (the Embassy Bombings case is set for trial in late Sep 2010, better than a year hence).

So, if the Obama administration desires delay more than resolution, a Federal indictment and criminal proceding would be a logical tactical move on the part of DoJ. The DC habeas proceeding would then be dismissed and the MCA proceeding could be left in limbo.

- continued in part 2 -

[jmm99]

Was Jawad an irregular combatant - forget about crimes; just think detention ?

Here is an initial report (http://www.independent.co.uk/news/world/asia/two-us-soldiers-and-interpreter-hurt-in-afghanistan-grenade-attack-611329.html) of the incident - before interrogations and renditions.


Two US soldiers and interpreter hurt in Afghanistan grenade attack
By Todd Pitman
Wednesday, 18 December 2002
.....
Attackers hurled a grenade into an unmarked jeep carrying two American soldiers and an Afghan interpreter in the heart of Kabul on Tuesday, wounding all three, the US military said.

An Afghan official later said the attack was linked to the al-Qaida terrorist network. There have been frequent attacks against US bases in eastern Afghanistan, but attacks on US forces in the capital Kabul are rare.

One of the soldiers received injuries to the head while the other suffered shrapnel wounds to his leg. The soldiers were in a stable condition while their interpreter suffered only light wounds.

US military spokeswoman Lt Tina Kroske said three suspected assailants were arrested, but Kabul Police Chief Basir Salangi said only two men were in custody.

Interior Minister Taj Mohammed Wardak said on state TV that authorities were investigating the incident.

"There is no doubt that these people had links to al-Qaida," he said. At present it is not clear what evidence he has.

At a police station where the detainees were being interrogated, one suspect claimed he carried out the attack because the Americans were laughing at women. ....

Almost 7 years later, it is still not clear exactly what the intial evidence was - as opposed to the later statements made in interrogations which have been excluded.

We have an inkling as to what one eyewitness will say, from this Army Times article (http://www.armytimes.com/news/2008/03/ap_warcrimes_031208/).


Man accused in grenade attack defiant in court
By Michael Melia - The Associated Press
Posted : Friday Mar 14, 2008 5:37:15 EDT
.....
In a phone interview, one of those wounded in the attack, former Army Sgt. 1st Class Christopher Martin, said he should never be let out of U.S. military custody.

Even if Jawad goes to trial and is found innocent, Martin may still get his wish. The U.S. military retains the right to hold indefinitely those considered to pose a threat to the United States - even those who have been cleared of charges at Guantanamo’s “military commissions.”

Martin, a U.S. National Guard soldier, arrived in Afghanistan in October 2002 with a Special Forces unit assigned to train a new national army. Near sunset on Dec. 17, he and Army Sgt. 1st Class Michael Lyons were moving slowly in a jeep amid a stream of cars, trucks and ox carts, with Lyons driving and Martin in the front passenger seat. Their interpreter was in the back seat.

A grenade suddenly came in through the rear window, which was missing its glass, and landed at the soldiers’ feet.

It exploded, engulfing the jeep in flames and sending shrapnel into the two Americans. The translator, who was in the back seat, was only slightly wounded.

Martin said he commandeered a taxi and he and bystanders moved Lyons from the jeep. Before leaving to seek first aid, Martin saw two Afghan policemen in the crowd grab a teenager in a robe. He was carrying two other grenades.

“It is believed that he was going to finish us off with the other two,” Martin said.

The attack left Martin with broken bones in both feet, a punctured ear drum and an eye injury that has required a half dozen surgeries. He resumed working for the Long Beach police after more than 18 months of rehabilitation, but still has a limp from nerve damage in a leg.

Lyons returned to active-duty service after recovering from injuries to the lower half of his body, Martin said. .....

SSG Martin's testimony, plus that of the two Afghan cops, could add up to a prima facie "case" in favor of Jawad's being an irregular combatant.

That Jawad was not pure as the driven snow, in fact, seems to have been a given among both the prosecution and defense teams in the military commission proceedings. See, 22 Sep 2008, Declaration of Darrel Vandeveld, LTC, USAR (p.2, para 6; this has been linked in a prior post):


My view of the case has evolved over time. I now accept that Jawad was under the age of eighteen when apprehended. I suspect that he was duped by Hezb-e Islami Gulbuddin into joining the organization, and it seems plausible to me that Jawad may have been drugged before the alleged attack on 17 December 2002. I base these judgments on the evidence collected at the time, and not because of any sympathy for Mr. Jawad himself, whom I do not know and have only seen during Commission proceedings. Based on my view of the case, I have advocated a pretrial agreement under which Mr. Jawad would serve some relatively brief additional period in custody while he receives rehabilitation services and skills that will allow him to reintegrate into either Afghan or Pakistani society. One of my motivations in seeking a reasonable resolution of the case is that, as a juvenile at the time of his capture, Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him. I am bothered by the fact that this was not done. I am a resolute Catholic and take as an article of faith that justice is defined as reparative and restorative, and that Christ's most radical pronouncement - command, if you will- is to love one's enemies.

Based on statements, such as LTC Vanderveld's (and rumors floating around the Net), of evidence which was collected at the scene and probable eyewitnesses, I've hinted at the existence of independent evidence having been collected and lost.

Now, the DoJ (in the WP article) apparently has turned up what was then lost and now found.


In a search of records, Justice Department lawyers wrote, authorities had discovered eyewitness accounts of the attack "not previously available for inclusion in the record" and videotaped interviews of witnesses.

The merits of this case (was Jawad a principal or accessory to the grenade attack ?) have to date not been properly addressed.

If I were SSG Martin, I'd be madder than hell - although, as a cop, he's probably used to that condition.

My resolution of this case would be to prove that Jawad was an irregular combatant - if the independent evidence supports that status factually; and then detain him for the "duration" (whatever that happens to be). That approach would not satisfy those who believe irregular combatants may not be detained unless they are guilty of crimes. It would, I believe, satisfy SSG Martin, which should be a major concern.

[jmm99]

The DoJ filed a Notice (http://www.scotusblog.com/wp/wp-content/uploads/2009/07/us-jawad-filing-7-24-09.pdf) on Friday, together with a press release (http://www.scotusblog.com/wp/wp-content/uploads/2009/07/doj-statement-jawad-7-24-09.doc), which withdrew its opposition to entry of a habeas order releasing Jawad, but reserving the right to consider criminal charges against him.

The bottom line of the Notice:


On July 15, 2009, respondents declined to contest petitioner’s “Motion to Suppress His Out-of-Court Statements.” See Respondents’ Response to Petitioner Mohammed Jawad’s Motion to Suppress His Out-of-Court Statements (Dkt. No. 302). On July 17, 2009, this Court granted petitioner’s Motion and ordered respondents “to file a brief that describes the legal and factual basis for its case-in-chief.” See Order dated July 17, 2009 (Docket No. 303). In light of the evidence that remains in the record following respondents’ decision not to contest petitioner’s Motion, respondents will no longer treat petitioner as detainable under the Authorization for Use of Military Force (“AUMF”), Pub. L. 107-40, § 2(a), 115 Stat. 224 (2001), as informed by the laws of war. Consistent with this determination, the Department of Defense is taking steps to house petitioner at an appropriate camp facility at Naval Station, Guantanamo Bay, Cuba.

However, in light of the multiple eyewitness accounts that were not previously available for inclusion in the record – including videotaped interviews – as well as third-party statements previously set forth in the government’s factual return, see generally Attachment A, hereto, the Attorney General has directed that the criminal investigation of petitioner in connection with the allegation that petitioner threw a grenade at U.S. military personnel continue, and that it do so on an expedited basis. As the Court is aware, the standard for detention under the AUMF is different than the elements that must be proved in a criminal prosecution, and thus a decision not to contest the writ does not resolve whether the current eyewitness testimony and other evidence, or additional evidence that may be developed, would support a criminal prosecution stemming from the attack on U.S. service members.

The press release suggested that there is an eyewitness to the event:


Department prosecutors have also reviewed evidence that was not previously made available to the court in which an eyewitness alleges that he saw Jawad throw a grenade that wounded two American service members.

The hearing transcript (http://www.scotusblog.com/wp/wp-content/uploads/2009/07/jawad-hearing-7-16-09.pdf) shows a very frustrated judge. The ACLU lawyer raised a legal point, which the judge did not decide:


And Judge, there is another deficiency which I don't think we have addressed which cannot be established without his statements. Under the legal definition, the government's legal definition, on its own or as interpreted by Judge Bates a link to either al-Qaeda, the Taliban or the Associated Force. They don't have that either.

THE COURT: We don't know what they have. The case is in shambles.

Under the ACLU's legal logic, only members of AQ-Taliban (or an associated group) can be detained under the AUMF. The only proof (so far as we know at present) that Jawad was an AQ-Taliban member came from the excluded statements.

An alternative scenario (if an eyewitness exists to testify that Jawad threw the grenade) would be to classify him as an unaffiliated irregular combatant who could be detained under the general Law of War. If so, the normal detention policy would have been to hold him in Astan (at Bagram or an Astan jail), where the writ of habeas has so far not reached. Ironic.

[davidbfpo]

The Binyam Mohammed case is back in the High Court, London and the Crown are arguing against disclosure of a document: http://news.bbc.co.uk/1/hi/uk/8175234.stm

The Crown's case being damage could / would be caused to the 'special relationship' and lives lost. Appears that the two judges are - once again - reluctant to agree.

davidbfpo

[jmm99]

From ABC, UK Government to be Sued For Involvement in CIA Rendition Program (http://abcnews.go.com/Blotter/story?id=8194127&page=1). The plaintiff is former Gitmo detainee, Mohamed Saad Iqbal Madni, who is represented by the same attorney who represents Binyam Mohammed, Clive Stafford Smith, legal director, of Reprieve.

[davidbfpo]

The UK High Court continues to indicate it is very unhappy with the government's stance: http://news.bbc.co.uk/1/hi/uk_politics/8177941.stm


The details emerged in a High Court judgement on Friday, which was an update on a ruling on the secret evidence in Mr Mohamed's case, originally made last year.

Alas no details of the judgement.

davidbfpo

[davidbfpo]

The joint House of Parliamentary Joint Committee on Human Rights (i.e. Commons and Lords) has published a report on the allegations of UK agencies involvement in torture, notably in the Binyam Mohammed case; reported in: http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/5966195/MI5-and-MI6-are-unaccountable-report-says.html

Note published after Parliament goes on holiday and can be best described as "shouting at the walls of (Whitehall) Jericho". The statement that the intelligence agencies are unaccountable is of note, as the agencies and Whitehall claim there is a highly developed system of accountability.

davidbfpo

[davidbfpo]

The Sunday Telegraph has a story on a joint statement by the Foriegn and Home Secretaries (responsible for SIS & Security Service; aka MI6 & MI5): http://www.telegraph.co.uk/news/newstopics/politics/5995309/We-cannot-eliminate-all-risk-of-torture-ministers-admit.html

Nice sub-title
It is impossible to guarantee that information used by the security services has not been obtained through torture, David Miliband and Alan Johnson now admit.

The ministers statement is: http://www.telegraph.co.uk/comment/5996382/David-Miliband-and-Alan-Johnson-We-firmly-oppose-torture---but-it-is-impossible-to-eradicate-all-risk.html

davidbfpo

[davidbfpo]

Starting with the current head of SIS (MI6) and then others within Whitehall-Westminster - in response to allegations of collusion with torture: http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/6004491/Torture-claims-no-British-Government-inquiry.html

davidbfpo

[jmm99]

are looking more likely from this AP article, AP source: Obama officials to tour Michigan prison considered for Gitmo detainees (http://wire.antiwar.com/2009/08/12/ap-source-obama-officials-to-tour-michigan-prison/).

Standish Max is in the SE corner of our Congressional District. A better choice might be to transfer the inmates at Baraga Max to Standish Max - and put the Gitmo people in Baraga Max (30 miles from here), which is really isolated.

[Ron Humphrey]

are looking more likely from this AP article, AP source: Obama officials to tour Michigan prison considered for Gitmo detainees (http://wire.antiwar.com/2009/08/12/ap-source-obama-officials-to-tour-michigan-prison/).

Standish Max is in the SE corner of our Congressional District. A better choice might be to transfer the inmates at Baraga Max to Standish Max - and put the Gitmo people in Baraga Max (30 miles from here), which is really isolated.

area like in terms of the infrastructure development that would be needed to support the influx of all those likely to show up related to trials,etc.

[jmm99]

so, about 100 miles from the Detroit Metro area.

Since the Obama administration has not decided which detainees to try, and where to try them, a large influx may or may not occur. Military commission trials (if there are any) could find a home at one of the Detroit area military bases. Although, I expect that Standish Max has a courtroom (to avoid transporting its high risk inmates); Baraga Max has one.

Habeas cases are presently venued in the DC Circuit; although if detainees are moved into CONUS, I suppose a change of venue could occur. For Standish, that would be the Eastern District of Michigan (main courthouse in Detroit).

[davidbfpo]

A story from a US magazine Mother Jones, which reads well, but cites little external support: http://www.motherjones.com/politics/2009/07/thousand-little-gitmos

The magazine's standpoint appears to be radical.

(Added after some research)

I've not heard of this case before, which involves a US national (here on a student visa) who committed an offence here - apparently - and is accussed of AQ support in the USA. Arrested in the UK in June 2006, extradited in but was extradited to the USA in 2007 and has yet to have his full court trial. Two good links: http://www.dailyestimate.com/article.asp?id=9781 and http://www.billwarnerpi.com/2008/10/us-holds-terror-suspect-from-queens-ny.html Note the Mother Jones article is similar to the later in it's detail.

The story "broke" as the defendant pleaded not guilty this week in court.

davidbfpo

[jmm99]

Hello David,

No one can ever accuse you of overstatement :):


The magazine's standpoint appears to be radical.

I'd say very radical; but having said that, it does sometimes come up with truths ignored by the mainstream - as does a broken clock twice a day. This does not seem to be one of those occasions.

The author of the piece makes any number of sweeping assertions, without providing any links to the original sources (such as court pleadings and decisions), which could support or demolish his argument made. Since the author, who in essence is making a legal argument, has totally failed to present points and authorities (nor a factual record, which can be reviewed), I do not feel compelled to respond.

The first of your links presents a more balanced view than Mother Jones. Mr Warner may have his own axes to grind (from the other side) - I don't really know. Mr Hashmi's attorney, Sean Maher is a National Lawyers Guild member (which is left leaning - not unknown to have had CPUSA members, but also some friends of mine who were simply consistently left). That doesn't mean that what Mr Maher says is right or wrong because of that.

The 2007 DoJ press release summarizing the indictment and extradition is here (http://www.usdoj.gov/usao/nys/pressreleases/May07/hashmiextraditionpr.pdf). The Free Fahad (http://www.freefahad.com/) website ("Fahad" is Hashmi's nickname) has some court records & a lot of pro-Fahad materials. Also a button for making contributions to his defense fund. ;)

The docket entry card for the Hashmi case (http://brianhowes.files.wordpress.com/2009/05/syed-hashmi-docket.pdf) has some 100 entries between 24 May 2006 and 13 Apr 2009. Read and judge for yourselves. The underlined numbers (e.g., 1 , 97) in the second column of the docket entry card are linked to the court records. But, access requires a PACER login and password (https://ecf.nysd.uscourts.gov/doc1/12706162713?pdf_header=1&pdf_toggle_possible=1&de_seq_num=478&caseid=285433) (a PACER account with the Federal courts - $).

Best regards

Mike

[jmm99]

I don't see this as anything that earthshaking, since Judge Hogan and other judges have charted a similar path taken by Judge Walton in his two cases.

In any event, here is Lyle Denniston's analysis (http://www.scotusblog.com/wp/setback-for-u-s-on-detention-claims/#more-10430):


Setback for U.S. on detention claims
Wednesday, August 19th, 2009 11:11 pm | Lyle Denniston

Stepping in boldly to take control of an issue that has lingered for five years in Guantanamo Bay detainee cases — a dispute that traces directly back to the Supreme Court’s first ruling five years ago on government detention power, a federal judge on Wednesday put strict new limits on the government’s use of its main pile of evidence for justifying further confinement of prisoners.

U.S. District Judge Reggie B. Walton went further than any of his District Court colleagues has gone in cutting back on the Pentagon’s option of proving its detention cases by using a kind of evidence that normally would not be allowed in court — hearsay, as a substitute for direct proof of facts. The judge refused to follow the government’s plea that all of its hearsay evidence about an individual detainee should have a special rank, admitted into court with a presumption that it was reliable unless detainees’ lawyers could show it was not. ....

Judge Walton's order (http://www.scotusblog.com/wp/wp-content/uploads/2009/08/Walton-on-hearsay-8-19-09.pdf) concludes:


The approach taken by this member of the Court comports with the standard set forth by Judge Hogan in his case management order (subject to the clarifications of that standard set forth above). Consequently, both with respect to these particular habeas corpus petitions and for all of the active habeas corpus petitions pending before this member of the Court, the government must establish that any proffered hearsay evidence is admissible either (1) under the Federal Rules of Evidence, as modified by 28 U.S.C. § 2246, or (2) by demonstrating that (a) the proffered hearsay is reliable and (b) that the provision of non-hearsay evidence would unduly burden the government (as that term is construed in this opinion) or interfere with the government’s ability to protect national security.

A wide scope of hearsay evidence is allowed directly under the FRE, especially as modified by the habeas statute (28 USC 2246). In addition, hearsay evidence could be admitted under either the "undue burden" or "national security" exceptions.

It would not surprise that a 'battlefield" exception will develop - which would fit under the FRE and the habeas statute. That is, records developed in the usual and normal course of detainee handling (including statements made by the detainee). In such cases, compliance with the military's FMs dealing with that process would be critical as to whether the evidence comes in or not.

On the other hand, I'd expect that records and affidavits from "extraordinary" and "enhanced" processes will be viewed much less favorably by the Federal courts.

[Air-On]

Vir prudens non contra ventum mingit
:p
Right you are, my friend!
Thank you and all posters on this thread for all the correct reasoning on the fate of terrorist prisoners. It all comes down to the simplest definition of our Torah: "don't do to others what is abhorrent to yourself". The rest is just explanation...
As you all certainly remember, Israel recently discussed downgrading the inprisonment conditions of hamas terrorists in our jails - to bring them to the level of existence (if he has not , G'd forbid, been murdered already) of kidnapped corporal Shalit. Arab prisoners in Israel have privileges like the right to cook their own "halal" food, cable tv, marital visits, study up to college level... Israel is highly moral, these guys live better than many honest-to-G'd people. Even then, the world paint us worse than the devil - but that is another story.
The Israeli officer that refused to let this motion follow through bravely said: "-I want to be able to look at my face on the mirror, when i wake up every morning."). It is a moral stance, and it sets us apart from the savagery of these NSA... Indeed, it is refreshing to see this sane debate, makes me proud of humbly "lurking" here and learning from decent people. Why, just yesterday the Jerusalem Post informed that two women had their fraud-preventing inked fingers cut off by the barbarian talibans:mad: ).
But!!! thanks also for The Hearty Laugh!!! I studied Latin in College, so I could understand: "Vir prudens non contra ventum mingit":a wise man does not piss against the wind...;) A saying in Brazil goes "don't ever spit upwards: it will fall flat on your face":D

[jmm99]

Judge Gladys Kessler in May entered a merits decision on the habeas petition of Alla Ali Bin Ali Ahmed of Yemen, ordering his release, which is discussed here (http://council.smallwarsjournal.com/showpost.php?p=71827&postcount=283) and here (http://council.smallwarsjournal.com/showpost.php?p=72019&postcount=287).

Judge Kessler has decided a second Yemeni case, Mohammed Al-Adahi (http://www.scotusblog.com/wp/difficulty-in-justifying-detention/#more-10450), whose release was also ordered.


Difficulty in justifying detention
Friday, August 21st, 2009 8:16 pm | Lyle Denniston

A federal judge’s lengthy but heavily censored opinion released on Friday demonstrated anew the difficulty that the Pentagon and U.S. intelligence agencies are having in trying to justify in court the continued holding of some of the prisoners at Guantanamo Bay, Cuba. A prisoner with family links to terrorist leader Osama Bin Laden, with personal encounters with Bin Laden, with at least a brief round of training in an Al-Qaeda military camp, with close knowledge of some of bin Laden’s bodyguards, and with other alleged links to Al-Qaeda soldiers — all of that was not enough, singly or together, to justify the detention of a Yemeni national, Mohammed Al-Adahi, Senior U.S. District Judge Gladys Kessler ruled. ...

Judge Kessler's opinion (http://www.scotusblog.com/wp/wp-content/uploads/2009/08/Al-Adahi-opinion-8-21-09.pdf) is heavily redacted (references to classified evidence are blacked out).

My comments to Judge Kessler's first decision apply equally here. In short, the judge accepted the legal definitions of the DoJ, as well as admitting its evidence; but found, as a matter of fact, that the USG had failed to make its case. So, no law was made (one way or the other) in this case.

You may judge for yourself, after reading Judge Kessler's opinion, whether you would have found the same lack of facts supporting the USG's case.

-------------------------

Judge Kessler did clarify one legal standard. The "Miranda" and like rules of exclusion do NOT apply to these proceedings (p.21 n.14):


14. Petitioner's counsel argues that all ex parte statements made by Petitioner must be excluded from the record. Pet.'s Mot. at 18 -20. They maintain that because Petitioner was represented by counsel as of February 7, 2005, and all interrogations after that date were not consented to by counsel, Constitutional and ethical rules require that evidence from those interrogations be excluded. Id.

The Court concludes that the ex parte statements are admissible for the following reasons. First, under Supreme Court and Court of Appeals precedent, only defendants in the criminal context can claim Sixth Amendment protections. Montejo v. Louisiana, 129 S.Ct. 2079, 2085 (2009) (stating that Sixth Amendment "guarantees a defendant the right to have counsel at all 'critical' stages of the criminal proceedings.O) (emphasis added); United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986) (finding that right to counsel attaches "only after the initiation of 'adversary judicial criminal proceedings, I e.g., formal charge, preliminary hearing, indictment, information, or arraignment."). Petitioner is not involved in a criminal proceeding, and thus the Sixth Amendment does not apply. Cf. Coleman v. Balkcom, 451 U.S. 949, 954 (1981) (Marshall, J., dissenting from denial of certiorari).

Second, Petitioner argues that the Government's conduct amounts to a violation of ethical rules. The interrogators in this case were not the attorneys representing the Government in habeas litigation; rather; they were agents conducting an investigation. There is no evidence that Government attorneys controlled or guided interrogations of Al-Adahi. Consequently, there were no ethical violations. See United States v. Lemonakis, 485 F.2d 941, 956 (D.C. Cir. 1973); Sutton, 801 F.2d at 1366.

In the end, the detainee's statements did the government no good. In general, Judge Kessler found no inculpatory statements proving AQ membership and a number of exculpatory statements, which she accepted.

[jmm99]

The Justice Department formally notified a federal judge on Monday that it has carried out the court order to return the Afghan detainee, Mohammed Jawad, to Astan, ending nearly a seven-year stay in U.S. military custody, most recently at Guantanamo Bay, Cuba.

The DoJ court filing (http://www.scotusblog.com/wp/wp-content/uploads/2009/08/Jawad-status-report-8-24-09.pdf), the DoJ press release (http://www.scotusblog.com/wp/wp-content/uploads/2009/08/DOJ-on-Jawad-transfer-8-24-09.html) and the ACLU press release (http://www.scotusblog.com/wp/wp-content/uploads/2009/08/ACLU-on-Jawad-transfer.html) are online - Jawad was represented by the ACLU and U.S. Air Force Major David Frakt (whose statement is included in the ACLU release).

The issue of whether Jawad threw, or was an accessory to throwing, the grenade (which was the reason he was detained in the first place), was never tried on the merits. I'm reminded of the Onion Field - book (http://en.wikipedia.org/wiki/The_Onion_Field) & movie (http://en.wikipedia.org/wiki/The_Onion_Field_(film)).

[jmm99]

CIA inspector general's report (http://media.washingtonpost.com/wp-srv/nation/documents/cia_report.pdf?hpid=topnews) on interrogation during the war on terror is online at the Wash Post (also linked earlier on SWJBlog) - 234pp.

[jmm99]

Al Odah was caught with AK in hand on the border near Tora Bora, leading Judge Colleen Kollar-Kotelly (http://council.smallwarsjournal.com/showpost.php?p=74605&postcount=329) (who is an old pro in the Intel area) to deny his habeas petition in a now-unclassified opinion (http://www.scotusblog.com/wp/wp-content/uploads/2009/08/Al-Odah-ruling-by-CKK-8-24-091.pdf), analysed at SCOTUSBlog (http://www.scotusblog.com/wp/al-odah-loses-challenge-five-years-after/#more-10546):


Al Odah loses challenge, after five years
Monday, August 31st, 2009 11:01 pm | Lyle Denniston

More than five years after the Supreme Court ruled that a Kuwaiti national, Fawzi Khalid Abdullah Fahad Al Odah, had a right to challenge his detention at Guantanamo Bay, a federal judge has decided that challenge, upholding Al Odah’s captivity. Al Odah’s challenge was the second oldest of the Guantanamo cases in U.S. District Court, but went to the Supreme Court in 2003 as part of the first test of presidential detention power. (Al Odah’s case was a companion to Rasul v. Bush, the first-filed Guantanamo case; the two cases were decided together on June 28, 2004.)
....
In deciding Al Odah’s case, the judge borrowed from other District judges a definition of presidential detention power that is less expansive than those proposed by both the Obama Administration and, before it, the Bush Administration. Still, she concluded that the government had met that standard after finding that Al Odah had gone to Afghanistan and engaged there in a series of actions that, together, showed he “became part of Taliban and al Qaeda forces.”

The key inquiry, Kollar-Kotelly said, in “whether an individual has become part of one or more” of the Taliban, al Qaeda or “associated forces” is “whether the individual functions or participates within or under the command structure of the organization — ie., whether he received and executes orders or directions.”

Judge Kollar-Kotelly's opinion (32 pages), as compared to the opinion of Judge Gladys Kessler a week ago, gives far more credence to the USG's evidence and the logical inferences to be drawn from it. In short, as every trial lawyer knows, the disposition of the trier of fact in the most critical factor in a merits hearing.

[Fuchs]

"Fear was no excuse to condone torture"

http://www.miamiherald.com/opinion/other-views/story/1227832.html

Charles C. Krulak was commandant of the Marine Corps from 1995 to 1999. Joseph P. Hoar was commander in chief of U.S. Central Command from 1991 to 1994.

[jmm99]

Thanks for the link to GENs Krulak and Hoar's op-ed. Their position is not surprising. It simply reflects the position of military law from before 9/11 and after.

For example, take a look at MCRP 4-11.8B (http://www.fas.org/irp/doddir/usmc/mcrp4-11-8b.pdf), War Crimes, 2005, p.13. That doctrinal manual is simply an amplification of the Corps' policies going back to and before Chuck Krulak was Commandant.

The uniform Army and Marine policy on detainees (regardless of their eventual legal status) held by regular units under standing orders is that all detainees are to be treated as EPW or civilians until their status is determined by higher authorities. Refs to FMs are here (http://council.smallwarsjournal.com/showpost.php?p=76954&postcount=35) and here (http://council.smallwarsjournal.com/showpost.php?p=73202&postcount=13).

No matter what the eventual status of a detainee (GC III, GC IV or Common Article 3), military law provides no cover for either extraordinary renditions or enhanced interrogations. The latter, of course, were "sanctified" by the memos of John Yoo and others.

The Yoo position was roundly criticized by MG Charles J. Dunlap (Deputy Judge Advocate General of the U.S. Air Force), Lawfare Today: A Perspective (http://www.nimj.org/documents/Lawfare%20Today.pdf)(2008), starting at p.5 of pdf. In answer to Yoo's attacks on JAG officers for attacking his positions, Charlie Dunlap had this to say (in part):


Professor Yoo’s motivation for lashing out at JAGs is not difficult to discern: as Charlie Savage’s new book reports, [24] JAGs opposed, with some success, several of the legal propositions Yoo touted when he worked in government.

Professor Yoo contends that the JAG legal opinions amounted to no more than simply “policy preferences” that should have yielded to his concept of the “unified decisionmaking” of the executive branch. I beg to differ. JAG opposition to harsh physical interrogation techniques was a reflection of an analysis of the fundamental principles of human decency that underpin law in this country, not to mention around the globe.

[24] 24 Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (Little, Brown & Co., 2007).

The politics of all this is part of the freak show that passes for US cable news. I don't want to go there; and I hope you'll respect my wishes on that point. If VP Cheney is indicted (here or elsewhere), you can be assured I will report on that in detail.

In the meantime, be my guest if you want to dissect the Yoo memos line by line; review the DoD orders re: detainees; and discuss US and German cases re detainees and torture - in short, law, not politics.

[jmm99]

From last nite's SCOTUSBlog (http://www.scotusblog.com/wp/analysis-some-movement-on-bagram/#more-10772), and the Washington Post (http://www.washingtonpost.com/wp-dyn/content/article/2009/09/12/AR2009091202798.html):


Analysis: Some movement on Bagram?
Sunday, September 13th, 2009 11:00 pm | Lyle Denniston

Analysis

For almost all of the time it has been in office, the Obama Administration has held to the position that the Supreme Court’s ruling in 2008 giving some terrorism suspects a right to challenge their detention by the U.S. military does not apply, in any way, to prisoners being detained at Bagram air base in Afghanistan — a prison population now said to number more than 600.

On Monday, the Administration is expected to spell out its views anew, amid hints that it may be willing to let the Bagram detainees have some rights — though considerably fewer rights than detainees at Guantanamo Bay in Cuba have under the Supreme Court’s decision 15 months ago in Boumediene v. Bush.

From what has appeared over this past weekend in a series of leaks to selected news organizations, seemingly originating mainly at the Pentagon, it seems that the Administration is going to try to shore up its case against court-ordered declaration of rights at Bagram by saying it is going to make some procedural reforms there on its own.

Monday is the deadline for the Administration to file its appeal brief in the D.C. Circuit Court in the combined cases of three Bagram prisoners who, a federal judge ruled last April, have rights to pursue habeas challenges under Boumediene. The judge, however, has put that ruling on hold pending the Administration’s appeal to the Circuit Court. The new position on Bagram could be spelled out in that filing. .... (longer analysis by Lyle)

and:


U.S. Gives New Rights To Afghan Prisoners
Indefinite Detention Can Be Challenged
By Karen DeYoung and Peter Finn
Washington Post Staff Writers
Sunday, September 13, 2009

Hundreds of prisoners held by the U.S. military in Afghanistan will for the first time have the right to challenge their indefinite detention and call witnesses in their defense under a new review system being put in place this week, according to administration officials.

The new system will be applied to the more than 600 Afghans held at the Bagram military base, and will mark the first substantive change in the overseas detention policies that President Obama inherited from the Bush administration.
.....
Under the new rules, each detainee will be assigned a U.S. military official, not a lawyer, to represent his interests and examine evidence against him. In proceedings before a board composed of military officers, detainees will have the right to call witnesses and present evidence when it is "reasonably available," the official said. The boards will determine whether detainees should be held by the United States, turned over to Afghan authorities or released. For those ordered held longer, the process will be repeated at six-month intervals.

The Bagram system is similar to the annual Administrative Review Boards used for suspected terrorists at the U.S. military prison at Guantanamo Bay, Cuba. Officials said the review proceedings at Bagram will mark an improvement in part because they will be held in detainees' home countries -- where witnesses and evidence are close at hand. ....

My take: This is simply old wine in a new bottle, with not much change in the label - in short, a halfway measure that will end up satisfying no one. In fact, given the checkered history of the Gitmo CSRTs, the described Bagram program starts off with two strikes against it.

So, to be practical, the Obama administration would probably find it much cheaper and better PR-wise to assign a number of "Federal magistrates" to Bagram, who would be independent of any command influence. A Federal magistrate in our Article III Federal District courts is the judicial officer subordinate to District judges. The magistrate handles preliminary hearings (bail, probable cause, motions, discovery); and is not an Article III judge. My proposed "Bagram magistrate" would cover the same ground. The office could be created legislatively under joint presidential and congressional powers. I don't expect to see that option exercised.

In addition to events at Bagram, a large number of appeals are pending before the DC and other circuits involving cases pertinent to this thread. Some appeals are also pending before SCOTUS. I've been waiting for some decisions to report - I expect we will see a number of them in coming months.

[davidbfpo]

JMM,

Apologies for the delay in posting.

BBC News reports SIS (MI6) have referred an officer to the Attorney General and the police will no winvestigate: http://news.bbc.co.uk/1/hi/uk/8250805.stm revolves around allegations of complicity in torture and note officialdom says this case is seperate from Binyam Mohammed.

BBC News report on a 'Control Order' (home detention plus) being withdrawn: http://news.bbc.co.uk/1/hi/uk/8240997.stm and states
A terror suspect has been released from a control order because ministers did not want to reveal secret intelligence at public court hearings in his case.

One person held on similar home detention, on immigration grounds, has been interviewed: http://www.julyseventh.co.uk/j7-interview-hussain-al-samamra.html and more details on the campaign etc on similar cases is on: http://www.slowtorture.com/

There are twenty such orders and many suspect they will too lapse.

davidbfpo

[jmm99]

The saga of continuing investigations into "torture", "enhanced interrogation" and "extraordinary rendition" continues on both sides of the Atlantic (UK and US). At some point in time, one can expect a case, criminal or civil, to reach a merits hearing (trial) where the actual evidence (as opposed to allegations) can be subjected to cross-examination by both sides. Only then can we know something that comes as close to the "truth" as we can get. In the meantime, we can only be patient.

The UK stories, about the control orders (home detention+) and long-term confinement pending extradition, struck me as odd (or possibly inaccurate).

As to the control orders, these seem applicable to UK legal residents and citizens, who are not being held under some sort of Laws of War concept and who have not been charged with specific criminal charges.

We did have one case (Ali al-Marri - cited in some 20 posts (http://council.smallwarsjournal.com/search.php?searchid=1894857) in this thread), which involved a US legal resident detained in custody under a Presidential order as an alleged member of AQ. Al-Marri pleaded guilty in Federal court to one count of conspiring with others to provide material support to AQ (30 Apr 2009), a charge carrying a 15-year maximum (he spent about 5-1/2 years in custody). He has not been sentenced yet - the current controversy (http://www.pjstar.com/news/x1595418228/Judge-denies-al-Marri-total-access-to-documents-requested-for-sentencing-hearing) being over what documents will be produced at his sentencing hearing.

The al-Marri case was a definite mess. AG John Ashcroft felt that al-Marri, as a legal resident in the US, had to be charged under Federal criminal law, not under the LOAC. President Bush overruled Ashcroft, determined that al-Marri was an "enemy combatant", and ordered him detained under the LOAC. A series of Federal court actions resulted in some mixed decisions, finally reaching SCOTUS. The Obama DoJ then cut a deal with al-Marri; thereby avoiding a SCOTUS decision that quite possibly would have ordered al-Marri freed from LOAC detainment, but still subject to criminal charges.

It appears that there is a similar UK constitutional problem with control orders.

The UK case involving secret evidence also seemed odd - although various US cases (mostly civil suits involving the CIA) have been settled because of reluctance to disclose classified data (so-called "graymail" cases). Generally, in the many detainee cases, classified evidence has not been a problem. The evidence is disclosed to the court and to the detainees' lawyers (who have the required security clearances) - redacted in the public opinions, set out in full in the classified opinions and annexes. Anyway, it seemed odd that secret evidence would have to be disclosed (publically, I am supposing ?) in the UK proceeding.

Finally, I was surprised (if it is true) that someone could be held for 10 years pending an UK extradition hearing. I looked over the Michigan extradition procedure which in the normal process calls for an immediate hearing before a judge, where the detainee can (1) waive hearing and consent to extradition; (2) demand an immediate hearing on the sufficiency of the extradition documents; or (3) demand a habeas corpus hearing which is also an expidited process (we are talking days, not years).

There is an alternative process (aimed at a fleeing felon situation) where an arrest can precede preparation of the detailed paperwork required in the normal extradition process. In that type of case, the detainee is again immediately brought before a judge who can grant bail, or order a 30-day detention (with another 30-day extension) for the requisite paperwork to be prepared. And, the detainee can, at any time, file for a habeas corpus hearing.

I find it hard to believe that UK and Michigan procedures would be that much different - so as to allow a 10-year detention without a hearing, unless some very special circumstances were involved.

-------------------------------

"Immediate" in Michigan normally means the next working day after detention.

[jmm99]

SCOTUSBlog has two links to the Obama DoJ brief (http://www.scotusblog.com/wp/u-s-no-habeas-rights-at-bagram/) re: habeas rights at Bagram, and to the refined DoD regulations providing a series of status hearings for detainees at that facility (an Addendum (http://www.scotusblog.com/wp/analysis-new-detention-filter-at-bagram/) to the brief).

The brief and addendum add to about 100 pages and reference a nuimber of other documents, which I have to find online, download and read. I expect I will have some thoughts later in the week.

[davidbfpo]

JMM,


The UK case involving secret evidence also seemed odd....Anyway, it seemed odd that secret evidence would have to be disclosed (publically, I am supposing ?) in the UK proceeding.

The immigration court, SIAC has a procedure for secret evidence to be presented, as do our criminal case Crown Courts - with all manner of caveats; my understanding is that the appeal against SIAC judgements goes to the civil High Court, which does not have such procedures. Hence the reluctance of the Home Office, who present cases in SIAC cases, to go to the High Court and have to present secret evidence.


Finally, I was surprised (if it is true) that someone could be held for 10 years pending an UK extradition hearing.

We have a number of cases regarding extradition where every legal avenue, nay trick, has been used to delay the process. Yes, there was a terrorist related case, involving a French request for extradition and he was in UK custody for ten years; see: http://en.wikipedia.org/wiki/Rachid_Ramda

My recollection is that there is another case, non-terrorist, involving a request from Hong Kong and the prisoner has been in custody possibly now fourteen years. the case started when Hong Kong was a colony i.e. pre-1997. cannot readily locate a citation.

davidbfpo

[jmm99]

Hi David,

The 10-year delays to which I was referring were from this one (http://www.slowtorture.com/) of your links, which claims:


For example, Khalid Al-Fawwaz has been held under an Extradition Request to the United States since 1998. There has been no evidence as such put forward, only allegations by the United States, and this “evidence” is said to consist of statements of two anonymous witnesses who cannot be questioned by his legal team. Dr Abdel-Bary is also subject to the same procedures, with a similar standard of proof. To put these cases in perspective, this is over 10 years in prison, a time frame that amounts to a life sentence in some cases.

In thinking back about posts on this thread, I remembered your question (http://council.smallwarsjournal.com/showpost.php?p=80092&postcount=367) about a US detainee (extradited from the UK in 2007 without trial yet) based on a Mother Jones article. I searched the case and came up with the PACER docket card showing near 100 docket entries in the case record (http://council.smallwarsjournal.com/showpost.php?p=80120&postcount=368) - which more than justified the delay and with much caused by the defense.

I believe the actual court record in that case proved that the Mother Jones' article was very spun - and a form of lawfare. I suspect the Slow Torture article is of the same ilk. I've gotten to the point where I give no credence to any article concerning these "terrorist" cases (including my own) unless there are, or I can find, links to the original court records.

--------------------------------------
To compare international extraditions with our state to state extraditions is not an exact comparison because most states have adopted the uniform acts governing extradition and rendition. So, the states involved are on the same page and the proofs and processes required are standardized.

Thus, the proof required of Alabama if Slap finds that one of his felons flees to Michigan - MCL 780.3 (http://law.onecle.com/michigan/780-criminal-procedure/mcl-780-3.html):


780.3 Form of demand.

Sec. 3.

Form of demand. No demand for extradition of a person charged with a crime in another state shall be recognized by the governor unless in writing, accompanied by the following papers:

(1) Governor's requisition under the seal of the state;

(2) Prosecutor's application for requisition for the return of a person charged with crime, wherein shall be stated:

(a) The name of the person so charged;

(b) The nature of the crime;

(c) The approximate time, place and circumstances of its commission;

(d) That the accused was present in demanding state at the time of commission of alleged crime;

(e) That he thereafter fled from the state;

(f) The state in which he is believed to be, including the location of the accused therein, at the time the application is made; certifying that, in the opinion of the said prosecuting attorney, the ends of justice require the arrest and return of the accused to the demanding state for trial, and that the proceeding is not instituted to enforce a private claim;

(3) Verification by affidavit of said application, which shall be accompanied by certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge or magistrate, and the warrant issued thereupon, stating the offense with which the accused is charged, or of the judgment of conviction or of a sentence imposed in execution thereof, together with a statement by executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. Affidavits or documents as the prosecutor may deem proper may be submitted with such application;

(4) Executive warrant, under the seal of the state, authorizing agent, therein named, to receive the person demanded;

(5) The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment or conviction or sentence must be authenticated by the executive authority making the demand.

Michigan's governor then would usually order the case investigated - 780.4 (http://law.onecle.com/michigan/780-criminal-procedure/mcl-780-4.html):


780.4 Investigation by governor.

Sec. 4.

Governor may investigate case. When a demand shall be made upon the governor of this state by the executive authority of another state for the surrender of a person so charged with crime, the governor may call upon the attorney general or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered.

The next step is issuance of a warrent and detention of the extraditee - 780.6 (http://law.onecle.com/michigan/780-criminal-procedure/mcl-780-6.html):


780.6 Governor's warrant; issuance; recitation of facts; revocation of bail.

Sec. 6.

If the governor decides that the demand should be complied with, he or she shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to any peace officer or other person who the governor determines is fit to entrust with the execution of the warrant. The warrant shall substantially recite the facts necessary to the validity of its issuance. If the person was released on bail, the court shall immediately revoke bail and shall not release the person on bail but shall detain the person subject only to habeas corpus review.

Note the door to habeas corpus review is left open.

-------------------------------------
The difference in procedure between Crown Courts and High Courts brought back memories of the clashes between Common Pleas and King's Bench, as well as Chancery with both, which I first studied in English Legal History. Though the names have changed (attached (http://wapedia.mobi/en/Courts_of_England_and_Wales) - with SCUK to replace the House of Lords, 1 Oct 2009), the relative independence of the various courts seems to persist.

Cheers

Mike

[jmm99]

For those not familiar with the State and Federal judicial systems, here are a couple of links, which may help understanding.

Organizational Chart of Michigan Courts (http://courts.michigan.gov/scao/resources/other/OrgChart.pdf). Michigan and other states have gone more and more to the "One Court of Justice" system. In small counties (like mine, with 3 judges), they can divide the work between the judges to get a better balance in case load. E.g., in Houghton Co, the District Judge has enough work to keep busy in his own court, but can fill in when needed in the Circuit and Probate Court. The Probate and Circuit Judges split the work of the Circuit Court (Family Division).

A description of each Michigan court (with many links) is here (http://courts.michigan.gov/scao/selfhelp/intro/court.htm).

The Federal system is simpler (leaving aside a number of specialized courts): District Courts, Courts of Appeal and SCOTUS (which also hears appeals on Federal Questions from state supreme courts). A good overview is Understanding the Federal Courts (http://www.uscourts.gov/understand03/media/UFC03.pdf) - org chart on p.10 of pdf & map on p.12. E.g., I'm in the Western District of Michigan (http://www.miwd.uscourts.gov/) (HQ at Grand Rapids; branch courthouse at Marquette, 100 miles away); and Sixth Circuit (http://www.ca6.uscourts.gov/internet/index.htm) (Court of Appeals, covering MI, OH, KY & TN with HQ at Cincinnati).

The interplay between Federal and State courts is illustrated by a short course, Understanding Federal and State Courts - Case Study (http://www.uscourts.gov/outreach/resources/fedstate_casestudy.htm), which involves two Michigan cases. Although the cases (based on the same facts and parties) resulted in two diametrically opposed decisions, both decisions were correctly decided. Read the study; it is a good example of how Federalism works.

Hoping this will be useful in understanding the US justice system.

[jmm99]

Al-Shibh is one of 5 defendants in United States of America v. Khalid Sheikh Mohammed, et al., pending before Military Commissions at Gitmo. His attorneys recently filed a Petition for Writs of Mandamus and Prohibition before the DC Circuit. The DoJ has now responded.

Al-Shibh's filing and the DoJ's response are here (http://www.scotusblog.com/wp/wp-content/uploads/2009/09/Bin-Al-Shibh-filing-9-9-09.pdf) and here (http://www.scotusblog.com/wp/wp-content/uploads/2009/09/US-oppn-Bin-Al-Shibh.pdf).

The KSM Five are the most meaningful of the various Gitmo cases. The present state of the KSM cases are outlined by SCOTUSBlog (http://www.scotusblog.com/wp/decision-soon-on-911-trials/):


Decision soon on 9/11 trials
Wednesday, September 16th, 2009 3:24 pm | Lyle Denniston

The Justice Department told a federal court Wednesday that it expects to decide in the next 60 days whether to try in civilian court or military court those accused of taking part in the terrorist attacks of Sept. 11, 2001. It did so as it moved to head off a sweeping challenge to the entire system of terrorism trials in specialized military tribunals, created by Congress three years ago. ...

Ramzi Bin Al-Shibh, who has been in U.S. custody for seven years, and has been held at Guantanamo Bay for the past three years. Facing a series of war crimes charges, related to the 9/11 attacks anc carrying a potential death sentence, Al-Shibh is attempting to shut down entirely the military commission that is now scheduled to try him. Earlier this month, his lawyers mounted a broad constitutional challenge to the entire commission system, and asked that all proceeding in his case be brought to a halt. ....

Generally, appellate courts are loath to grant extraordinary writs (e.g., mandamus - to require a lower court to act in a certain way, and prohibition - to prohibit a lower court from acting in another certain way). However, the present, rather confused status of military commissions and what appeals are allowed from them, may require application of a "new normal". The DC Circuit will probably tell us in the near future.

Of more interest and importance, is the apparent confusion among the Obama DoJ and DoD about what to do with these very important cases (now still pending without a compass some 8 years after the event for which the 5 are charged), as outlined by SCOTUSBlog:


But, even while resisting all of Bin Al-Shibh’s legal thrusts, the Department did not indicate that it wants the military commission trial of Al-Shibh to go ahead with pre-trial proceedings that are already scheduled. Instead, it disclosed that it will ask for a 60-day delay of all of the case because of new developments that will be unfolding in coming weeks.

First, it said, Congress may complete action sometime in November or December on a series of reforms of the military commission system for trying terrorism charges. That could produce “substantial” changes, it said, and the Circuit Court should await those.

Second, it said, the Obama Administration is moving forward with a review of the prospects for prosecuting detainees at Guantanamo Bay, including Bin Al-Shibh. Prosecution teams from the Defense and Justice Departments, it said, are reviewing Al-Shibh’s case “and will be making recommendations shortly” on whether his prosecution should go forward and, if so, in what courts.

It added: “Within the next 60 days, the Attorney General, after consulting with the Secretary of Defense, will determine whether [Al-Shibh's] case should be prosecuted in an Article III court or remain before a military commission.” The brief thus suggested that the Circuit Court “should decline at this time to consider the request for extraordinary relief to stop further military commission proceedings,” including a mental competency hearing now set for Sept. 21 at Guantanamo.

A might confusing, perhaps ?

[jmm99]

and two screads from Andy Worthington as well.

For those tired of hearing me talk (including myself), here are two articles which present differing conservative views on the pending appeals from Judge John Bates' decisions allowing habeas review for 3 Bagram detainees - as well as the refined Obama regulations for status review of all Bagram detainees.

Brief note: I would classify Judge Bates as center-right politically; and I thought the 3 cases were close calls (even though I would have flipped the coin in the other direction from Judge Bates - here (http://council.smallwarsjournal.com/showpost.php?p=69290&postcount=249), here (http://council.smallwarsjournal.com/showpost.php?p=69768&postcount=255) & here (http://council.smallwarsjournal.com/showpost.php?p=75618&postcount=345)).

The two differing conservative op-eds are:

Andy McCarthy at National Review, A New Declaration of Independence (http://article.nationalreview.com/print/?q=NzIyZjZhMjZhODFkYWQ2MWM0MDA4M2ZmNDQ0M2QzM2E=).

Dave Rittgers at the Cato Institute, Bagram, Habeas, and the Rule of Law (http://www.cato-at-liberty.org/2009/09/16/bagram-habeas-and-the-rule-of-law/).

Now, for a far different view of Bagram and the refined procedures, I give you Andy Worthington, who sees the Obama administration (on these issues) as George W. Bush and Dick Cheney re-instated in office.

Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) - 14.9.09 (http://www.andyworthington.co.uk/2009/09/14/obama-brings-guantanamo-and-rendition-to-bagram/).

Is Bagram Obama’s New Secret Prison? 15.9.09 (http://www.andyworthington.co.uk/2009/09/15/is-bagram-obamas-new-secret-prison/).

Enjoy the differing viewpoints, while I go out and talk with the crickets.

PS: Judge Colleen Kollar-Kotelly has issued an non-classified Order (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2002cv0828-643) (her Classified Memorandum Opinion is supposed to be redacted and de-classified by 25 Sep), granting habeas to Fouad Al Rabiah, as reported by Reuters (http://news.yahoo.com/s/nm/20090918/ts_nm/us_guantanamo_kuwait).


U.S. judge orders Kuwaiti held at Guantanamo freed
Thu Sep 17, 10:38 pm ET
WASHINGTON (Reuters) – A U.S. judge on Thursday ordered the Obama administration to release another Kuwaiti detainee held at the controversial U.S. military prison at Guantanamo Bay, Cuba.

Judge Colleen Kollar-Kotelly ordered that Fouad Al Rabiah be released from the detention facility where he has been held for more than seven years on charges of conspiracy and providing material support to the Taliban and al Qaeda.

The U.S. government has accused Al Rabiah, a Kuwaiti Airlines manager, of providing money to al Qaeda leader Osama bin Laden and helping to coordinate and support Taliban fighters in the mountainous Tora Bora region in Afghanistan.

Bin Laden is believed to have escaped through the area as U.S. forces and their allies overran Taliban and al-Qaeda positions.

But Al Rabiah's lawyers said the case was based on mistaken identity and that their client was in Afghanistan in October 2001 coordinating deliveries of aid supplies from Iran to refugees.

A Justice Department spokesman said the agency was reviewing the decision. .....

More news on this one in a week or so.

[jmm99]

This case will be all over the cable news today, but here is CNN's take (http://www.cnn.com/2009/CRIME/09/20/terror.probe/index.html) (as of writing this):


3 men in terror probe charged with making false statements
updated 9:12 a.m. EDT, Sun September 20, 2009

AURORA, Colorado (CNN) -- Federal agents have charged a 24-year-old Colorado resident, his father and another man with making false statements during an extensive terror investigation that stretches to Pakistan.

The Justice Department said Sunday it is investigating several other people in connection with the plot to detonate bombs in the United States.

Najibullah Zazi and his father, Mohammed Wali Zazi -- both originally from Afghanistan -- were arrested Saturday night. They were handcuffed without incident after authorities raided Zazi's home in the Denver suburb of Aurora.

An acquaintance of the two men, Ahmad Wais Afzali, of Queens, New York, was also arrested. Afzali is a legal permanent resident from Afghanistan, as is Najibullah Zazi. Mohammed Wali Zazi is a naturalized U.S. citizen.

"Each of the defendants has been charged by criminal complaint with knowingly and willfully making false statements to the FBI in a matter involving international and domestic terrorism," the Justice Department said in a statement.

"It is important to note that we have no specific information regarding the timing, location or target of any planned attack," said David Kris, assistant attorney general for national security. .... (much more in story)

This item was first mentioned here at SWC by Slap about 4 days ago (http://council.smallwarsjournal.com/showpost.php?p=82644&postcount=328).

"Giving false information" charges are a fairly common (and legally valid) means of putting a hold on persons suspected of more severe charges in order to allow evidence to be gathered and checked to see whether enough evidence exists to justify the more severe charges.

We have the following online:


Criminal complaint against Najibullah Zazi (PDF (http://i.cdn.turner.com/cnn/2009/images/09/20/n.zazi.pdf)) - the Denver son.

Criminal complaint against Mohammed Wali Zazi (PDF (http://i.cdn.turner.com/cnn/2009/images/09/20/m.zazi.pdf)) - the Denver father.

Criminal complaint against Ahmad Wais Afzali (PDF (http://i.cdn.turner.com/cnn/2009/images/09/20/signed.complaint.pdf)) - the son's NY friend.

These documents contain the basic Criminal Complaint, Arrest Warrant and (most important) the Affidavit of the FBI agent (Complainant) in support of the Complaint and Warrant. These are worth reading for substance. They are also worth reading for those who are not acquainted with the documents that initiate a Federal prosecution of this kind (prosecutions pursuant to a Grand Jury indictment are a bit different); and most state prosecutions.

The Affidavit re: the son Zazi has the most meat concerning the underlying (more severe) charges under investigation, together with the Affidavit of the NY friend Afzali. The father Zazi may have only had "false information" involvement - we shall see.

The domestic US cases seem to fit three basic patterns (as to which, there is some legitimate and some illegitimate arguments about classification):

1. AQ members (in effect, their "SOF" teams) - e.g., 9/11 perps.

2. Domestic US insurgents (US citizens, legal resident aliens, illegal resident aliens) linked to AQ by some training and mission support - there have been quite a few of these cases.

3. "Parallel thinkers" (not clearly linked to AQ, but ideological counterparts) - e.g., DC snipers and Arkansas shooter.

The present case, on the basis of its present (limited) facts, fits into the second category - i.e. the theory of COL Jones that AQ is the base for waging unconventional warfare (in its traditional SF sense) via use of domestic insurgent groups who have a common ideology.

From a legal standpoint, that classification has no bearing - homicide is homicide; and a conspiracy to manufacture and use explosive devices is just that. From a military and law enforcement standpoint, classification is important to determine what systems we are confronting (e.g., the nodes of the network and which ones are most important).

In reading the Affidavits (prepared at different times and places), make a chart of the persons and "Individuals" (A, B, C and D). Individual A in one Affidavit is not the same as Individual A in another (i.e., A and B are switched); but if you chart it, the facts all fit together. A Sunday crossword puzzle. :)

[jmm99]

Huffington Post. OK, not one of my usual watering places; but this column by Brian Levin (http://www.huffingtonpost.com/brian-levin-jd/in-new-terrorism-case-a-t_b_292689.html) does a good job of explaining the use of "false information" charges in terrorist cases.


Brian Levin, J.D.
Director, Center for the Study of Hate and Extremism, California State University
Posted: September 20, 2009 01:01 PM
In New Terrorism Case, A Tested Compromise Strategy Emerges

The arrest of three Afghan men this weekend in Colorado and New York on federal charges related to a possible nascent terrorist plot in the United States involving IEDs casts a spotlight on an often ignored, but critical part of the government’s post 9/11 prosecution strategy. All three men were arrested under a longstanding law that makes it a federal felony to lie to an investigator. Prior to 9/11 the statute was as likely to be ignored, as it was to be employed. However, in the post 9/11 era where interdiction before an attack is now the primary objective for authorities, 18 USC §1001 has emerged as the most common charge levied in terrorism related cases.

The use of this statute may have very well prevented a variety of mass terrorist attacks as it is a quick and effective way of getting violent prone extremists off the streets early--before an attack takes place. These dangerous folks often crack and lie under the gauntlet of professional interrogators aided by intensive search techniques. Civil libertarians argue, however, that this strategy often ensnares unsophisticated blowhards whose threat potential is minimal or overblown. The fact that the strategy is purposefully preventative in nature means that in many cases we’ll never be able to conclusively prove how bad the threat actually was. .......
.....
United States Federal Terrorism Related Trials By Type of Offense Charged Through 2005

Crime & No. Convictions

Lying to Investigators - 75
Terrorism/National Security - 46
Travel Documents - 30
Conspiracy - 29
Racketeering - 27
Immigration - 22

Note: Some individuals were convicted of more than one type of crime. Source: Eggen, D., Washington Post, June 12, 2005

Most all can agree with his conclusion:


One thing is certain, authorities have powerful tools to get people off the streets in the array of statutes that they have at their disposal. They also have an extraordinarily difficult job of balancing their obligations. On the one hand they must uphold civil liberties, while also protecting us from the very real threat of a small, but determined number of anonymous extremists bent on doing the nation harm through a mass terror attack.

[jmm99]

As to Zazi (the son), the ante was upped by filing of an indictment charging him with Conspiracy to Use WMD.

There are three DoJ filings:

Press Release (http://www.usdoj.gov/opa/pr/2009/September/09-ag-1017.html)

Indictment (http://www.usdoj.gov/opa/documents/zazi-indictment.pdf) (this is a 2-page "notice pleading" indictment - which will be fleshed out in further pleadings and discovery).

Detention Memorandum (http://www.usdoj.gov/opa/documents/zazi-detention-memo.pdf) - which has a proffer of the basic evidence against him.

The "others" in the conspiracy remain unnamed.

[jmm99]

Michael C. Finton, aka., “Talib Islam,” - arrest at Springfield, IL - charges of attempted murder of federal employees and attempted use of a weapon of mass destruction - DoJ Press Release (http://springfield.fbi.gov/dojpressrel/2009/si092409.htm). Finton is a US citizen and apparent convert to Islam, motivated by his view of John Walker Lindh.

Hosam Maher Husein Smadi - arrest at Dallas TX - charge of attempted use of a weapon of mass destruction - DoJ Press Release (http://dallas.fbi.gov/dojpressrel/pressrel09/dl092409.htm). Smadi is a Jordanian national and an illegal US resident.

Both of these operations were stings of persons who had already started down the path to AQ. The two were not apparently linked, based on the summary of evidence given in the press releases. Nor, was either linked to the Zazi case.

More on these and Zazi case as they develop.

[Greyhawk]

...attached copy of the amicus curiae brief which we filed with the United States Court of Appeals for the District of Columbia Circuit on behalf of the Special Operations community on Monday evening.

We believe that this unique brief has the potential to play an important role in the Court of Appeals’ consideration of Maqaleh v. Gates. We are especially optimistic that the Court will value the insight that only veterans of Special Operations can offer as to the extremely adverse operational consequences that would flow from upholding the District Court’s decision. ...
pdf at Mike Yon's (http://www.michaelyon-online.com/maqaleh-v.-gates-amicus-brief.htm)

[jmm99]

Daniel Patrick Boyd aka "Saifullah", and others were originally indicted for conspiracy to commit terrorist acts against targets outside of CONUS. A Superseding Indictment on 24 Sep charges defendants, Daniel Patrick Boyd, aka "Saifullah" and Hysen Sherifi, with conspiracy to murder U.S. military personnel via a planned attack on Quantico - DoJ Press Release (http://www.usdoj.gov/opa/pr/2009/September/09-nsd-1023.html).

Greyhawk: I rapidly skimmed the "SOF Brief" - some points have a likelihood of being accepted; other points seem unlikely to be accepted. I suppose at some time I'll have to lay out the arguments in this case, which in the end is going to have to be decided by the Supreme Court. Thanks for the citation to the brief.

[jmm99]

A number of opinions were filed in the DC District Court during the period 18 Aug - 25 Sep dealing with habeas cases. Unfortunately, I simply do not have the time to analyse each of those opinions. So, for purposes of providing links, I will simply list them, with very brief descriptions.

An ongoing update of all DC District habeas cases is at Orders and Opinions (http://www.dcd.uscourts.gov/public-docs/aggregator/sources/1).

Civil Action No. 2006-1697 (WAZIR et al v. RUMSFELD et al) - Doc No. 43 (memorandum opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2006cv1697-43)) by Judge John D. Bates. This is an updated version of his pre-merits hearing opinion[/B] in the al-Maqualah (Bagram) case, allowing 3 of 4 Bagram habeas petitions to proceed, which is presently on appeal to the DC Circuit and the subject matter of the "SOF Brief" linked by Greyhawk.

Civil Action No. 2002-0828 (AL ODAH, et al v. USA, et al) - Doc No. 645 (memorandum opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2002cv0828-645)) by Judge Colleen Kollar-Kotelly. This is a merits hearing opinion granting al-Al Rabiah's habeas petition, where the case hinged on the weight to be given statements made by him and other detainees adverse to him. SCOTUSBlog has its analysis of the opinion (http://www.scotusblog.com/wp/analysis-critique-of-detainee-confessions/#more-11110).

Civil Action No. 2005-2386 (JABBAROV et al vs. BUSH et al) - Doc No. 1453 (memorandum opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv2386-1453)) by Judge Reggie B. Walton. This is an extensive opinion dealing with the scope and weight to be given evidence and primarily deals with interrogations and statements - including a section on rules applying weight factors to the language levels of interpreters. As a pre-merits hearing opinion, it is subject to modification and the judge requested added input from both sides.

Civil Action No. 2009-0745 (MOHAMMED ABDULLAH TAHA MATTAN, ET AL. V. BARACK H. OBAMA, ET AL.) - Doc No. 1306 (memorandum and opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0745-1306)) by Chief Judge Royce C. Lamberth. This is an opinion on the scope of discovery to be allowed detainees' counsel, primarily dealing with interrogations and statements.

Civil Action No. 2002-0828 (AL ODAH, et al v. USA, et al) - Doc No. 639 (memorandum opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2002cv0828-639)) by Judge Colleen Kollar-Kotelly. This is a merits hearing opinion denying al-Odah's habeas petition (he was captured with AK in hand).

Civil Action No. 2005-1607 (RABBANI et al v. BUSH et al) - Doc No. 218 (memorandum and opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1607-218)) by Judge Ricardo M. Urbina. This is another pre-hearing opinion on discovery, primarily dealing with interrogations and statements.

Civil Action No. 2005-2379 (AWAD v. BUSH et al) - Doc No. 178 (unclassified memorandum order (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv2379-178)) by Judge James Robertson. This is a merits hearing opinion denying Awad's habeas petition (he was not captured with AK in hand, but close).

Civil Action No. 2005-2386 (JABBAROV et al vs. BUSH et al) - Doc No. 1408 (memorandum opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv2386-1408)) by Judge Reggie B. Walton. This is another pre-hearing opinion dealing primarily with the admission of hearsay evidence and the weight to be given to different levels of hearsay.

Civil Action No. 2008-1101 (KHAN v. BUSH et al) - Doc No. 133 (memorandum opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1101-133)) by Judge John D. Bates. This opinion denied the detainee's motion to grant habeas on the pre-hearing record - not a common motion in these proceedings. Judge Bates denied the motion (despite having reservations about 50% of the DoJ's evidence so far submitted).

----------------------------------------------------
Who can be detained ?

The following opinion deals with the basic law of detention, as opposed to where habeas is available or what evidence is required.

Civil Action No. 2004-1194 (ANAM et al v. BUSH et al) - Doc No. 563 (memorandum opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1194-563)) by Judge Thomas F. Hogan. This opinion sets out the basic test to be used by Judge Hogan in determining whether a detention is lawful. That test follows that adopted by three other DC judges - in Judge Hogan's own words (pp.2-3):


In particular, the Court recognizes that at least three Merits Judges have adopted the conclusions of Judge Bates’s opinion in Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009). [1]


[1] See Mattan, 618 F. Supp. 2d at 26 (“The Court hereby adopts [the Hamlily] opinion.”); Awad v. Obama, 2009 WL 2568212, at *2 (D.D.C. Aug. 12, 2009) (Robertson, J.) (“I have adopted Judge Bates’ approach.”); Al Mutairi v. United States, 2009 WL 2364173, at *4-5 (D.D.C. July 29, 2009) (Kollar-Kotelly, J.) (“[T]he Court shall adopt the reasoning set forth in Judge John D. Bates’s decision in Hamlily v. Obama.”).

In Hamlily, Judge Bates declined to adopt the government’s framework in its entirety. Judge Bates concluded that the AUMF and laws of war authorize the detention of those who are “part of” the Taliban, al-Qaida, or associated forces. Id. at 69-70. However, he rejected the concepts of “substantial support” and “directly support[ing] hostilities” as independent bases for detention. Id. at 69. Neither basis, he explained, is warranted by domestic law or the laws of war. Id. With respect to the criteria for determining whether a person was “part of” the Taliban, al-Qaida or associated forces, Judge Bates “employ[ed] an approach that is more functional than formal, as there are no settled criteria for determining who is a ‘part of’ an organization such as al Qaeda.” Id. at 75. Under this functional test, “evidence tending to demonstrate that a petitioner provided significant ‘support’ is relevant in assessing whether he was ‘part of’ a covered organization (through membership or otherwise) or ‘committed a belligerent act’ (through direct participation in hostilities).” Id. at 70.

The Court hereby adopts the Hamlily opinion. Accordingly, the Court concludes that the governing framework in the above-captioned case will be as follows:


The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act in aid of such enemy armed forces.

The Court notes that this precise framework has been adopted by multiple Merits Judges, and is not inconsistent with Judge Walton’s opinion in Gherebi v. Obama, 2009 WL 1068955 (D.D.C. Apr. 22, 2009), as applied. [2]


[2] The difference between this Court’s framework and the framework adopted by Judge Walton is largely one of form rather than substance. Though accepting the government’s framework, Judge Walton expressed his “distaste” for the government’s reliance on the term “support.” Gherebi, 2009 WL 1068955 at *23. He clarified that he was adopting the framework, “provided that the terms ‘substantially support’ and ‘part of’ are interpreted to encompass only individuals who were members of the enemy organization’s armed forces.” Id. at *24.

The tests used by Judge Richard Leon and Judge Gladys Kessler differ slightly from those stated above. The methodologies used by Judges Leon and Kessler differ greatly from one another - perhaps explained by their different "life experiences" and judicial dispositions (search this thread for their opinions and you shall be educated as to what I mean).

[davidbfpo]

I missed some of the media "spin" around the recent arrests in the USA, but this report based on court documents is interesting: http://www.cbsnews.com/stories/2009/09/25/tech/main5339112.shtml

Whether the documents should be so detailed and in public is a moot point. Revealing methods of investigation etc to other terrorists (don't they know?).

From the UK viewpoint such reports make a fair jury trial difficult.

davidbfpo

[jmm99]

Hi David.

When the Zazi case goes to trial (a year or 2 hence; and if he doesn't plea bargain), most jurors in the array (the large pool from which the trial jurors will be selected) will not have read in depth the present media coverage - other than the headlines. Those who have read are likely to have forgotten much of what they read - or probably will have discounted it anyway.

Jury bias because of media coverage - except at the time of trial - has not generally been a common problem, even in the small county where I live. The trial judge will probably do, and also allow the lawyers, extensive questioning of each juror. Ironically, they may learn much more about the case from the questions than they knew before they walked into the courtroom.

The DoJ could have gone the classified evidence route and sealed the affidavits, etc. That is quite common and the orders and opinions will reflect when that is done - as in the al-Rabiah opinion (in my post prior to yours), where the specific evidentiary items are so redacted that I could not really tell whether I would have flipped the coin the same way as the judge or not.

Stay cheerful

Mike

[jmm99]

The Supreme Court has granted review on one aspect of "GWOT" cases that we have touched on, but have not discussed much - the criminal charge of providing material support to terrorists. SCOTUSBlog analysis (http://www.scotusblog.com/wp/court-to-rule-on-gun-rights-terrorism-law/#more-11314):


Court to rule on gun rights, terrorism law
Wednesday, September 30th, 2009 10:04 am | Lyle Denniston
....
The Court, while agreeing to return to its monitoring of legal issues stirred up by government anti-terrorism issues, the Court did not take any immediate action on the basic question of federal judges’ power to decide the fate of detainees held at the U.S. military prison camp at Guantanamo Bay, Cuba. It had examined anew a case left over from the prior Term — Kiyemba v. Obama (08-1234) — but the case was not on the grant list released Wednesday morning. The next opportunity for the Court to announce some response to that case will come on Monday, when the new Term formally opens. The specific issue in the case is whether a federal judge may order the release into the U.S. of a detainee no longer considered to be an “enemy.”

The terrorism law case the Court did agree to hear — actually, it involves two petitions, which were linked for argument — involves the “material support” law, which the Justice Department has used to prosecute about 120 individuals. About half of those resulted in guilty verdicts. The Ninth Circuit struck down parts of the law, leading to the government appeal (Holder v. Humanitarian Law Project, 08-1498), and upheld others, leading to the appeal by private challengers (Humanitarian Law Project v. Holder, 09-89).

These two appeals will be briefed and heard over the next nine months.

The same session also decided to hear one of the 3 Second Amendment cases before it (the other two may or may not be later consolidated for hearing and decision).

[jmm99]

The domestic criminal cases based on the charge of providing material support to terrorists have often passed beneath my radar screen - and, generally, have not gotten much publicity in the media. The Gitmo cases, of course, have dominated the media and this thread.

Since SCOTUS has now accepted review of a material support case, they might become more newsworthy. Here are two recent ones. The first case is a guilty plea to a 2007 indictment (it also involved an interesting ponzi scheme). The second case is a current indictment which also involved an added charge of conspiracy to murder.

Abdul Tawala (http://newyork.fbi.gov/dojpressrel/pressrel09/nyfo092909a.htm)


September 29, 2009

Westchester Man Pleads Guilty to Terrorism Financing and Perpetrating Multimillion-Dollar Investment Fraud

PREET BHARARA, the United States Attorney for the Southern District of New York, announced that ABDUL TAWALA IBN ALI ALISHTARI pleaded guilty today to charges of terrorism financing and conspiracy to commit wire fraud. The plea was entered in Manhattan federal court before United States District Judge ALVIN K. HELLERSTEIN.

According to documents filed in this case, including the Information to which he pleaded guilty, and statements made during today's proceeding:

ALISHTARI, 56, of Ardsley, New York, facilitated the transfer of $152,000, with the understanding that the money would be used to fund training for terrorists. In the latter half of 2006, ALISHTARI agreed to discreetly transfer these funds for an undercover officer, believing that the money was going to be used to purchase night vision goggles and other equipment for a terrorist training camp in Afghanistan. During his guilty plea, ALISHTARI admitted that he sent the money from the United States knowing that the funds were to be used to help finance alleged terrorist activity in Pakistan and Afghanistan.

ALISHTARI also pleaded guilty to stealing millions of dollars from victims through his fraudulent operation of a loan investment program he called the "Flat Electronic Data Interchange" ("FEDI"). FEDI was purportedly a high-yield investment program, in which ALISHTARI falsely promised his investors that, in exchange for their investment, they would receive high, guaranteed rates of return. ALISHTARI admitted today that he made false representations and promises with regard to the FEDI program. ALISHTARI also acknowledged that a portion of the money he collected was used to pay personal expenses and for purposes other than the investment program.

ALISHTARI faces a maximum sentence of 20 years in prison on the terrorism financing charge and five years in prison on the wire fraud conspiracy charge; a fine on each count of the greater of $250,000 or twice the gross gain or loss from the offense; and the imposition of restitution and forfeiture.

United States Attorney BHARARA stated: "ALISHTARI today admitted that he stole millions from investors and knowingly financed what he believed to be tools of terror. In enriching himself, ALISHTARI displayed a deliberate disregard for the financial and personal security of others."

Betim Kaziu (http://www.usdoj.gov/usao/nye/pr/2009/2009sep24.html)


September 24, 2009

BROOKLYN RESIDENT INDICTED FOR CONSPIRACY TO COMMIT MURDER OVERSEAS AND CONSPIRACY TO PROVIDE MATERIAL SUPPORT TO TERRORISTS

An indictment was unsealed in federal court this morning charging Betim Kaziu, a U.S. citizen and resident of Brooklyn, with conspiracy to commit murder in a foreign country and conspiracy to provide material support to terrorists. Kaziu is scheduled to be arraigned later today before United States Magistrate Judge Joan M. Azrack, at the U.S. Courthouse, 225 Cadman Plaza East, Brooklyn, New York.

The charges were announced by Benton J. Campbell, United States Attorney for the Eastern District of New York; Joseph M. Demarest, Jr., Assistant Director-in-Charge, Federal Bureau of Investigation, New York Field Office; and Raymond W. Kelly, Commissioner, New York City Police Department.

According to the indictment and other documents filed by the government, in early January 2009, Kaziu devised a plan to travel abroad for the purpose of joining a radical foreign fighter group and to take up arms against perceived enemies of Islam. Kaziu allegedly boarded a flight at John F. Kennedy Airport on February 19, 2009, and traveled to Cairo, Egypt, where he took steps to continue on to Pakistan to obtain training and other support for violent activities. Kaziu also attempted to join Al-Shabbab, a radicalized, militant insurgency group, which has supported Al Qaeda and which has been designated as a terrorist organization by the United States Department of State. In addition, Kaziu made efforts to travel to Afghanistan, Iraq, and the Balkans to fight against U.S. armed forces. To that end, Kaziu attempted on multiple occasions to purchase weapons in Egypt. Ultimately, Kaziu traveled to Kosovo, where he was arrested by Kosovar law enforcement authorities in late August 2009.

[jmm99]

The UK Supreme Court is now blogged at UKSCBlog (http://www.ukscblog.co.uk/):


This blog is dedicated to the UK Supreme Court. The UK Supreme Court is the UK's highest court; its judgments bind lower courts and thus shape the development of English Law. Since 1399, the Law Lords, the judges of the most senior court in the country, have sat within Parliament. From October 2009, however, they have moved to an independent court in the Middlesex Guildhall. To mark this historic development, this blog has been set up to provide commentary on the UK Supreme Court and its judgments.

and in its first editorial (on the same page):


03 October 2009 | Blog Editorial

The launch of UKSC Blog has produced a small ripple of interest in the blogosphere. Tracking the references has enabled us to catch up on some new legal blogs and some old friends.

Thanks, first of all, to our friend Heather Brooke (she of the indispensable Your Right to Know blog (http://www.yrtk.org/)) for her tweet that "It seems at last English lawyers are adapting to the 21st century". We try.

The dynamic Times "Law Central" blog notes our birth and our debt to ScotUSblog - which has also recorded the fact that we have started the blog.

From the Times "Law Central" (http://timesonline.typepad.com/law/2009/10/new-blog-to-track-supreme-court-developments.html):


Oct 01, 2009
New blog to track Supreme Court developments

One exciting development to emerge from the opening of the new Supreme Court is the formation of UKSCBlog, which promises to track cases and news relating to the new court.

Edited by, among others, Dan Tench of Olswang and Hugh Tomlinson, of Matrix Chambers, it will mirror SCOTUSBlog, a popular and impressively comprehensive blog on the American Supreme Court.

There's certainly a place for such a blog here, and there's already plenty of content on it before the court has officially started. Let's hope they can sustain it.

and, of course, a welcome from SCOTUSBlog:


New United Kingdom Supreme Court Blog launched
Friday, October 2nd, 2009 11:38 am | Kristina Moore

Barristers at Matrix and solicitors at Olswang LLP have launched UKSC Blog at http://www.ukscblog.co.uk/ dedicated to covering the United Kingdom Supreme Court, which opened its first session yesterday. Members of Matrix presented the first UK Supreme Court case, on the legality of UN sanctions that freeze assets of suspected terrorists.

The blog will report and comment on the UK Court’s cases and will provide a forum for discussion . Its authors, members of the two law firms, have already posted a number of short editorials and perspective pieces about the Court’s opening.

Like SCOTUSBlog, UKSCBlog will cover the full spectrum of the Court's activities - only a small percentage includes "terrorist" cases.

Interesting, however, is that the first major case taken up by UKSC involves the legality of asset freezes vs. suspected terrorists (in this case, AQ & Taliban). A & Ors v HM Treasury [2008] EWCA Civ 1187 (http://www.bailii.org/ew/cases/EWCA/Civ/2008/1187.html). SCOTUS has just taken up an appeal in the same general area (my last two posts).

SCOTUSBlog tends to be a bit dry (for non-maniacs on Constitutional Law). UKSCBlog may have a bit more flair. All in all, a useful development, which will help to educate the members of the justice systems in both nations in each other's "peculiar" institutions. To paraphrase Winston, we are two nations separated by a Common Law - pretty bad, but I just finished breakfast. ;)

And, so that the hearts of my Canadians not be troubled, we also have The Court (Supreme Court of Canada Blog) (http://www.thecourt.ca/) - which like SCOTUSBlog is linked from the UKSCBlog page.

Regards

Mike

[davidbfpo]

JMM,

I am not that impressed at the arrival of a Supreme Court, which has already cost a lot of money - for a new building and promises to be bureaucratic.

Then on the opening day - with much 'spin" on being open to the public - there was no room for observers, even the press. Better still their first case is behind closed doors.

davidbfpo

[jmm99]

Usually, I stick with court documents and avoid media coverage in these cases. However, this AP article (http://wire.antiwar.com/2009/10/14/ap-sources-al-qaidas-afghan-head-contacted-zazi-9/) is interesting - and points up a legal issue that the courts will eventually have to decide.


AP sources: al-Qaida's Afghanistan leader used middleman to contact NYC terror suspect
ADAM GOLDMAN and BRETT J. BLACKLEDGE
AP News
Oct 14, 2009 18:43 EST

The airport shuttle driver accused of plotting a bombing in New York had contacts with al-Qaida that went nearly all the way to the top, to an Osama bin Laden confidant believed to be the terrorist group's leader in Afghanistan, U.S. intelligence officials told The Associated Press.

Mustafa Abu al-Yazid, an Egyptian reputed to be one of the founders of the terrorist network, used a middleman to contact Afghan immigrant Najibullah Zazi as the 24-year-old man hatched a plot to use homemade backpack bombs, perhaps on the city's mass transit system, the two intelligence officials said.

Intelligence officials declined to discuss the nature of the contact or whether al-Yazid contacted Zazi to offer simple encouragement or help with the bombing plot prosecutors say Zazi was pursuing.
.....
Terrorism experts say al-Yazid's contact with Zazi in the foiled New York City bombing plot underscores the seriousness of the threat.

"I think that it would suggest the Zazi was taken seriously by al-Qaida, and that they wanted him to feel encouraged and supported," said Charles S. Faddis, who headed the weapons of mass destruction unit at the CIA's Counterterrorism Center until he retired in May 2008.

"It may also have meant that they were attempting to determine to what extent he represented an opportunity to do something inside the United States," said Faddis, who also ran operations against al-Qaida. "For instance, they may have been trying to figure out if they were looking only at an individual or at someone who represented a larger group of jihadists."

Sam Faddis' analysis seems reasonable enough.

The lurking issue is what do you do with someone like Mustafa Abu al-Yazid, who for the most part has been on the "soft side" of AQ's unconventional warfare operations (financing and accounting). Is he a combatant who may be killed or captured; or is he a non-combatant subject only to arrest and detention ?

[M-A Lagrange]

Yes we can debate. It is what I am interested in as argue is not so much productive. And I believe it can be very much fruitful.
My legal background is the French code of law, yes. Therefore it is French centric rather than European centric as the British have a different approach of law as well. But as you said, there are several legal answers to the same question. So I would not attach so much my self to the french approach, knowing that I cannot neither complitely forget it. French right is quite rigide compare to US centric right approach. The written law is above all and practice as to follow the law and interpretation are much narrow than in US right, as far as I know.
My posture, I will say, is that the Geneva Convention is an international document which provides with 1907 law of war and the armament protocols a legale frame for war. This legal frame as to be respected by all and written international law (especially for war) primes on practice, “coutume” or practice, national law or even constitution of a country.
My attend is not to criticise for pleasure, it is much more based on the fact that since ever we all have been looking for in a way to conduct war in a moral way. Moral that is transcript is the reality field into law and rights.
I am actually conducting research on the universal character of humanitarism in a moral point of view. For that I have been looking into the ancient codes and laws that came before the Geneva Convention (and protocols), back to Manu code or Hamurabi code... Actually, I am looking at how in every cultures people have been looking into regulating war. And also how those regulation have been affected by the Global War on Terror.
I believe that we can have a really interresting dialog on the legal orientation of war those days.

I would be interrested if we could compare, in a first time, our approach on Mulla Omar code of conduct.
I feel there are many similarities between that code and several US practices or codes or laws. But I also feel that the introduction of practices as the detension out of legal frame have inspired that code. Shall we start there?

[jmm99]

Bonsoir,

The Mullah Omar thread is the definite place to discuss the French and US approaches to both constitutional and international law. We also might also find some Sharia law to comment in the process.

David and I have used this thread more to report UK and US legal developments in the "small wars area" - without getting into too much editorializing (except for me at times ;)).

I'll post something there tonite setting out the basic framework of US law. Without understanding that, it is not possible to understand where international law fits into that framework.

Merci

Mike

[davidbfpo]

The Binyam Mohammed case once again popped up Friday, with a judicial decision to release a CIA summary of what happened to Binyam - a document supplied in an intelligence exchange between the USA and the UK. HMG has indicated it still opposes this - as part of the co-operation between intelligence agencies and need to retain material originating from the USA as confidential.

BBC report on the court and HMG response: http://news.bbc.co.uk/1/hi/uk/8311075.stm and on the 'Special Relationship': http://news.bbc.co.uk/1/hi/uk/8311777.stm

HMG's statement: http://www.telegraph.co.uk/news/newstopics/politics/6349658/Binyam-Mohamed-full-text-of-David-Milibands-statement.html

A more pithy article, including the judge's comments is: http://www.guardian.co.uk/world/2009/oct/16/binyam-mohamed-torture-evidence-miliband

Amidst all the "smoke" is the fact both governments knew Binyam Mohammed was tortured and HMG is fighting to stop a document being released to the public. For once the judge's say it all:


"The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law. Championing the rule of law, not subordinating it, is the cornerstone of democracy."

davidbfpo

[jmm99]

from Google-AFP (http://www.google.com/hostednews/afp/article/ALeqM5jxPh1cfP7Ir_tMaqYM74BJLfODWg):


US judge upholds censoring CIA prisoner testimony
(AFP) – 1 day ago

WASHINGTON — A federal court upheld Friday the US government's decision to censor statements made by Guantanamo Bay detainees about their treatment at Central Intelligence Agency-run prisons.

The American Civil Liberties Union (ACLU), a human rights group, had argued that the government should declassify redacted information contained in statements that detainees made before tribunals at Guantanamo Bay.

But Judge Royce Lamberth of the US District Court for the District of Columbia on Friday declined the ACLU's request, which was made under the Freedom of Information Act.

"The court finds that defendants have shown that damage to national security would reasonably result if the detainees' statements were disclosed, and that defendants did not classify portions of the detainees' statements to conceal violations of the law or prevent embarrassment," Lamberth wrote.

Which proves that great minds do not necessarily run in the same channels. Or, as I've said elsewhere, reasonable people can draw different inferences and interpretations of similar facts.

Both cases will be appealed, so both of us have some guarantee of future employment on this thread. :)

Best regards

Mike

[jmm99]

This case is titled ACLU & ACLU Foundation v DoD & CIA, Civil Action No. 08-437 (RCL), USDC, DC District, 437th case filed in 2008 and assigned to RCL (Royce C. Lamberth, Chief Judge, who assigned himself).

RCL Official Bio (http://www.dcd.uscourts.gov/lamberth-bio.html) and Wiki (http://en.wikipedia.org/wiki/Royce_C._Lamberth). Snips from Bio:


... He served as a Captain in the Judge Advocate General's Corps of the United States Army from 1968 to 1974. After service at Fort Bragg, North Carolina, and in Vietnam, Judge Lamberth served in the Litigation Division of the Office of the Judge Advocate General of the Army at the Pentagon from 1971 to 1974.
....
Judge Lamberth was appointed by Chief Judge Rehnquist to be the Presiding Judge of the United States Foreign Intelligence Surveillance Court on May 19, 1995. His appointment ended on May 19, 2002.

Court Records

Complaint for Injunctive Relief (http://www.aclu.org/images/asset_upload_file734_34472.pdf) - 13 Mar 2008

The complaint sought transcripts involving 14 Gitmo detainees, alleging various media coverage and this:


16. In September of 2006, President Bush revealed that fourteen so-called “high value detainees” had been transferred to Guantánamo after being held incommunicado for up to four years in secret CIA detention facilities, commonly known as “Black Sites.” The President confirmed that the fourteen prisoners were among a larger group that had been detained by the CIA and subjected to “enhanced interrogation techniques.”
....
18. On February 5, 2008, CIA Director Michael Hayden confirmed in testimony to Congress that three of the fourteen prisoners had been subjected to waterboarding, a technique that is intended to make the victim feel as if he is drowning and is categorically prohibited under international law. Greg Miller, Three Were Waterboarded, CIA Chief Confirms, Los Angeles Times, Feb. 6, 2008.

These detainees were named expressly: Khalid Sheikh Muhammad; Abd Al Rahim Hussein Mohammed Al Nashiri; Zayn Al Abidin Muhammad Husayn (“Abu Zubaydah”); and Majid Khan.

First Opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv0437-13): Granting Summary Judgment Dismissing the Complaint - 29 Oct 2008

A number of records were disclosed, but some of them contained redactions of classified material. The crux of the original opinion (and I suspect one rationale of the subsequent appeal) was the judge's reliance on the government's sworn statements, as opposed to looking at the redactions in camara (judge's eyes only):


pp.5-6
Plaintiffs claim that defendants’ declaration is overbroad and conclusory. (Opp’n at 14–16.) Plaintiffs suggest in camera review of the unredacted documents to ensure that only appropriate information has been redacted. (Id.) The Court declines, finding that defendants’ declaration is reasonably specific, nonconclusory, and submitted in good faith. The declaration describes specifically what types of information were withheld and why. (Hilton Decl. ¶¶21–70.) The Court, giving deference to the agency’s detailed, good-faith declaration, is disinclined to second-guess the agency in its area of expertise through in camera review. As plaintiffs note, “[t]he ultimate criterion [for in camera review] is simply this: Whether the district judge believes that in camera inspection is needed in order to make a responsible de novo determination on the claims of exemption.” (Opp’n at 13 (quoting Spirko v. U.S. Postal Serv., 147 F.3d 992, 996 (D.C. Cir. 1998)).) The Court does not believe that in camera inspection is needed here.

The case then went up to the DC Circuit on ACLU's appeal. The DoJ requested a remand to reconsider in light of the Obama administration's refinements in detainee policies. Upon remand, some more material was de-classified, but some redactions remained.

Second Opinion (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv0437-25): Granting Summary Judgment Dismissing the Complaint - 16 Oct 2009

This opinion is longer and more detailed than the first (despite fewer materials to consider). The judge again relied on the government's sworn statements and declined in camara inspection (pp. 6-12; text of part A is not quoted here - too lengthy):


A. Defendants Properly Invoked Exemptions 1 and 3 to Withhold Information
....
1. The Records Are “Intelligence Sources and Methods”
...
2. Disclosure of the Detainees’ Accounts of Interrogation and Imprisonment Reasonably Could Be Expected to Result in Damage to National Security
...
B. In Camera Review Is Not Necessary

Plaintiffs argue that in camera review is “plainly . . . necessary and appropriate” in light of the public disclosure of information relating to defendants’ interrogation program. Ray v. Turner, 587 F.2d 1187, 1191 (D.C. Cir. 1978) (per curiam). The Court, however, finds that in camera review is neither necessary nor appropriate.

District courts have broad discretion when determining whether to conduct in camera review. Ctr. for Auto Safety v. EPA, 731 F.2d 16, 20 (D.C. Cir. 1984). In FOIA cases, courts should conduct in camera review only as a last resort. See NLRB v. Robbins Tired & Rubber Co., 437 U.S. 214, 224 (1978). Indeed, in camera review should only occur when the court “believes that in camera inspection is needed in order to make a responsible de novo determination on the claims of exemption.” Ctr. for Auto Safety, 731 F.2d at 21 (quoting Ray, 587 F.2d at 1195).

Here, the Court concludes that Ms. Hilton’s declaration is sufficiently detailed that in camera review is not necessary to conduct a de novo review of defendants’ decision to withhold information under Exemptions 1 and 3. The declaration states that the documents were reprocessed in light of the government’s disclosures about defendants’ interrogation program. (Hilton Decl. ¶ 24.) The declaration then explains why information remains redacted. (Id. Parts IV-V.) Plaintiffs make no credible claims that defendants have withheld the information in bad faith after reprocessing the documents. Accordingly, the Court declines to undertake in camera review of the documents.

This decision will re-visit the DC Circuit on the ACLU's appeal.

[jmm99]

which has a poetic ring to it, will be briefed and argued next year before SCOTUS. From SCOTUSBlog (http://www.scotusblog.com/wp/new-detainee-case-granted/):


New detainee case granted
Tuesday, October 20th, 2009 10:05 am | Lyle Denniston

The Supreme Court, probably complicating President Obama’s plans to make new policy on detainees, agreed on Tuesday to rule on the power of federal judges to order prisoners released from Guantanamo Bay, Cuba. The specific issue in Kiyemba, et al., v. Obama, et al. (08-1234) is whether judges may require the release of Guantanamo prisoners to live in the U.S. itself, but the case has broader implications for all issues surrounding release or transfer of detainees.

The case — the first on a war-on-terrorism question to be heard by the Court since the new President took office — will require the Justices to explain further (and maybe try to reconcile) two rulings they had issued on the same day in June 2008: Boumediene v. Bush, establishing a constitutional right for Guantanamo detainees to challenge their continued imprisonment, and Munaf v . Geren, limiting habeas rights for individuals held by the U.S. military but facing criminal charges in another country. The Obama Administration, like the Bush Administration before it, has relied heavily upon the Munaf decision in arguing that federal judges do not have the authority to control the release or transfer of detainees. Once such a prisoner has had a chance to pursue a habeas claim, the government has contended, that is all that the Boumediene decision requires.

The strict holdings in the two cases mentioned were:

Boumediene v. Bush - the territorial jurisdiction required by the Constitution for habeas corpus petitions was extended to Gitmo. The petition was not decided on the merits, but remanded to the District Court for a merits hearing. SCOTUS divided in opinions on this case.

Munaf v . Geren - the nationality jurisdiction required by the Constitution for habeas corpus petitions of US citizens was confirmed in the case of two US citizens held in US custody in Iraq. The Supreme Court then went on to decide the merits itself (adversely to the relief sought by the detainees, which was not to be transferred to the Iraqis). That was a unanimous decision.

The two case were decided on different constitutional grounds.

[jmm99]

The Tarek Mehanna story, from the New York Times (http://www.nytimes.com/2009/10/22/us/22terror.html):


Mass. Man Arrested in Terrorism Case
By ABBY GOODNOUGH and LIZ ROBBINS
Published: October 21, 2009

BOSTON — A pharmacist living with his parents in the suburbs of Boston was arrested on Wednesday on federal terrorism charges. The authorities said he had conspired to attack civilians at a shopping mall, American soldiers abroad and two members of the executive branch of the federal government.

The man, Tarek Mehanna, 27, was charged with conspiracy to provide material support to terrorists. The conspiracy occurred from 2001 to 2008, the acting United States attorney, Michael K. Loucks, said at a news conference in Boston.

Mr. Loucks said Mr. Mehanna, an American citizen, was unsuccessful in acquiring weapons to carry out the attack, and was also rejected by terrorist groups abroad.

Mr. Mehanna was ordered held without bail by Magistrate Judge Leo T. Sorokin of the federal court here. His next court appearance, a detention and probable cause hearing, was scheduled for Oct. 30. ..... (more)

The Complaint and Affidavit (http://graphics8.nytimes.com/packages/pdf/national/20091021-terror-complaint.pdf) (34 pp.) recites a long series of events over the period 2001-2009, involving multiple parties. In organizational structure, the allegations are similar to Zazi - a relatively small extremist group, loosely linked to AQ, as opposed to being AQ "SOF".

The pleadings are interesting reading. The charge of giving false information was again the means of putting something of a hold on Mehanna.

------------------------------
In an unrelated case, a Toledo man was sentenced to 20 years, with 2 others to be sentenced in the near future. They were convicted earlier this year after a jury trial. Background story from AP (http://wire.antiwar.com/2009/10/20/man-in-ohio-terror-case-says-he-was-framed-2/):


Man in Ohio terror case says he was framed
Man convicted of plotting to train terrorists to kill US troops in Iraq says he was framed
JOHN SEEWER
AP News
Oct 20, 2009 18:22 EST

One of three men convicted of plotting to recruit and train terrorists to kill American soldiers in Iraq told a federal judge Tuesday that prosecutors twisted his words and wrongly painted him as a terrorist.

Mohammad Amawi said he was targeted because he spoke out against the war in Iraq.

"Yes, I said of lot of things," he said during his sentencing hearing in Ohio. "But when did I do something?"

Federal prosecutors have asked a judge to give Amawi a life sentence. He and two other men of Middle Eastern descent met in Toledo about five years ago and began plans to help insurgents in Iraq, prosecutors said.

U.S. District Judge James Carr will announce his sentence Wednesday. ...

20-year sentence update from Toledo NBC24 (http://www.toledoonthemove.com/news/story.aspx?id=365772).

[jmm99]

A sincere thank you to everyone who has visited this thread since it started. The thread has just gone over 25,000 views.

I hope it has and will continue to have value to those who visit here.

Thanks again

Mike

[Ken White]

the moving train...

[jmm99]

Another small group conspiracy, linked to AQ by middlemen, continues to build a pattern.

Department of Justice Press Release (http://chicago.fbi.gov/dojpressrel/pressrel09/cg102709.htm)


For Immediate Release
October 27, 2009 United States Attorney's Office
Northern District of Illinois
Contact: (312) 353-5300
Two Chicago Men Charged in Connection with Alleged Roles in Foreign Terror Plot That Focused on Targets in Denmark

CHICAGO—Two Chicago men have been arrested on federal charges for their alleged roles in conspiracies to provide material support and/or to commit terrorist acts against overseas targets, including facilities and employees of a Danish newspaper that published cartoons of the Prophet Mohammed in 2005, federal law enforcement officials announced today. There was no imminent danger in the Chicago area, officials said, adding that the charges are unrelated to recent terror plot arrests in Boston, New York, Colorado, Texas and central Illinois.

The defendants charged in separate criminal complaints unsealed today in U.S. District Court in Chicago are David Coleman Headley, 49, and Tahawwur Hussain Rana, 48, also known as Tahawar Rana, announced Patrick J. Fitzgerald, U.S. Attorney for the Northern District of Illinois, and Robert D. Grant, Special Agent-in-Charge of the Chicago Office of the FBI. The complaints remained under seal temporarily after the defendants’ arrests, with court approval, so as not to compromise further investigative activity.

Headley, a U.S. citizen who changed his name from Daood Gilani in 2006 and resides primarily in Chicago, was arrested on Oct. 3, 2009, by the Chicago FBI’s Joint Terrorism Task Force (JTTF) at O’Hare International Airport before boarding a flight to Philadelphia, intending to travel on to Pakistan. He was charged with one count of conspiracy to commit terrorist acts involving murder and maiming outside the United States and one count of conspiracy to provide material support to that overseas terrorism conspiracy.

Rana, a native of Pakistan and citizen of Canada who also primarily resides in Chicago, was arrested on Oct. 18, 2009, at his home by federal agents. Rana is the owner of several businesses, including First World Immigration Services, which has offices on Devon Avenue in Chicago, as well as in New York and Toronto. He was charged with one count of conspiracy to provide material support to a foreign terrorism conspiracy that involved Headley and at least three other specific individuals in Pakistan.

Both men have been held in federal custody since each was arrested. If convicted, Headley faces a maximum sentence of life imprisonment for conspiracy to murder or maim persons abroad, while Headley and Rana each face a maximum of 15 years in prison for conspiracy to provide material support to terrorism. .... (much more in press release and complaints)

An interesting aspect is First World Immigration Services, a convenient means to infiltrate and exfiltrate operators.

Rana Complaint and Affidavit (http://207.41.16.133/rfcViewFile/09cr849complaint.pdf) (now unsealed, 48 pp.)

Headley Complaint and Affidavit (http://media1.suntimes.com/multimedia/headley%20complaint.pdf_20091027_09_57_00_15.image Content) (now unsealed, 39 pp.)

[slapout9]

jmm99, don't worry about that stuff. Soon as we take care of A'stan it will all be over:rolleyes:

[jmm99]

From the Detroit News (http://detnews.com/article/20091028/METRO/910280436/Detroit-mosque-leader-killed-in-FBI-raids), some background:


Last Updated: October 28. 2009 10:42PM .Detroit mosque leader killed in FBI raids
Paul Egan / The Detroit News
Detroit -- The leader of a Detroit mosque who allegedly espoused violence and separatism was shot and killed Wednesday in an FBI gun battle at a Dearborn warehouse.

Luqman Ameen Abdullah, imam of the Masjid Al-Haqq mosque in Detroit, was being arrested on a raft of federal charges including conspiracy, receipt of stolen goods, and firearms offenses.

Charges were also filed against 11 of Abdullah's followers. Eight were in custody Wednesday night awaiting detention hearings today; three remained at large.

A federal complaint filed Wednesday identified Abdullah, 53, also known as Christopher Thomas, as "a highly placed leader of a nationwide radical fundamentalist Sunni group." His black Muslim group calls itself "Ummah," or the brotherhood, and wants to establish a separate state within the United States governed by Sharia law, Interim U.S. Attorney Terrence Berg and Andrew Arena, FBI special agent in charge in Detroit, said in a joint statement.

"He regularly preaches anti-government and anti-law enforcement rhetoric," an FBI agent wrote in an affidavit. "Abdullah and his followers have trained regularly in the use of firearms, and continue to train in martial arts and sword fighting."

The Ummah is headed nationally by Jamil Abdullah Al-Amin, formerly known as H. Rap Brown, who is serving a state sentence for the murder of two police officers in Georgia. .....

From Canadian Press (http://www.google.com/hostednews/canadianpress/article/ALeqM5gNOSVQrIum2fnrhtghfDFvy9vpLg), the Ontario connection:


FBI seeks 3 Canadian residents after radical imam killed in police shootout
By Colin Perkel (CP) – 32 minutes ago

TORONTO — Three men who apparently live in Canada, including the son of an imam killed in a shootout with police in Detroit, were being sought by the FBI on Thursday amid allegations they were involved with a radical Islamic group in the United States.

An FBI complaint, the result of a two-year investigation, alleges the men conspired to commit federal crimes of a relatively minor nature.

However, the underlying thread is that the group espoused violence and sought to establish a Sharia-law state within the United States.

Luqman Ameen Abdullah, imam of the Masjid Al-Haqq mosque in Detroit, was killed in a gunbattle Wednesday as police sought to arrest him at a warehouse in nearby Dearborn, Mich.

Seven men, alleged to be his followers, were arrested.

The three with links to Canada were still being sought, police said. .....

The DoJ Press Release (http://detroit.fbi.gov/dojpressrel/pressrel09/de102809.htm) spells out the charges:


Department of Justice Press Release

For Immediate Release
October 28, 2009 United States Attorney's Office
Eastern District of Michigan
Contact: (313) 226-9100
Eleven Members/Associates of Ummah Charged with Federal Violations
One Subject Fatally Shot During Arrest

United States Attorney Terrence Berg, Eastern District of Michigan, Andrew G. Arena, Special Agent in Charge (SAC), Federal Bureau of Investigation, (FBI), Detroit, Michigan, and Police Chief Warren Evans, Detroit Police Department (DPD), Detroit, Michigan announced a federal complaint was unsealed today charging Luqman Ameen Abdullah, a.k.a.Christopher Thomas, and 10 others with conspiracy to commit several federal crimes, including theft from interstate shipments, mail fraud to obtain the proceeds of arson, illegal possession and sale of firearms, and tampering with motor vehicle identification numbers. The eleven defendants are members of a group that is alleged to have engaged in violent activity over a period of many years, and known to be armed.

In light of the information that the charged individuals were believed to be armed and dangerous, special safeguards were employed by law enforcement to secure the arrests without confrontation. During the arrests today, the suspects were ordered to surrender. At one location, four suspects surrendered and were arrested without incident. Luqman Ameen Abdullah did not surrender and fired his weapon. An exchange of gun fire followed and Abdullah was killed. An FBI canine was also killed during the exchange.

Abdullah was the leader of part of a group which calls themselves Ummah (“the brotherhood”), a group of mostly African-American converts to Islam, which seeks to establish a separate Sharia-law governed state within the United States. The Ummah is ruled by Jamil Abdullah Al-Amin, formerly known as H. Rapp Brown, who is serving a state sentence in USP Florence, CO, ADMAX, for the murder of two police officers in Georgia. As detailed in the affidavit in support of the criminal complaint that was unsealed today, Abdullah has espoused the use of violence against law enforcement, and has trained members of his group in use of firearms and martial arts in anticipation of some type of action against the government. Abdullah and other members of this group were known to carry firearms and other weapons.

The 11 individuals charged include:

Luqman Abdullah (aka Christopher Thomas), age 53, of Detroit, Michigan. Abdullah is charged with:

18 U.S.C. 371 Conspiracy to Commit Federal Crimes,
18 U.S.C. Sale or Receipt of Stolen Goods Transported in Interstate Commerce,
18 U.S.C. 922(d) Providing Firearms or Ammunition to a Person Known to be a Convicted Felon,
18 U.S.C. 931 Possession of Body Armor by a Person Convicted of a Violent Felony,
18 U.S.C. 551 altering or Removing Motor Vehicle Identification Numbers.

Mohammad Abdul Salaam (aka Gregory Stone), age 45, of Detroit, Michigan. Salaam is charged with:

18 U.S.C. 371 Conspiracy to Commit Federal Crimes,
18 U.S.C. Sale or Receipt of Stolen Goods Transported in Interstate Commerce.

Abdullah Beard (aka Detric Lamont Driver), age 37, of Detroit, Michigan. Beard is charged with:

18 U.S.C. 371 Conspiracy to Commit Federal Crimes.

Abdul Saboor (aka Dwayne Edward Davis), age 37, of Detroit, Michigan. Saboor is charged with:

18 U.S.C. 371 Conspiracy to Commit Federal Crimes.

Mujahid Carswell (aka Mujahid Abdullah), age 30, of Detroit, Michigan and Ontario, Canada. Carswell is charged with:

18 U.S.C. 371 Conspiracy to Commit Federal Crimes.

Adam Ibraheem, age 38, of Detroit, Michigan. Ibraheem is charged with:

18 U.S.C. 371 Conspiracy to Commit Federal Crimes.

Gary Laverne Porter (aka Mujahid LNU), age 59 of Detroit, Michigan. Porter is charged with:

18 U.S.C. 371 Conspiracy to Commit Federal Crimes,
18 U.S.C. 922(g) Possession of Firearms or Ammunition by a Convicted Felon.

Ali Abdul Raqib, age 57, of Detroit, Michigan. Raqib is charged with:

18 U.S.C. 371 Conspiracy to Commit Federal Crimes.

Mohammad Alsahi (aka Mohammad Palestine), age 33, of Ontario, Canada. Alsahi is charged with:

18 U.S.C. 371 Conspiracy to Commit Federal Crimes.

Yassir Ali Khan, age 30, of Ontario, Canada and Warren, Michigan. Khan is charged with:

18 U.S.C. 371 Conspiracy to Commit Federal Crimes.

Mohammad Abdul Bassir (aka Frankin D. Roosevelt Williams, age 50 , of Ojibway Correctional Facility. Bassir is charged with:

18 U.S.C. 371 Conspiracy to Commit Federal Crimes,
18 U.S.C. Sale or Receipt of Stolen Goods Transported in Interstate Commerce,
18 U.S.C. 1341 Mail Fraud
18 U.S.C. 922(d) Providing Firearms or Ammunition to a Person Known to be a Convicted Felon,
18 U.S.C. 922(g) Possession of Firearms or Ammunition by a Convicted Felon.
18 U.S.C. 551 Altering or Removing Motor Vehicle Identification Numbers.

H. Rap Brown brings back memories of the 60s and 70s.

[davidbfpo]

I thought the Milan, Italy case where the CIA with local help illegally kidnapped a local Muslim cleric had appeared before; NT on a simple search with just Milan, so added here :http://www.latimes.com/news/nationworld/world/la-fg-italy-verdict5-2009nov05,0,2106586.story?track=rss

The US defendants needless to say did not attend the trial and have been found guilty in absentia.

There are four stories in today's news round-up; looked at that too late.

davidbfpo

[jmm99]

and they are sure to appear as this gains more media coverage - and as some of the 23 speak out (directly or covertly) - e.g., deSousa at ABC (http://abcnews.go.com/Blotter/exclusive-convicted-cia-spy-broke-law/story?id=8995107).

Rough rules of thumb:

Extraordinary Rendition = kidnapping

Rendition = co-operation between law enforcement agencies.

I suspect that Bob Baer was really talking about the latter (not really the former) when in the ABC article he said:


"I did these same things under the Reagan administration," Baer told ABCNews.com "When we did a rendition, we did it in international waters. The Bush administration threw all caution to the wind."

or crossed the line which can be a bit blurred.

[davidbfpo]

JMM,

I know the lack of tradecraft by the CIA has appeared in the public domain, easily identified by the investigators and other aspects. Cannot recall which websites now, if Bourbon comes along I tink he'll know.

Standby.

davidbfpo

[davidbfpo]

The head prosecutor in England & Wales is the Director of Public Prosecutions (DPP) and the last postholder was interviewed by BBC Radio recently, he made some considered points: http://news.bbc.co.uk/1/hi/programmes/law_in_action/8339958.stm - which has a podcast link.

One was:
a need to be seen to be doing something fuelled a lot of the government's criminal and terror legislation during his time as DPP.

davidbfpo

[jmm99]

The transfer of KSM and 4 other 9/11 conspirators for indictment and trial in the Southern District of New York will generate more heat than enlightenment as the various 24/7 news cycles bite into it from their varied perspectives. The official views are in the AG's Statement (http://www.scotusblog.com/wp/wp-content/uploads/2009/11/Holder-statement-11.13.092.pdf) and DoJ Press Release (http://www.scotusblog.com/wp/wp-content/uploads/2009/11/DOJ-press-release-11.132.pdf). The detainees making up the "KSM Fiver" are Khalid Sheikh Mohammed, Walid Muhammed Salih Mubarak Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi.

Buried in the statement and release, summarized by SCOTUS (http://www.scotusblog.com/wp/civilian-trials-for-911-accused/), is the continuation of military commision trials for five detainees (not expressly named):


Civilian trials for 9/11 accused
Military commissions also revived
Friday, November 13th, 2009 11:49 am | Lyle Denniston
.....
Besides deciding on the civilian court route for those who allegedly took part in the 9/11 attacks, Holder said he and Defense Secretary Robert Gates had decided to revive the stalled and often troubled military commission process, to try five other Guantanamo prisoners. Among them, Holder said, is “the detainee accused of orchestrating the October 2000 attack on the USS Cole, which killed 17 U.S. sailors and injured dozens of others, and a detainee who is accused of participating in an al-Qaeda plot to blow up oil tankers in the Straits of Hormuz.” Congress recently revised the military commission process, which was originally set up in 2006 after the Supreme Court had nullified a commission system crafted by the Executive Branch during the George W. Bush Administration.

What logic lies behind this decision to use two different paths (processes) is not really explained.

1. Incidents inside the US are to be tried under domestic criminal law; and incidents outside the US are to be tried before military commissions ? Perhaps, although the embassy bombimg cases were and are being pursued in Federal courts.

2. Incidents involving civilian targets are to be tried under domestic criminal law; and incidents involving military targets are to be tried before military commissions ? Perhaps, although the 9/11 attack on the Pentagon certainly involved a military target.

A larger question is under which laws and rules are we to proceed in dealing with transnationazl violent non-state actors (TVNSAs). That question goes beyond where we try specific individuals after they have been captured. If, for example, imposition of the death penalty on KSM requires an Article III trial under the Federal Rules of Criminal Procedure, what is the legal jusitification for proceedng against his bosses and equals who remain uncaptured by various direct action tactics (targeted killings by drone or otherwise) ?

My answer is that direct action tactics are justifed by the Laws of War; an answer very much disputed by the Eminent Jurists Report, whose views are supported by many nations (including some ISAF partners).

And so it goes ....

Mike

[davidbfpo]

Slim biographies of the five going for a civil criminal trial and the five stuck with military commissions:
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/6566013/Profiles-10-Guantanamo-Bay-detainees-on-trial-in-US.html

davidbfpo

[jmm99]

Something like picking sides in sandlot baseball, AG Holder took the hot potatoes and SecDef Gates got the small potatoes. In any event, there are a number of sources for background on these detainees.

The New York Times has its Guantanamo Docket (http://projects.nytimes.com/guantanamo), which consists of scanned open-source records concerning the detainees. Note the search function at the upper right.

Wiki has pages on individual detainees - e.g., Noor Uthman Muhammed (http://en.wikipedia.org/wiki/Noor_Uthman_Muhammaed), the last of the 4 definitely committed to military commission trial (M. Kaman's destination is still not firmly decided per the Telegraph article), with decent summaries of evidence and quite a few links.

I also have to mention Andy Worthington (http://www.andyworthington.co.uk/), who strongly believes in his position on the Gitmo detainees and has considerable content (both factual and editorial) on all of them. His latest take on the 5-5 dispositions is here in text and video (http://www.andyworthington.co.uk/2009/11/13/on-democracy-now-andy-worthington-discusses-the-forthcoming-911-trials-and-outside-the-law-stories-from-guantanamo-video/). One should realize in reading Andy's screeds that he not only believes in his position, he also takes as gospel all allegations that support his position - some things supported by the record, some not.

And, of course, Google will return multi-hits for each of these detainees.

Best to all

Mike

[Sergeant T]

JMM99,

Got a few questions about the whole KSM trial idea. First, what's to prohibit his attorney's from invoking a Sixth Amendment challenge? Second, there are details about his pursuit, capture, and detention that are surely still classified. If his attorneys request this information in discovery and it is denied haven't we opened the door to mistrial? Third, couldn't any defense attorney worth his salary reasonably assert that KSM cannot get a fair trail in New York, especially given this kind of press (http://justoneminute.typepad.com/.a/6a00d83451b2aa69e2012875a1b8e8970c-pi)? There are a LOT more questions that come to mind but these are the top of the head ones I haven't seen anyone else address yet. Aside from the legal questions I would fear that defense attorneys would put Abu Zubaydah on the stand. This feels like a really, really bad idea.

[jmm99]

that could be raised - so, let's answer them as they are presented in the proceedings - motion by f'ng motion.

Here is my take. Most questions would have come up if KSM were tried before a military commission, especially under the revised MCA statute. The huge difference is that Foley Square (US Courts in NY) is far more accessible to the media than is Gitmo. It is also far more accessible to demonstrators, etc. So, let the Games begin as they surely will.

We'll see how this all develops, but this phase of "War Crimes" is now very much the Obama administration's child - although one can see where it could turn into a trial of Pres. Bush, V.P. Cheney, et al.

Regards

Mike

[rjorr]

The online blog "Opinio Juris" has a good post today regarding the decision to try KSM and some others in federal court. It does, in my mind, a good job of refuting the notion that the criminal process is somehow a threat to US security. Others have addressed the subject in more detail, but this author does about a good a job as I've seen in a short piece.

http://opiniojuris.org/2009/11/17/does-anyone-deserve-constitutional-rights/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+opiniojurisfeed+%28Opinio+Jur is%29

[jmm99]

by Crocker and Yoo, I concluded both were a waste of my time, other than the comment by Howard Gilbert (http://opiniojuris.org/2009/11/17/does-anyone-deserve-constitutional-rights/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+opiniojurisfeed+%28Opinio+Jur is%29) (4th response).

That at least shows situational awareness of the different rules applicable based on a detainee's status; and the parameters of nationality and territorial jurisdiction.

So, here is the comment:


A person has or does not have Constitutional rights based on his legal status. He does not lose these rights based on the type or severity of the crime of which he is accused. He cannot be stripped of these rights by the type of court in which he is tried. Someone who lacks constitutional rights will still get normal judicial due process in a trial and may call witnesses and be represented by a lawyer of his choice.

While sloppy thinking may be endemic to the debate, one hopes the judge will sort things out. “Terrorists” have no more or fewer rights than bank robbers, but a non-citizen captured and held overseas and then tried for some sort of extraterritorial murder is not entitled to certain procedural rules (with regard to things that happened in foreign countries) that would apply to a resident accused of a murder in the US.

One may believe that civilian courts would be more likely than military courts to make the mistake of attributing Constitutional rights to someone who is not entitled to them. This is a valid criticism of some judges, but it is not a problem with the court system. On the other hand, military judges know they are dealing with enemy soldiers captured outside the US and are unlikely to make certain mistakes.

KSM is entitled to all the protections of due process, but he is not a citizen or legal resident and is not entitled to constitutional protections. For example, when papers and computer disks were seized by the Pakistani police during his arrest there was no US search warrant because no US court had jurisdiction over Pakistan. Those papers and files cannot be excluded, because the Fourth Amendment did not apply to his capture.

Although statements made due to torture can be excluded, there is no requirement to read Miranda rights to someone who, at the time of capture, is not protected by the Fifth and Sixth Amendments. Judges should be smart enough to not exclude, for example, un-coerced statements made by enemy soldiers after capture, even though the same statements might be excluded if made by un-Mirandized citizens after a criminal arrest.

There are judges who are smart enough to apply the law correctly, and some who are not. Unfortunately, the system does not have a procedure to guarantee that a trial like this is assigned to the most able judge.

QED.

----------------
rjorr: An introduction with some background would be helpful - perhaps, here (http://council.smallwarsjournal.com/showthread.php?p=87218#post87218).

Regards

Mike

[Sergeant T]

Two thoughts come to mind in reading through Gilbert's comment. First, at what point in his detention do the 5th and 6th Amendment kick in? I'm willing to bet his lawyers will spend some quality time with this issue. Second, Gilbert says the 4th Amendment doesn't apply to items seized at his capture. While that's true it doesn't mean they're going to be admissible in court either. At least from what I recall of my ConLaw classes many years ago. I'd love to be wrong about that.

[jmm99]

The reach of the Constitution hinges on two primary factors: (1) nationality jurisdiction (e.g., US citizens and usually legal resident aliens); and (2) territorial jurisdiction (i.e., what geography is "incorporated" into the US).

Here are some study aids:

The Insular Cases - Wiki (http://en.wikipedia.org/wiki/Insular_Cases). In effect, the Supreme Court held that full constitutional rights did not automatically extend to all areas under American control.

The Insular Cases - Dan MacMeekin (http://www.macmeekin.com/Library/Insular%20Cases.htm). Very nice summary discussion of each case, with links to the Find Law case reports.

United States v. Verdugo-Urquidez - Wiki (http://en.wikipedia.org/wiki/United_States_v._Verdugo-Urquidez). To date, the authority of this case seems unimpaired. The controversy, if any, has been with respect to "relaxation" of 4th, 5th and 6th Amendment rights within CONUS because of GWOT.

That domestic focus seems part of an ongoing effort by John Yoo et al to prove that their domestic-focused memos re: GWOT were correct, as in this piece from Volokh, A Response to Delahunty’s “The Fourth Amendment Goes to War” (http://volokh.com/2009/10/26/a-response-to-delahuntys-the-fourth-amendment-goes-to-war/) (26 Oct 2009).

There we also find a comment by Howard Gilbert (the guy gets around):


Soldiers are not trained in police procedures or law. When deployed in a military operation, they do not obtain or even think about warrants.

It is the responsibility of the national command to not deploy soldiers in a police operation. The military is therefore not exempt from the Fourth Amendment, but it is a matter of Monday morning quarterbacking. If a judge finds months later that the circumstances were not a proper military operation and a warrant was required, then the person whose rights were violated has a cause of action against the US.

In that sense, you have to reverse the logic. It is not that warrants are not required for a military operation, but rather than when warrants are required, it is not a legitimate military operation and should have been conducted by the police.

The most likely scenario in the current conflict is not Gettysburg, but Mumbai. A commando raid by an enemy unit arriving in fast rubber boats launched from a ship off the East Coast. Although local police might respond, it would be legitimate to also use military forces. Once committed to such a battle, soldiers can enter any building, detain people, and use such force as is necessary to accomplish the mission. If they happen to stumble into your basement filled with pot plants, that is probably not admissible as evidence in any criminal case.

Now you may say there are exigent circumstances. That provides a rationale in current legal terms for the activity. However, you are trying to apply legal language to a situation where that law does not apply. The military, once legitimately deployed in defense of the US against an external invader, do not require warrants ever, their actions are inherently reasonable, and the Fourth Amendment is silent about such activity. In the history of the US, no military unit has ever obtained a warrant for anything. A warrant is authority from the Article III branch of government to do something. The Article III branch has no authority that is required or even helpful to military operations, which operate solely under Article II authority.

There is no case law because previous generations have understood this principle. Since the Civil War, one might look for incidents in the New Mexico raids by Poncho Villa, or the martial law in Hawaii after Pearl Harbor. However, there are not a lot of examples of actual attacks by a foreign force inside the US, so you have to use some logic to guess the outcome when an issue has never been litigated.

Generally, this works for me; but specific facts must be provided before engaging in reasoned analysis. In absence of specific facts, the discussion degenerates to "going to perdition in a handbasket", "sliding down the slippery slope" and all the rest of the catch phrases used in current political spin.

In summary, the "Insular Cases" answer many 4th, 5th and 6th Amendment issues, which will not differ substantially whether the case is tried in a Federal court or before a military commission.

There is a difference between judges. For example, in the Gitmo habeas cases, the judges who were more knowledgeable about intelligence matters and AQ (e.g., from having served on the FISA court), in my opinion, authored more thoughtful and relevant opinions. And that was so, whether they held for or against the detainees.

Unfortunately, many who attempt to discourse on these issues have not really studied transnational violent non-state actors (e.g., AQ) in terms of their strategies, operations and tactics. These TVNSAs are not equivalent to your average domestic bank robber or murderer.

Hint: those legal discoursers should be required to participate across the board in SWC forums before being allowed to speak. :D

[davidbfpo]

Nothing results in more disclosures of government intelligence than civilian trials,’’ writes former federal prosecutor Andrew C. McCarthy. “They are a banquet of information, not just at the discovery stage but in the trial process itself, where witnesses - intelligence sources - must expose themselves and their secrets.

McCarthy should know. He was the prosecutor of Omar Abdel Rahman, the “blind sheikh’’ put on trial after the 1993 World Trade Center bombing. Though Rahman was eventually convicted and is serving a life sentence, the government was required to supply defense lawyers with sensitive intelligence details, including a list of 200 potential co-conspirators - people the government knew about, but didn’t have enough evidence to charge. Within days, those names had found their way to Sudan and were in the possession of bin Laden, an intelligence windfall that immeasurably aided his jihad against the United States.

From:http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2009/11/18/in_ny_trial_a_treasure_trove_for_terror/?utm_source=newsletter&utm_medium=email&utm_campaign=rcp-today-newsletter

[davidbfpo]

MI5 and MI6 have been given permission to hold hearings behind closed doors into their alleged complicity in the treatment of seven former detainees in Guantanamo Bay.

A High Court judge ruled there was no reason in law why closed hearings should not be used in the damages case, even though it had never been used in such a case before.

The judge said the "closed material" procedure entitled the defendants not to disclose matters to the claimants or their lawyers where disclosure would be contrary to the interests of national security, the international relations of the UK or in any other circumstances where it was likely to harm the public interest.

From:http://www.telegraph.co.uk/news/6600344/MI5-and-MI6-given-go-ahead-for-secret-hearings-into-abuse.html

[jmm99]

I'm never sure how to handle the suggestions of fellow lawyer and McCarthy, Andy. His suggestion of a civilian National Security Court to handle "war crimes" cases (similar to the FISA courts with TVNSA-savvy judges) seems to me a good one, even though there is no possibility that it will be adopted by the present administration and Congress.

However, as to his short article, Holder's Hidden Agenda, cont'd (http://corner.nationalreview.com/post/?q=NTVkN2ZhMTU0NzcwYWVmYTNmODI1ZTJjMTA1ZDFiODQ), in Andy's Corner at NRO (13 Nov 2009), with this substantive conclusion:


Nothing results in more disclosures of government intelligence than civilian trials. They are a banquet of information, not just at the discovery stage but in the trial process itself, where witnesses — intelligence sources — must expose themselves and their secrets.

I have to say: Not necessarily so. The DC habeas proceedings are civilian, where classified evidence has been protected - although some judges there have not been adept at that (e.g., writing public opinions that have to be so redacted as to become unintelligible). Of course, the sealed full opinions (and all the classified evidence) are filed and available for appellate review. The old intel pros among the judges write two opinions, one a shortened non-classified version; the other a full classified version. In short, our knowledge of TVNSAs and procedures to protect classified evidence have advanced since the Rahman trial.

That having been said, Andy makes a valid point with this, subject to the caveat above:


So: We are now going to have a trial that never had to happen for defendants who have no defense. And when defendants have no defense for their own actions, there is only one thing for their lawyers to do: put the government on trial in hopes of getting the jury (and the media) spun up over government errors, abuses and incompetence. That is what is going to happen in the trial of KSM et al. It will be a soapbox for al-Qaeda's case against America. Since that will be their "defense," the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and — depending on what judge catches the case — they are likely to be given a lot of it. The administration will be able to claim that the judge, not the administration, is responsible for the exposure of our defense secrets. And the circus will be played out for all to see — in the middle of the war. It will provide endless fodder for the transnational Left to press its case that actions taken in America's defense are violations of international law that must be addressed by foreign courts. And the intelligence bounty will make our enemies more efficient at killing us.

So, a lot depends on the judge trying the case. If the judge is protective of classified evidence and if the DoJ aggressively asserts its rights as to classified evidence, that issue will not be a problem. However, the huge media coverage, and the "evidence" already open-source as to extraordinary renditions, enhanced interrogations and secret prisons, would still result in the media circus that Andy describes. As I said above: "So, let the Games begin as they surely will."

Keeping these cases within reasonable bounds depends not only on the judge keeping firm control over the case (a "Judge Ito" would be a nightmare); but also DoJ having a firm resolve to limit the charges and evidence. In that context, Andy suggests this (his lede paragraph):


This summer, I theorized (http://article.nationalreview.com/?q=ZGMyYTQ1ZTM5YTQ5NjJjNzJmNGUxZDIyOTFjYzIyM2Y=) that Attorney General Eric Holder — and his boss — had a hidden agenda in ordering a re-investigation of the CIA for six-year-old alleged interrogation excesses that had already been scrutinized by non-partisan DOJ prosecutors who had found no basis for prosecution. The continuing investigations of Bush-era counterterrorism policies (i.e., the policies that kept us safe from more domestic terror attacks), coupled with the Holder Justice Department's obsession to disclose classified national-defense information from that period, enable Holder to give the hard Left the "reckoning" that he and Obama promised during the 2008 campaign. It would be too politically explosive for Obama/Holder to do the dirty work of charging Bush administration officials; but as new revelations from investigations and declassifications are churned out, Leftist lawyers use them to urge European and international tribunals to bring "torture" and "war crimes" indictments. Thus, administration cooperation gives Obama's base the reckoning it demands but Obama gets to deny responsibility for any actual prosecutions.

Would a US President and AG do something like this, which would stand a good probability of getting good people killed, and which would stand a good chance of ripping this country apart ? I'd prefer to think not - and I'll leave it at that.

The old adage up here is not to walk across the ice covering the Misery River cuz there's a lot of thin spots you can't see. Good way to get yourself drowned (almost happened to my dad, who knew that river better than anyone). This unnecessary change in venue seems to carry the same risk, even positing the very best motives on the part of the Obama administration.

PS: the UK trial judge's decision is interesting and timely. We'll have to see how it holds up on appeal. Thank you, David, for both links.

[jmm99]

From the New York Times (http://www.nytimes.com/2009/11/24/us/24terror.html?_r=2&hp):


Charges Detail Road to Terror for 20 in U.S.
By ANDREA ELLIOTT
Published: November 23, 2009

Federal officials on Monday unsealed terrorism-related charges against men they say were key actors in a recruitment effort that led roughly 20 young Americans to join a violent insurgent group in Somalia with ties to Al Qaeda.

With eight new suspects charged Monday, the authorities have implicated 14 people in the case, one of the most extensive domestic terrorism investigations since the Sept. 11 attacks. Some of them have been arrested; others are at large, including several believed to be still fighting with the Somali group, Al Shabab.

The case represents the largest group of American citizens suspected of joining an extremist movement affiliated with Al Qaeda, senior officials said. Many of the recruits had come to America as young refugees fleeing a brutal civil war, only to settle in a gang-ridden enclave of Minneapolis.

The men named on Monday face federal charges including perjury, providing material support to a terrorist organization and conspiring to kill, maim, kidnap or injure people outside the United States.

Law enforcement officials are concerned that the recruits, who hold American passports, could be commissioned to return to the United States to carry out attacks here, though so far there is no evidence of such plots. .....

Here are the key court records underlying the NYT story:

Mahamud Said Omar Indictment (http://graphics8.nytimes.com/packages/pdf/us/20091124_TERROR_DOCS/msomar.pdf) (pdf)

Ahmed Omar, et al Indictment (http://graphics8.nytimes.com/packages/pdf/us/20091124_TERROR_DOCS/aomar.pdf) (pdf)

Faarax and Isse Complaint (http://graphics8.nytimes.com/packages/pdf/us/20091124_TERROR_DOCS/faarax.pdf) (pdf)

A prior Minneapolis case has been reported here (5-21-09), Mohammed Warsame, a Canadian-Somali, pleaded guilty in Federal District Court (http://council.smallwarsjournal.com/showpost.php?p=72405&postcount=290).

[davidbfpo]

From The Guardian:http://www.guardian.co.uk/uk/2009/nov/22/lotfi-raissi-secret-files-evidence and a slightly longer report
:http://www.guardian.co.uk/uk/2009/nov/22/lotfi-raissi-algerian-pilot-case


British prosecutors failed to disclose crucial evidence to the courts in the aftermath of the September 11 terrorist attacks in a case that resulted in an innocent pilot being jailed for five months, previously unseen documents reveal.

[Bill Moore]

I need help, my wife jumped in on my butt last night about how stupid it is to trial the 9/11 master mind and associates in NYC in a civilian court, then drilled me with several questions I couldn't answer.

1. Why haven't we trialed these criminals already in a military tribunal?

2. Do foreigners who have commited crimes in the U.S. (plotting the mass murder of our citizens) have any rights by our laws? What are they?

3. What is the advantage (if any) of trialing these self-admitted criminals in the civilian system over the military system?

4. Assuming these are prisoners of war, what is their status after the war ends? Was 9/11 a crime or a war crime?

I want to avoid the political left versus right issues to the extent possible unless they're relevant and stick to the law and the interpretation of the law to the extent possible. Look forward to your comments.

[davidbfpo]

I need help, my wife jumped in on my butt last night about how stupid it is to trial the 9/11 master mind and associates in NYC in a civilian court, then drilled me with several questions I couldn't answer.

Bill,

I am sure JMM will add his far more professional lawyers opinion, with more facts than this "across the pond" observer.


1. Why haven't we trialed these criminals already in a military tribunal?

IIRC the Bush admin intended to use military tribunals and the Obama admin changed the policy. Military tribunals are seen by outsiders as ineffective, notably in legitimacy, plus access to a fair trial and a mass of procedural issues.


2. Do foreigners who have commited crimes in the U.S. (plotting the mass murder of our citizens) have any rights by our laws? What are they?

I doubt if US criminal law, even for mass murder, distinguishes between a US citizen and a non-US citizen. Equality before the law surely?


3. What is the advantage (if any) of trialing these self-admitted criminals in the civilian system over the military system?

Legitimacy outside the USA, not sure about within the USA. I'm not sure if they are 'self-admitted criminals', note KSM was waterboarded many, many times and as discussed here any of that material maybe excluded if the prosecution introduces it. A significant marker that the GWOT has ended, with the use of the civilian criminal courts.


4. Assuming these are prisoners of war, what is their status after the war ends? Was 9/11 a crime or a war crime?

I'm not sure if they are POW, IIRC the USA has not given them that status. If the war ends they remain POW till released; look at the various lengths of time German WW2 POW served and more recently the Pakistani POW after the 1971 war over Bangladesh. 9/11 clearly was a crime.

Bill's caveat
I want to avoid the political left versus right issues to the extent possible unless they're relevant and stick to the law and the interpretation of the law to the extent possible. Look forward to your comments.

[davidbfpo]

A bizarre story. Met Police stop Lord West, the ex-RN Admiral and now Minister for Security, in Whitehall-Westmnster; oh yes he is white and grey haired so fits the "profile":http://www.telegraph.co.uk/news/uknews/6663529/Security-minister-Lord-West-stopped-and-searched-in-profiling-row.html

Has this happened to any members of Congress or the Executive?

[Bill Moore]

http://www.michigandaily.com/content/politicians-subjected-airport-security?page=0,0

This one is old, but it has happened since. I personally think it is the new normal and while people have a right to get upset, the reality is that security personnel have to profile when they're checking hundreds of people a day.

[jmm99]

to the questions from Bill's butt-jumping spouse re: the 9/11 KSM Five (love it :D ). The last question my wife raised about AQ (some years ago now) was "why haven't we killed them yet ?" (by direct actions).

Anyway, to the "law" (run a "KSM" search of this thread and you will find a number of related posts):


1. Why haven't we tried these criminals already in a military tribunal?

The MCA trials were held up by the various court decisions and amendments to the MCA, which roughly takes us through 2006. The DoD screwed around a bit in 2007 and early 2008 getting Gitmo in shape for the trials. By fall 2008, the KSM Five were into pre-trial hearings. KSM took an active role as his own counsel (not a US lawyer, but he has a US engineering degree), KSM: "We are your enemy"..... (http://council.smallwarsjournal.com/showpost.php?p=57495&postcount=94), moving to disqualify the military judge (Ralph Kohlmann, COL, USMC, who retired shortly after, Two Gitmo Updates - Stop and Start (http://council.smallwarsjournal.com/showpost.php?p=60462&postcount=141)). COL Kohlmann's planned retirement did not throw a monkey-wrench in the cases.

In Dec 2008, KSM himself came up with the idea of pleading guilty, KSM and 4 others to plead guilty (http://council.smallwarsjournal.com/showpost.php?p=61801&postcount=150). That plan was held up by two issues initially (mental capacity of two defendants, and the legal question of whether the death penalty could be imposed under the MCA pursuant to a guilty plea). Those weren't resolved because the Obama administration stayed the MCA trials (not without some reaction from the military judges). In March 2009 (despite the Obama stay, or maybe because of it), the KSM Five in effect admitted guilt for 9/11, KSM's Islamic Response (http://council.smallwarsjournal.com/showpost.php?p=67972&postcount=215). That document, BTW, is a pretty good summary of the AQ Laws of War and presents the argument that the defendants are AQ combatants (cf., Fort Hood ?).


2. Do foreigners who have commited crimes in the U.S. (plotting the mass murder of our citizens) have any rights by our laws? What are they?

Yes.

First they have their rights as Common Article 3 detainees if they are captured or have surrended. That is a separate question from criminal trials whether before a military or civilian court. Many people confuse GC detention and criminal charges, including both presidents Bush II and Obama. They both should have read the FMs and other doctrinal works published by their military subordinates before pontificating.

Anyway, the constitutional rights depend on How far does the Constitution reach ? (http://council.smallwarsjournal.com/showpost.php?p=87242&postcount=424); and statutory rights also differ to some extent under the MCA and the US Code. In theory, the procedural rights should not differ that much (covered to some extent in the last couple of pages of this thread); but a lot depends on the judge, Perhaps, Andy, perhaps ... (http://council.smallwarsjournal.com/showpost.php?p=87257&postcount=427)


3. What is the advantage (if any) of trying these self-admitted criminals in the civilian system over the military system?

None if I were a prosecutor. See also, Perhaps, Andy, perhaps ... (http://council.smallwarsjournal.com/showpost.php?p=87257&postcount=427); and draw your own conclusions.


4. Assuming these are prisoners of war, what is their status after the war ends? Was 9/11 a crime or a war crime?

They are not EPW, but Common Article 3 detainees ("irregular combatants", pure and simple). That status should not be affected by the trial result; but, after Hamdan served his sentence imposed by the military jury, he was released. The idea has been floated that, by pursuing criminal charges, the continued detention is waived. That is wrong based on the result in Noriega (http://en.wikipedia.org/wiki/Manuel_Noriega), where both GC detention and criminal confinement were held concurrent, until both ran their course.


9/11 a crime or war crime ?

Obviously, they will be tried under the Terrorism Act (which is not really a "war crimes" act, although it comes close). Since "irregular combatants" are not accorded combatant immunity under the traditional laws of war, they (even if considered Soldiers of Allah, as they claim) could also be charged under both Federal and state laws (regular old murder, etc.).

Since all of the targets could be claimed as strategic targets (I suppose you could argue lack of proportionality as to the Towers, thus making them something of a "war crime" - do we want to go there ?), the unconventional use of airliners as cruise missiles in and of itself would not be a "war crime". But, the taking hostage of the crews and passengers and their eventual deaths certainly were "war crimes".

We have to be a bit careful here in defining "war crimes", lest we make "war crimes" out of some of our own unconventional warfare operations - we have employed and will employ irregular combatants. Consider that.

Don't know if this will help. There are many complex issues here, which are not going to be made easier by the Foley Square trials.

I'd also add that if GWOT has ended with respect to AQ-Taliban (since the AUMF still continues, that is not legally correct); but if, then use of drones and other direct actions involving targeted killings are of questionable legality. You'd have to ask AG Holder what he thinks about that - and about the continued vitality of the AUMF, etc. I'd like to hear the answers and whether our special operators will have their backs covered in the future. End mini rant.

Regards

Mike

[jmm99]

from David
Has this happened to any members of Congress or the Executive?

Yes; but I don't have the links or persons off the top of my noodle; but Bill got them from the 2002 article in the Michigan Daily, "Edited and managed by students at the University of Michigan since 1890", including Tom Hayden (http://en.wikipedia.org/wiki/Tom_Hayden) as onetime editor. The Daily offices and the SDS cubicle were not that far removed (IIRC - SDS was in one corner and YAF, Young Americans for Freedom, where I could sometimes be found, was in another corner).

[Bill Moore]

jmm99 thanks for the detailed feedback, I opened all the links and will begin my study for the Bar Exam :D.


The last question my wife raised about AQ (some years ago now) was "why haven't we killed them yet ?" (by direct actions).

I get this question almost daily accompanied with comments about how we're not very good, etc.


Since all of the targets could be claimed as strategic targets (I suppose you could argue lack of proportionality as to the Towers, thus making them something of a "war crime" - do we want to go there ?), the unconventional use of airliners as cruise missiles in and of itself would not be a "war crime". But, the taking hostage of the crews and passengers and their eventual deaths certainly were "war crimes".

We have to be a bit careful here in defining "war crimes", lest we make "war crimes" out of some of our own unconventional warfare operations - we have employed and will employ irregular combatants. Consider that.

Bravo! If we take this article 3 stuff too far, you're going to put some of our important capabilities in the museum, which in turn will mean more young Americans die a result of it.


I'd also add that if GWOT has ended with respect to AQ-Taliban (since the AUMF still continues, that is not legally correct); but if, then use of drones and other direct actions involving targeted killings are of questionable legality. You'd have to ask AG Holder what he thinks about that - and about the continued vitality of the AUMF, etc. I'd like to hear the answers and whether our special operators will have their backs covered in the future. End mini rant.

Don't know, but I'm very much concerned about the decisions being made now.


including Tom Hayden as onetime editor.

If I knew that I wouldn't have posted the link, I just googled Congressman being harassed in airports as a starter to find a couple of links to stories I remember, and by fluke drag up an ugly ghost from the past.

Other than that, I should be able to dual a little more effectively with the old lady tonight :)

[Adam L]

2. Do foreigners who have commited crimes in the U.S. (plotting the mass murder of our citizens) have any rights by our laws? What are they?

If the person(s) have committed the crime in the US and are subjected to criminal prosecution for such then they are entitled to full rights. They are defendants. If they committed the act outside of the US, it becomes very complicated. First of all, you have to be careful using the term "criminal." Before you can use that term, it must determined whether or not the action can be brought under US pervue and then determined whether it is in fact a crime. I haven’t read the statutes and/or the case law in a long time so I won’t go into this any further. Also, this is a very simplified answer to your question.



3. What is the advantage (if any) of trialing these self-admitted criminals in the civilian system over the military system?

Advantage: Saving a little face internationally and staying a little more in line with international law. (The whole issue is in a grey area. Not so much grey, as not-discussed with the exception of a few rulings by international tribunals.)

Downside: There are too many to list. Basically, I don’t know if there will be any case left after pretrial procedures.

Adam L

[jmm99]

Bonne chance with your "young lady" tonite - and with the bar exam. :)

Factually, the Michigan Daily was (in my era) a very good student newspaper - editorially, it was somewhat to my left. That was simply par for the course then (and probably now), proving the old adage (credits ?) : If you are not a Communist when you are 20, you have no heart. If you are still a Communist at 30, you have no brain.

What people miss about this non-kinetic area of AQ-Taliban detention and "war crimes" is that it is very much linked with kinetic areas. For example, let's take Ahmed, an AQ special operator (real bad guy who believes he is and is a combatant), sitting somewhere in Astan or Pstan.

The 2001 AUMF declares a state of armed conflict to exist with respect to the organizations and persons responsible for 9/11. That declaration, taken together with the traditional laws of armed conflict (LOAC - to us oldsters, LOAC = the Laws of War as presented in FM 27-10, The Law of Land Warfare (http://www.aschq.army.mil/gc/files/fm27-10.pdf)), provides a broad scope for kinetic actions.

BTW, everyone at SWC should have a copy of FM 27-10 at their fingertips - and be familiar with it. Another ancient publication of value to "small war" devotees is A Treatise on the Juridical Basis of the Distinction between Lawful Combatant and Unprivileged Belligerent (http://www.loc.gov/rr/frd/Military_Law/pdf/treatise.pdf) (Army JAG School 1959). That treatise was authored by a team which linked it to the then-developing doctrine enshrined in FM 31-21, Guerrilla Warfare and Special Forces Operations (my hard copy is the 1961 rev., signed off by George Decker (http://en.wikipedia.org/wiki/George_Decker) before Pres. Kennedy determined his early retirement). Used to be a Rapidshare link to pdf - now gone.

If you know the "stuff" in these publications, you can be reasonably smart about the traditional Laws of War applicable to "small wars". Otherwise, youse is a bit dumb. End mini digression.

Moving now to the present, we find that the Laws of War re: "small wars" and "irregular combatants" have not changed that much in their basics - although AUMFs have replaced the formal "declarations of war". Hint: search this thread for "AUMF" and you will find a number of posts.

The theory of the 2001 AUMF was beautifully presented in March 2009 by a DoJ memorandum filed in one of the DC habeas cases, DoJ Memorandum re: detention (http://council.smallwarsjournal.com/showpost.php?p=68147&postcount=225) and continuation of DoJ memo ... (http://council.smallwarsjournal.com/showpost.php?p=68148&postcount=226) . The bottom line from the Obama DoJ in March 2009 was this:


Moreover, the Commentary to Additional Protocol II draws a clear distinction between individuals who belong to armed forces or armed groups (who may be attacked and, a fortiori, captured at any time) and civilians (who are immune from direct attack except when directly participating in hostilities).

This nugget provides the legal basis for direct actions against AQ-Taliban combatants under the traditional Laws of War (as opposed to specific ROEs based on "best practices COIN" - a little on that below). I was asked the question: "Be interested in how you see what we do now with released Gitmo terrorist Taliban who is now commander of all Taliban terrorist operations for Kandahar Province in Afghanistan." And here is my answer (http://council.smallwarsjournal.com/showpost.php?p=68149&postcount=227).

Now, I realize our present ROEs are much more restrictive. I had a conversation not too long ago with my paralegal's nephew who is an FA O-3 with two OIF tours (calling in fires from up front and directing them from base). Smart guy who knows his ROEs - no specifics there since they are classified; but we had a brief general discussion of ROEs and the Laws of War. I posited the hypo (let's play WWII) where I am a German captain, unarmed and sitting at my desk well behind the front lines and writing a report. Can you drop a 105 in my lap ? His answer was no, you're not a hostile threat. Good answer based on current ROE policy, but very restrictive in terms of the Laws of War.

The point of this is simply that, if we remove the traditional Laws of Wars from the equation, and proceed against Ahmed, the AQ special operator, solely under "law enforcement" rules, we limit our legal kinetic options drastically.

Admittedly, transitioning between the Laws of War (military) and the Rule of Law (law enforcement) can get hairy in a "small war" context. My furry friend Polarbear1605 (http://council.smallwarsjournal.com/member.php?u=2680) is one of the few here who seems concerned about the topic. Perhaps I've been remiss in not hammering home the concept that these are not solely academic legal issues, but affect how "small wars" are conducted at the tactical and operational levels.

Regards

Mike

[slapout9]

Admittedly, transitioning between the Laws of War (military) and the Rule of Law (law enforcement) can get hairy in a "small war" context. My furry friend Polarbear1605 (http://council.smallwarsjournal.com/member.php?u=2680) is one of the few here who seems concerned about the topic. Perhaps I've been remiss in not hammering home the concept that these are not solely academic legal issues, but affect how "small wars" are conducted at the tactical and operational levels.
Regards

Mike

jmm99, yes you have been:rolleyes:. This is Lawfare used against us vs. the needed appreciation on how to use it against the enemy.

[Ken White]

...If you know the "stuff" in these publications, you can be reasonably smart about the traditional Laws of War applicable to "small wars". Otherwise, youse is a bit dumb. End mini digression.

Moving now to the present, we find that the Laws of War re: "small wars" and Perhaps I've been remiss in not hammering home the concept that these are not solely academic legal issues, but affect how "small wars" are conducted at the tactical and operational levels.I'm not sure you've been remiss but I for one have appreciated the effort. Having witnessed what lawfare has done to tie my sons hands versus the far greater freedom of action of action I had, it is something about which todays fighters need to be very aware... :(

[jmm99]

I call on my mascot to deliver the message:

970

otherwise, he/she will eat you.

Since one of my Marine ancestors carried the handle "dit Sansrémission", I'm more genetically tuned with Ken's caption "Remiss, never!". :)

OK, definitely two more who have interest in the topic. Others ? - hopefully many, since it affects all of our lives.

Regards

Mike

[Bill Moore]

Posted by jmm99


Another ancient publication of value to "small war" devotees is A Treatise on the Juridical Basis of the Distinction between Lawful Combatant and Unprivileged Belligerent (Army JAG School 1959). That treatise was authored by a team which linked it to the then-developing doctrine enshrined in FM 31-21, Guerrilla Warfare and Special Forces Operations (my hard copy is the 1961 rev., signed off by George Decker before Pres. Kennedy determined his early retirement).

Highly recommended read. It addresses the, IMO, the false assumption that the West can define who may and may not be a combatant. The reasons irregulars are called unlawful are all Western ideas. If irregulars followed the rules we posited then they would be easy to defeat, so obviously it is a desired state, but the reality is it a state of fantasy.

From the text,
The Conventions criteria requires then, by four seemingly innocuous phrases that the irregular use the strategy and tactics of the conventional army as the price for protected status upon capture.


The 2001 AUMF declares a state of armed conflict to exist with respect to the organizations and persons responsible for 9/11.

From what I read the AUMF addresses AQ, the Taliban, and associates (though I believe it specifies Afghanistan), and is largely focused on the 9/11 attackers and facilitators; however, I didn't see where or if it addressed the morphing nature of the threat, or the ability to conduct pre-emptive attacks against emerging home grown terrorist groups (not just in the U.S.) who have the intention to attack U.S. interests. The 13 pagers you sent the link to said there is a multi-agency underway that is looking to the address future threats and establish their legal status. We needed that a few years ago, so the sooner that comes out the better (of course, only if it is a practical document that addresses the real world we live in, versus the world we want to live in).


I posited the hypo (let's play WWII) where I am a German captain, unarmed and sitting at my desk well behind the front lines and writing a report. Can you drop a 105 in my lap ? His answer was no, you're not a hostile threat. Good answer based on current ROE policy, but very restrictive in terms of the Laws of War.

Complete BS IMO, if he is a bad actor and we know it I should be able to walk into his bedroom while he sleeping and ensure he doesn't wake up. The intent in war is to kill the enemy, not read him his rights and bring him back home so he can be put on trial.


Admittedly, transitioning between the Laws of War (military) and the Rule of Law (law enforcement) can get hairy in a "small war" context.

We're putting our Soldiers and Marines in a situation where the law overrides common sense, which is as wrong as wrong can get. Our civilian leadership should address this as a crisis that needs to be resolved with a sense of urgency.

Appreciate all the posts Mike, we have to understand lawfare since it is a reality we have to live with. The intent is to understand it first, then fight the stupidity.

President Bush was very much correct when he said this will be a different kind of war.

[Steve the Planner]

I spent a lot of time crossing the Ashaki Canal around Balad where the captives were shot, and used to delude myself that I was wondering "What would I have done?"

The truth is so thoroughly captured in Bill Moore's comment:

"We're putting our Soldiers and Marines in a situation where the law overrides common sense, which is as wrong as wrong can get. Our civilian leadership should address this as a crisis that needs to be resolved with a sense of urgency."

Steve

[jmm99]

I'd amend Bill's quote as follows:


We're putting our Soldiers and Marines in a situation where politics, not the law, overrides common sense, which is as wrong as wrong can get. Our civilian leadership should address this as a crisis that needs to be resolved with a sense of urgency.

since the law (like the military) is an instrument of policy.

Based on the recent CNN documentary (and what I've read from CLAMO sudies), the conscious political choice was made by the USG to turn over Iraqi detainees to the Iraqi criminal justice system for prosecution under law enforcement rules. Those Iraqi rules placed a high bar re: prosecutions pursuant to US detentions (even higher today under the SOFA). As understood by the NCOs (and the PFC who was interviewed) the Iraqi system was a "revolving door". I dunno whether that was true or not, but that is what they believed.

The other political option would have been to retain jurisdiction over US detainees and process them accordingly - based on whether or not they were security risks. I'm not talking about "war crimes" prosecutions for them; and I am not talking reasonable doubt, but rather a preponderence of the evidence - as in the DC habeas cases. Under that standard, as I applied the evidence in the case as I watched the documentary, the four detainees were "bad guys" and ought to have been detained for the duration (until our withdrawal from Iraq).

So, the law provided two paths that could have been followed: the Iraqi path or the US path. The USG (whether fully aware of secondary and tertiary effects is another question) decided to go with the Iraqi path. So, four non-innocents are dead and three NCOs are spending time at Leavenworth.

I would say that our civilian leadership should address itself as a crisis that needs to be resolved with a sense of urgency. Note that the decision to follow the Iraqi path was made by the Bush II administration, although from all appearances the Obama administration would probably reach the same decision.

Regards

Mike

[davidbfpo]

Tim Stevens comments on an English remand in custody pending deportation case:http://icsr.info/blog/High-Court-Secret-Evidence-Insufficient-Grounds-For-Detention-Without-Trial


...it does mean that the 'secret evidence' on which the case hinges is insufficient grounds for holding someone without legal hearing, even if national security reasons are cited for doing so....'if the government is going to lock you up, it needs to tell you why' – as it is required to do with other types of case. 'Terrorism' is a crime, not an excuse to suspend legal process.

The defendant is a Pakistani national arrested in Operation Pathway, where no-one was charged and HMG seeks to deport him as a risk to national security. See this blog for some details of the case: http://raffaellopantucci.wordpress.com/2009/12/01/pathway-to-what/#more-178

[jmm99]

about UK deportation procedures, and what procedures (if any) exist to allow discovery and protection of classified evidence. My reading of the Guardian article, Judges rule against government over secret evidence in terror cases (http://www.guardian.co.uk/uk/2009/dec/01/secret-evidence-trial-terrorism-government), suggested to the uninformed US lawyer that the cases involved a legal resident alien and (perhaps) an illegal resident alien.

As to US law, the right to petition for habeas corpus is quite broad (e.g., the Gitmo cases); but getting a free pass to stay in CONUS is another story (e.g., again the Gitmo cases). Aside from those peculiar cases, see these more general references:

AILF - Introduction to Habeas Corpus (http://www.ailf.org/lac/pa/lac_pa_0406.pdf).

BCLR - Detention Decisions and Access to Habeas Corpus (http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bctwj/25_1/02_TXT.htm).

CRS - Immigration-Related Detention (http://www.fas.org/irp/crs/RL32369.pdf) (2004).

CRS - Immigration: Terrorist Grounds for Exclusion and Removal of Aliens (http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL32564_09052006.pdf) (2006).

As in any Federal court case, classified evidence is not generally a problem.

Regards

Mike

[davidbfpo]

The UK law on phone tapping AKA intercept evidence has been subject to another review and once again rejected as a useful option. Here are some links:

Official Report http://security.homeoffice.gov.uk/ripa/publication-search/general-publications/intercept-as-evidence?view=Binary

A critical commenatary http://www.spyblog.org.uk/ and by a respected BBC reporter: http://news.bbc.co.uk/1/hi/uk/8406478.stm

IIRC this means the UK is the only common law juristdiction that does not allow intercept into evidence.

[davidbfpo]

The controversy over the release of a US-provided intellgeince document in the case of Binyam Mohammed has now reached the Court of Appeal:
http://www.telegraph.co.uk/news/uknews/6819842/UK-courts-irresponsible-for-trying-to-publish-US-intelligence-says-Foreign-Secretary.html

Amazing sub-title:
The High Court has been accused of “unnecessary and profoundly damaging” behaviour suggests the government is being petulant at the minimum.

[davidbfpo]

The case of David Headley, a Pakistan-born American national arrested in Chicago in October, gets strange, although not surprising to some. First this:http://www.philly.com/philly/news/homepage/79150357.html?viewAll=y
with the headline: 'Terror suspect was drug dealer, then informant'. Makes interesting reading and poses questions how he became so involved with LeT in the plot.

Across the water, The Daily Telegraph, clearly using Indian sources, under the headline: 'Mumbai suspect is US double agent, India claims' and the link: http://www.telegraph.co.uk/news/worldnews/northamerica/usa/6826571/Mumbai-suspect-is-US-double-agent-India-claims.html

Then there is the (odd) evidence that Headley and co-accussed Rana were recorded in a car:
Prosecutors write: "On September 7, 2009, Headley and Rana took a long car ride and discussed several topics. This conversation was recorded. During their conversation, Headley and Rana discussed the attacks that occurred in late November 2008 in Mumbai, India, in which approximately 170 people were killed. It is clear from the conversation and extrinsic corroboration that Rana was told just days before the Mumbai attacks that the attacks were about to happen. Elsewhere in the conversation, Rana asked Headley to pass Rana's compliments directly to the specific Lashkar e Tayyiba member they both knew who had coordinated the attacks."

See:http://abclocal.go.com/wls/story?section=news/iteam&id=7170127

[jmm99]

The DC habeas cases involving Gitmo detainees continue; but the status of these cases - and their importance - are in a sort of limbo because of pending decisions, which could involve all three branches of government:

1. Appeals of DC habeas cases (and military commission issues) pending before the DC Circuit Court of Appeals and SCOTUS itself.

2. Executive orders dealing with transfer of Gitmo detainees to the US for either Article III Federal court criminal trials, or for military commission trials, or for continued detention without trial.

3. Possible legislative action "clarifying" or "refining" all of the above.

Thus, while the DC habeas cases present all kinds of inside baseball issues (mostly procedural) to devotees, they are presently not of that much interest to the general reader (IMO).

However, one case is of general interest - and will be of particular interest to David because it involves Binyam Mohamed - 12/16/2009 2005cv1347-253 (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1347-253) Civil Action No. 2005-1347 (MOHAMMED et al v. BUSH et al) Doc No. 253 (order) by Judge Gladys Kessler (81 page opinion).

The bottom line is that Judge Kessler ordered the release of Farhi Saeed Bin Mohammed. I do not recall a case in which Judge Kessler has not ordered release, but I have not checked through all of her opinions. I do believe it is fair to say that Judge Kessler requires definitive proof that the detainee was a combatant (in essence, AK in hand).

The government's major evidence on that point was Mohammed's presence at an AQ training camp, established by statements from Binyam Mohamed. The opinion devotes many pages to those statements (pp. 40-70), which are probably the longest judicial findings of facts re: Binyam Mohamed so far filed.

The Binyam Mohamed evidence was excluded based on the Fruit of the Poisonous Tree doctrine. Read the opinion and draw your own conclusions.

Once that evidence was excluded, Judge Kessler concluded that Mohammed was well on the path to becoming an AQ combatant, but had not reached that status when he was captured (pp. 75-81).

Certainly the result in this case was affected by the "Exclusionary Rule Complex". I'm left with the belief that Mohammed was guilty in fact, but not in law because of that procedural device.

[jmm99]

Thomas F. Hogan is the senior (and very respected) DC District Court judge, who more than a year ago agreed to act as coordinator for more than 200 detainee habeas cases. He has only occasionally decided those cases on the merits.

Last week, he decided the case of Musa’ab Al Madhwani, adversely to the detainee. In deciding that case, he took a broader view of detention than many of his colleagues have; and also considered evidence against the detainee that some of his colleagues have rejected. In effect, he approached that particular case in much the same way as I would have (for whatever that is worth). A written opinion will follow, but the essence of his thoughts are contained in his 14 Dec bench opinion (http://www.scotusblog.com/wp/wp-content/uploads/2009/12/Hogan-transcript-12-14-09.pdf).

The importance of Judge Hogan's statements on the record go beyond the particular case itself because he took both the Executive and Legislative branches to task for not enacting clearer guidelines in both the substantive and procedural areas of detention. Those statements gave rise to commentaries at SCOTUS blog and at the Wash Post.

SCOTUS Blog - Lyle Deniston (http://www.scotusblog.com/wp/commentary-did-boumediene-leave-too-much-undone/)


Commentary: Did Boumediene leave too much undone?
A key judge's lament over detention
Lyle Denniston | Tuesday, December 22nd, 2009 5:20 pm

Commentary

Eighteen months ago, the Supreme Court decided Boumediene v. Bush, assigning federal trial judges in Washington, D.C., a major new role in crafting the rules that would govern the government’s power to detain individuals suspected of terrorism. In recent months, those judges have been making considerable progress in filling the gaps that the Justices left. But the judge who has had the key leadership role is clearly frustrated. The unanswered question is whether his colleagues on the District bench feel the same way.
....
He and his colleagues, he said, have “tried very hard to move these cases, but we are operating…with the procedures, new rules of evidence that will need clarification. It is unfortunate, in my view, that the Legislative Branch of the government, and the Executive Branch, have not moved more strongly to provide uniform, clear rules and laws for handling these cases.”
....
Hogan noted that he and his colleagues have adopted different “substantive law” standards on when further detention was justified. “That needs to be somehow resolved,” he went on, “and I think that would have been best for the Legislature to have passed new rules and procedures and rules of evidence to handle these cases.”

There is, he argued, “a need for a national legislative solution. It wold be appropriate “at another time and place,” he said, “to talk about a new court to handle these [cases],” perhaps modeled on the secret Foreign Intelligence Surveillance Court that approves government requests for secret intelligence-gathering wiretapping.

The existing system, Hogan said, is rather “an unfair process for the detainees in this sense that the law moves at a glacier pace, and since this is all new law in many areas, it has to be litigated through the circuit [D.C. Circuit Court], which the circuit moves in very due deliberate speed.”
......
The judge’s plea for help from the other branches of government echoes what some scholars, skeptical of the judicial process in this context, have been recommending for months. Indeed, Hogan’s comments were cited specifically in a newspaper opinion column Tuesday by two of those private advocates — law professor Jack Goldsmith and think-tank analyst Benjamin Wittes.

and the Wash Post - Goldsmith & Wittes (http://www.washingtonpost.com/wp-dyn/content/article/2009/12/18/AR2009121802307.html)


No place to write detention policy
By Jack Goldsmith and Benjamin Wittes
Tuesday, December 22, 2009

Since U.S. forces started taking alleged terrorists to Guantanamo Bay, Cuba, the task of crafting American detention policy has migrated decisively from the executive branch to federal judges. These judges, not experts in terrorism or national security and not politically accountable to the electorate, inherited this responsibility because of the Supreme Court's intervention in detention policy. Over time they maintained it because legislative and executive officials of both political parties refused to craft a comprehensive legislative approach to this novel set of problems that cries out for decisive lawmaking.
....
Now a more important voice has joined the call for legislative reform.

Judge Thomas F. Hogan of the U.S. District Court in Washington is one of the most respected federal district judges on the bench. And he has a particularly informed view of the disarray of modern detention policy. Not only is he one of the judges hearing detainee habeas appeals, but he was asked by most of his judicial colleagues to consolidate and manage common issues in their cases. He is, in short, one of the people to whom Congress has effectively delegated the task of writing these rules -- a person with as holistic and in-the-weeds an understanding of the issues as is possible.

Last week, in ruling on the merits of a detainee's case, he issued a scathing indictment of the current litigation and an urgent plea for congressional participation in cases that "go to the heart of our judicial system."

"It is unfortunate," he said in an oral opinion from the bench, "that the Legislative Branch of our government and the Executive Branch have not moved more strongly to provide uniform, clear rules and laws for handling these cases." While allowing that the various judges were "working very hard and in good faith," he lamented that "we have different rules and procedures being used by the judges," as well as "different rules of evidence" and "a difference in substantive law." For Judge Hogan, it all "highlights the need for a national legislative solution with the assistance of the Executive so that these matters are handled promptly and uniformly and fairly for all concerned."
.....
The Guantanamo closure process and the appropriations process for the new terrorist detention facility in Illinois offer a perfect opportunity to correct this long-festering problem. The administration will have to work with Congress, if only to permit Obama to move detainees to the new site. Yet if legislation stops there, the political branches can congratulate themselves only on moving the location of terrorist detention and not on strengthening and clarifying detention policy.

By contrast, if Congress and the administration were inclined to perform their constitutional duties, they could draw on eight years of judicial decisions, legal briefs and scholarship to craft clear, stable rules. There are myriad issues for a responsible Congress to address, but at a minimum it should offer a clear definition of who can be detained, a coherent set of evidentiary and procedural rules to determine who fits the definition of an enemy, and guidance concerning the scope of the government's obligation to disclose evidence to detainees' lawyers.

The goal, simply put, should be to replace what Judge Hogan called "procedures drawn up by the court, and principally [by] myself . . . in a new venue that has been untested" with one that carries the legislature's stamp and the president's signature, and that answers some of the hard policy questions our political institutions have punted to the courts. The courts' job, in such a world, would be to adjudicate detainee cases, rather than to write conflicting rules that they then have to apply.

The need for a comprehensive legislative solution (and a separate Federal court to handle detention cases) have been mentioned in this thread several times (Andrew McCarthy, for example, has been a consistent proponent).

Judge Hogan is on the right track. Getting the Executive and Legislative branches on that same track is another story. If only they "were inclined to perform their constitutional duties" .......

Merry Christmas to all

Mike

[jmm99]

The Complaint and Affidavit (http://blogs.suntimes.com/sweet/12.26.09%20Complaint%20Affidavit.pdf) is a short 6 pages. I expect the indictment will allege more serious charges.

[davidbfpo]

The BBC report:http://news.bbc.co.uk/2/hi/south_asia/8436747.stm that the five US citizens from Virginia, who left for Pakistan are to be charged in Pakistan.


Pakistan police are seeking to charge five Americans arrested in the country in early December with terrorism. Investigator Tahir Gujar said the men, who are suspected of having links to Islamic militants, will appear in court in Sargodha on 4 January. Police also want the young Muslims to face life sentences for allegedly plotting to carry out attacks. US officials have also been looking at charging the same men, the Associated Press reported.
The are reported to be from the Washington DC area in the US.

I'm sure this story has appeared before on SWC, on another thread.

[davidbfpo]

A possible rift in Anglo-US relations is reported over what intelligence the UK provided on Abdulmutallab; the article is sub-titled:
Barack Obama is under pressure to disclose what information MI5 passed to the American authorities about the Detroit bomber after Downing Street disclosed that a file had been "shared" with the CIA in 2008....The information is understood to have detailed Abdulmutallab's contacts with radical preachers but did not give warning that he might be a terrorist threat.

Link:http://www.telegraph.co.uk/news/worldnews/northamerica/usa/barackobama/6938334/Pressure-on-Barack-Obama-to-reveal-what-Britain-said-about-Detroit-bomber.html

Now if the US insisted on their intelligence on Binyam Mohammed being kept out of the public domain, which is still subject of civil court proceedings here; how will the UK government react to a public disclosure of UK-provided intelligence?

[jmm99]

The Al-Bihani case, when before Judge Richard J. Leon, was reported in Judge Leon decides again ... (http://council.smallwarsjournal.com/showpost.php?p=65500&postcount=175)

Judge Leon's denial of the detainee's release was appealed to the DC Circuit. As noted here before, the temperment of judges (as also jurors) is all important. On this appeal, the luck of the draw favored the DoJ. The 3-judge panel was of a generally conservative cast (see Wiki bios for Janice Rogers Brown (http://en.wikipedia.org/wiki/Janice_Rogers_Brown), Brett M. Kavanaugh (http://en.wikipedia.org/wiki/Brett_Kavanaugh) and Stephen F. Williams (http://en.wikipedia.org/wiki/Stephen_F._Williams)). The panel affirmed Judge Leon.

From SCOTUSBlog (http://www.scotusblog.com/wp/wide-detention-power-upheld/):


Wide detention power upheld
Circuit's first ruling post-Boumediene
Lyle Denniston | Tuesday, January 5th, 2010 12:13 pm

The D.C. Circuit Court, filling in some of the legal blanks left by the Supreme Court on the president’s power to detain terrorist suspects, on Tuesday upheld the broadest view the government has taken of that authority, and ruled that the power is not limited in any way by international law, including the law of war. Only domestic law controls whom the president may detain, and those home-grown legal concepts sweep widely, the appeals court ruled.
.....
The ruling in Al-Bihani v. Obama (Circuit docket 09-5051) was the first by the Circuit Court to directly apply the Supreme Court’s 2008 decision in Boumediene v. Bush creating a constitutional right for Guantanamo Bay detainees to challenge their captivity. Unless reviewed and overturned either by the en banc Circuit Court or the Supreme Court, the new decision will control how scores of detainee cases are resolved in District Court in Washington.

The Circuit Court panel embraced the definition of detention power first spelled out by the Bush Administration (somewhat wider than the Obama Administration has advocated) and adopted by U.S. District Judge Richard J. Leon. Leon has been prepared to allow a wider scope for detention than most of his District Court colleagues; their views on the issue must now yield. Conceivably, the practical result may be that fewer detainees can now win court orders for their release. While the government has not appealed to the Circuit Court all of the prior release orders, it presumably has a free hand now to contest almost any such order.

Moreover, the government’s chances of defending detentions in court appeared to be enhanced by the new ruling, since the panel concluded that detainees captured on overseas battlefields do not have the full array of procedural rights that, say, a domestic criminal would have in a habeas case. “Requiring highly protective procedures at the tail end of the detention process for detainees like Al-Bihani would have systemic effects on the military’s entire approach to war,” the panel said.

The decision was supported in full by two of the most conservative members of the Circuit Court: Judges Janice Rogers Brown (who wrote the main opinion as well as a separate concurrence for herself alone) and Brett M. Kavanaugh. The third member of the panel, Senior Circuit Judge Stephen F. Williams, supported only the result — denial of habeas for Al-Bihani — and expressly questioned the majority’s view that presidential detention power was not limited by international law, including the law of war.

Although the opinion for the majority represented the views of only two members of the Circuit Court, it is a decision that is binding on any other Circuit panel that hears a Guantanano detainee case raising issues of detention power and courtroom rights. It could be overturned at the Circuit Court level only by a majority of the en banc Court. Al-Bihani’s lawyers have the option of seeking such review, or taking the case on to the Supreme Court. ......

For the moment, this case is binding precedent in the Gitmo habeas cases. The next step for detainees is en banc hearing by the DC Circuit or appeal to SCOTUS.

Here are the key facts (pp. 2-3):


Al-Bihani, a Yemeni citizen, has been held at the U.S. naval base detention facility in Guantanamo Bay, Cuba since 2002. He came to Guantanamo by a circuitous route. It began in Saudi Arabia in the first half of 2001 when a local sheikh issued a religious challenge to Al-Bihani. In response, Al-Bihani traveled through Pakistan to Afghanistan eager to defend the Taliban’s Islamic state against the Northern Alliance. Along the way, he stayed at what the government alleges were Al Qaeda–affiliated guesthouses; Al-Bihani only concedes they were affiliated with the Taliban. During this transit period, he may also have received instruction at two Al Qaeda terrorist training camps, though Al-Bihani disputes this. What he does not dispute is that he eventually accompanied and served a paramilitary group allied with the Taliban, known as the 55th Arab Brigade, which included Al Qaeda members within its command structure and which fought on the front lines against the Northern Alliance. He worked as the brigade’s cook and carried a brigade-issued weapon, but never fired it in combat. Combat, however - in the form of bombing by the U.S.-led Coalition that invaded Afghanistan in response to the attacks of September 11, 2001 - forced the 55th to retreat from the front lines in October 2001. At the end of this protracted retreat, Al-Bihani and the rest of the brigade surrendered, under orders, to Northern Alliance forces, and they kept him in custody until his handover to U.S. Coalition forces in early 2002. The U.S. military sent Al-Bihani to Guantanamo for detention and interrogation.

Based on the detainee's admissions, Judge Stephen F. Williams (pp. 28-34) saw no reason to complicate this case, since al-Bihani was lawfully detained under the AUMF and various of his arguments were immaterial once that issue was settled. Judge Williams (correctly, IMO) thought the majority two judges did not exactly portray the role played by interenational law and the Laws of War.

The key law on which the majority focused were the statutes applicable to determining the detainee's status (pp. 8-9):


The statutes authorizing the use of force and detention not only grant the government the power to craft a workable legal standard to identify individuals it can detain, but also cabin the application of these definitions. The AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” AUMF § 2(a). The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. 542 U.S. at 519. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. 2006 MCA sec. 3, § 948a(1). The 2006 MCA authorized the trial of an individual who “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” Id. § 948a(1)(A)(i). In 2009, Congress enacted a new version of the MCA with a new definition that authorized the trial of “unprivileged enemy belligerents,” a class of persons that includes those who “purposefully and materially supported hostilities against the United States or its coalition partners.” Military Commissions Act of 2009 (2009 MCA) sec. 1802, §§ 948a(7), 948b(a), 948c, Pub. L. No. 111-84, ###. XVIII, 123 Stat. 2190, 2575–76. The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government’s detention authority logically covers a category of persons no narrower than is covered by its military commission authority. Detention authority in fact sweeps wider, also extending at least to traditional P.O.W.s, see id. § 948a(6), and arguably to other categories of persons. But for this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.

In short, the authorization to kill includes an authorization to capture and detain. IMO, the power to detain (as security risks) goes beyond the power to kill (limited to "combatants") and includes cadres and infrastructure who might be considered "non-combatants" (civilians).

end part 1

[jmm99]

The majority also considered and rejected a number of claims based on international law (pp. 6-7):


Al-Bihani challenges the statutory legitimacy of his detention by advancing a number of arguments based upon the international laws of war. He first argues that relying on “support,” or even “substantial support” of Al Qaeda or the Taliban as an independent basis for detention violates international law. As a result, such a standard should not be read into the ambiguous provisions of the Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001) (reprinted at 50 U.S.C. § 1541 note), the Act empowering the President to respond to the attacks of September 11, 2001. Al-Bihani interprets international law to mean anyone not belonging to an official state military is a civilian, and civilians, he says, must commit a direct hostile act, such as firing a weapon in combat, before they can be lawfully detained. Because Al-Bihani did not commit such an act, he reasons his detention is unlawful. Next, he argues the members of the 55th Arab Brigade were not subject to attack or detention by U.S. Coalition forces under the laws of co-belligerency because the 55th, although allied with the Taliban against the Northern Alliance, did not have the required opportunity to declare its neutrality in the fight against the United States. His third argument is that the conflict in which he was detained, an international war between the United States and Taliban-controlled Afghanistan, officially ended when the Taliban lost control of the Afghan government. Thus, absent a determination of future dangerousness, he must be released. See Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) art. 118, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. Lastly, Al-Bihani posits a type of “clean hands” theory by which any authority the government has to detain him is undermined by its failure to accord him the prisoner-of-war status to which he believes he is entitled by international law.

The majority the generally dismissed these arguments via the portion of its opinion with which Judge Williams partially disagreed (p. 7):


Before considering these arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, ###. X, 119 Stat. 2739, 2741–43, or the MCA of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 111(3)–(4) (1987). Even assuming Congress had at some earlier point implemented the laws of war as domestic law through appropriate legislation, Congress had the power to authorize the President in the AUMF and other later statutes to exceed those bounds. See id. § 115(1)(a). Further weakening their relevance to this case, the international laws of war are not a fixed code. Their dictates and application to actual events are by nature contestable and fluid. See id. § 102 cmts. b & c (stating there is “no precise formula” to identify a practice as custom and that “[i]t is often difficult to determine when [a custom’s] transformation into law has taken place”). Therefore, while the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks, see Hamdi, 542 U.S. at 520, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.

Much of this is correct, but it may give the wrong impression as to the definitive rules of international law accepted by the US (e.g., Hague and 1949 Geneva), as well as the peculiar US Laws of War which have developed since the Lieber Code of 1863.

What the majority was really addressing (and which it was rejecting) seems to lie in this paragraph (p.8):


Therefore, putting aside that we find Al-Bihani’s reading of international law to be unpersuasive, we have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles. The sources we look to for resolution of Al-Bihani’s case are the sources courts always look to: the text of relevant statutes and controlling domestic caselaw.

That is, "the intricate application of vague treaty provisions and amorphous customary principles."

In that I concur. The flow of I Law into US positive law is illustrated by this chart (note the Hague and Geneva flows):

1014

Incorporation of other treaties, and especially of "customary international law", is a murky area. The majority was well advised in not going there where clear statutory authority existed for its decision.

That having been said, there were arguments against the detainee that could have been advanced by the court, based on US traditional Laws of War and the Hague and Geneva Conventions accepted by the US. Perhaps, the DoJ did not make those arguments.

[Boondoggle]

;)

And as I'm reading through it this morning, I thought to check here before I finished to see if you had weighed in and I am rewarded.

As to "International Law" I've told people I think its more apt to call it "International Customs and Courtesies" being more descriptive of their actual weight. Important, and moral guideposts, and deviation from them too long can create far reaching reprecussions, but dispositive they are not unless as you point out they are codified within our own law.

Now having said that, they should have made that distinction instead of the language they used that without reading further makes it sound like we don't care at all about the laws of war. Wish they'd been more careful, but I'm only on page 11.

[stanleywinthrop]

JMM,

As you referred to it, customary international law is indeed an amourphous concept. Basically defined it is rule of international behavior that the vast majority or even all nations follow out of a sense of legal obligation. Out of a sense of legal obligation is a critical determination. There is no central storehouse of customary international law other than in various treatise and case decisions. For a great discussion of how to find and use customary international law look at Paquette Habana and The Lola, 175 U.S. 667 (1900). Basically this case arose out of the Spanish-American war. The U.S. Navy had captured a small cuban fishing vessel as war prize, and the owners sued in U.S. court to get the boat back after the war. They claimed, and ultimatly proved to the Supreme Court that it was customary international law for nations not to capture small fishing vessels during war.

Customary international law is incorporated into U.S. law trough various Congressional acts, one of which that comes to mind is the Alien Tort Claims Act, under which someone can sue an alien (of the earthly variety) for torts committed in violation of international law, to include customary international law. The ATCA does not in and of itself define customary international law, but leaves it to the courts to determine. There are number of Circuit Court of Appeals decisions out there that develop this concept.

[slapout9]

;)

And as I'm reading through it this morning, I thought to check here before I finished to see if you had weighed in and I am rewarded.

As to "International Law" I've told people I think its more apt to call it "International Customs and Courtesies" being more descriptive of their actual weight. Important, and moral guideposts, and deviation from them too long can create far reaching reprecussions, but dispositive they are not unless as you point out they are codified within our own law.

Now having said that, they should have made that distinction instead of the language they used that without reading further makes it sound like we don't care at all about the laws of war. Wish they'd been more careful, but I'm only on page 11.


Ditto, really nice chart jmm

[jmm99]

Thanks for the kind words.

It looks like Judge Williams, you and me have the same problem with the majority opinion - i.e., it "makes it sound like we don't care at all about the laws of war." Obviously we do and so also the US - from the Lieber Code of 1863 (which was the first true codification of the modern laws of war) through acceptance of Hague and 1949 Geneva.

I expect part of the problem is that the two judges in the majority do not run into either international law or military law cases that often (and also Judge Williams for that matter, whose bio shows an emphasis on economic law, primarily oil and gas issues).

I notice that I did not link the opinion directly in my post last nite. It is here (http://www.scotusblog.com/wp/wp-content/uploads/2010/01/CADC-ruling-in-Bihani-1-5-10.pdf).

The real problem that the majority saw in international law relates to that the legal theories that have been developed into what is usually called "International Humanitarian Law" as applied to armed conflicts. Its proponents are adverse to calling it either the Laws of War or the Laws of Armed Conflict. Part of it is based on expanded concepts found in Additional Protocol I to the 1949 GCs (AP I has been rejected by the Senate), as well as a number of other international conventions dealing with human rights.

That part of "International Humanitarian Law", which has not been adopted as positive law in the US Laws of War (Laws of Armed Conflict), is argued by its proponents to be a part of US law (often, a supreceding part) via "customary international law". The purpose of the chart is to illustrate the difference between international law positively adopted (Hague and 1949 Geneva), and "customary international law".

As to "customary international law", it can be adopted by any of the three constitutional branches - in areas where they are given constitutional power. For example, SCOTUS has adopted some provisions of "customary international law" in the admiralty field (akin to a "common law of admiralty"), but the Federal courts clearly have jurisdiction over admiralty cases. As far as I know, SCOTUS has not claimed a general power to adopt "customary international law". It has left those decisions to the executive and legislative branches, who together have the final say in international matters and matter involving armed conflicts.

My major quibble with the majority opinion is that it did not discuss Common Articles 2 and 3 to the 1949 GCs. Those articles, when interpreted correctly, establish the limited rights afforded violent non-state actors such as AQ and the Taliban.

I very much agree with Judge Brown's separate concurrence, which was a letter to the executive and legislative branches to adopt some clear and definitive rules concerning violent non-state actors and their irregular combatants. She echoed Judge Hogan's statements to the same effect, which are reported here in Judge Hogan & the Future (http://council.smallwarsjournal.com/showpost.php?p=89673&postcount=451).

Regards

Mike

[jmm99]

Thank you, sw, for the citation to The Paquete Habana (http://supreme.justia.com/us/175/677/case.html), 175 U.S. 677 (1900). This is one of a number of cases in which SCOTUS had to deal with the extraterritorial reach of the Constitution and international law in the context of US global expansion and the Spanish-American War. Those "Insular Cases" have a good deal of relevance to present-day "Small Wars" issues.

From the Paquete Habana syllabus:


Under the Act of Congress of March 3, 1891, c. 517, this Court has jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the amount in dispute and without any certificate of the district judge as to the importance of the particular case.

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

which makes a number of points:

1. The Federal courts were given jurisdiction in prize cases by statute (which was within their constitutional mandate).

2. The international law issues must be "be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination." This ties into point 1.

3. "Customary international law" comes into play only "where there is no treaty and no controlling executive or legislative act or judicial decision." In short, it is a last resort in arriving at a rule of decision in a case where the court has jurisdiction.

4. In making that determination, the court looks, "as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." Modern punditry is filled with "what the law ought to be".

The Paquete Court embarked on a multipage historical quest (starting in 1403) to determine what "customary international law" was concerning fishing vessels seized in prize cases. Nonetheless, three members of the Court differed and concluded that "customary international law" in this area was neither "customary" nor "authoritative":


In is needless to review the speculations and repetitions of the writers on international law. Ortolan, De Boeck, and others admit that the custom relied on as consecrating the immunity is not so general as to create an absolute international rule; Heffter, Calvo, and others are to the contrary. Their lucubrations may be persuasive, but not authoritative.

In my judgment, the rule is that exemption from the rigors of war is in the control of the Executive. He is bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether such immunity as may have been usually extended.
[Page 175 U. S. 721]
Exemptions may be designated in advance or granted according to circumstances, but carrying on war involves the infliction of the hardships of war, at least to the extent that the seizure or destruction of enemy's property on sea need not be specifically authorized in order to be accomplished.

The lesson to be learned is that incorporation of "customary international law" is best done by definitive joint executive and congressional action. In that, I join Judges Hogan and Brown.

Regards

Mike

[jmm99]

Abdulmutallab has been indicted on six counts (http://abcnews.go.com/images/Politics/abdulmutallab.pdf):

1) attempted use of a weapon of mass destruction;

2) attempted murder within an aircraft in the jurisdiction of the US;

3) willful attempt to destroy an aircraft within the jurisdiction of the US;

4) willfully placing a destructive device on an aircraft, which was likely to endanger safety of such aircraft;

5) possession of a firearm/destructive in furtherance of a crime of violence; and

6) possession of a firearm/ destructive in furtherance of a crime of violence.

No link to AQ or any other organization is alleged in the indictment.

[davidbfpo]

From the BBC an interview whilst commuting:
Matthew G Olsen heads the US task force deciding the fate of the remaining detainees at Guantanamo Bay.
While hopes of meeting President Barack Obama's January 2010 deadline for closing the camp have ended, Mr Olsen and other US officials have been meeting at secure locations to try to resolve the outstanding cases.

The link:http://news.bbc.co.uk/1/hi/world/americas/8454351.stm

Nothing startling, but all in one place.

[davidbfpo]

Post No.411 (Pg. 21) refers to FBI action in Detroit back in September '09, with a raid on a 'radical' mosque, with one local Muslim leader shot dead, with charges following which aroused - from this armchair - little interest.

Now a local paper has a lengthy article, under the headline 'Deadly FBI raid in Dearborn prompts concern over informants' and I cite in parts:
The story of Jabril's alleged infiltration offers a rare look into the use of FBI informants in Muslim-American communities in the aftermath of Sept. 11, 2001. Members of the Detroit mosque say they believe Jabril was a key undercover informant in helping the FBI build a case against Abdullah and his followers.

Muslim advocates say there's a growing problem of improper use of informants, particularly in houses of worship. Some accuse the informant of luring Abdullah to his death in the fatal shooting, which has raised questions about excessive force.

Abdullah and his followers were not charged with any acts of terrorism. The charges against the 11 men arrested include dealing in stolen goods such as laptops and fur coats, firearms violations and tampering with vehicle identification numbers. The criminal complaint, however, highlights the radical views of the group.

[davidbfpo]

A long story in The Guardian, with this opener:
For nearly six years, British resident Omar Deghayes was imprisoned in Guantánamo and subjected to such brutal torture that he lost the sight in one eye. But far from being broken, he fought back to retain his dignity and his sanity

Within is this:
The British also accused him of teaching people to fight in terrorist training camps in Chechnya, and claimed they had secret video evidence.

Deghayes had never been to Chechnya, and thought all these allegations laughable. Only later did he discover through Clive Stafford Smith, director of the human rights charity Reprieve, that his apparent appearance in an Islamic terrorist training video in Chechnya was the crucial evidence in a flimsy case against him. The authorities refused to give Stafford Smith, who campaigned for Guantánamo detainees, a copy of this videotape, but he eventually obtained one through the BBC.

It was, says the Reprieve director, an obvious case of mistaken identity: the person depicted lacked Deghayes' small childhood scar on his face. *Stafford Smith was able to show that the videotape was of a completely different person, actually a Chechnyan rebel called Abu Walid, who was dead.(My emphasis) "This was typical of the whole Guantánamo experience," says Stafford Smith. "They said they had evidence and they wouldn't let you see it. Then when you did, it was incorrect.

Link:http://www.guardian.co.uk/world/2010/jan/21/i-fought-to-survive-guantanamo

[jmm99]

The Detroit Free Press story (all in one full page) is here (http://www.freep.com/apps/pbcs.dll/article?AID=/20100117/NEWS05/1170511/1319/Deadly-FBI-raid-in-Dearborn-prompts-concern-over-informants&template=fullarticle).

Let's see what everyone says when the case is tried. Bet: they plea bargain out to the non-terrorist crimes. And, of course, since terrorism was not charged, none of them are terrorists. Right.

And, in the future, all FBI informants must announce: "I am an FBI informant looking for terrorists. Please direct me to the nearest terrorist. Oh, you don't know any terrorists. That's great. Now we can all go out and get a Stroh's. Whoops, I forgot; that alchohol - let's have Dr Peppers instead."

Mike

[davidbfpo]

I've been distracted and so slightly delayed appearance here:


The UK Supreme Court has ruled that special Treasury orders that freeze the assets of terror suspects are unlawful. The judges at the UK's highest court said the government had exceeded its powers by controlling the finances of five suspects.

From:http://news.bbc.co.uk/1/hi/uk/8482630.stm

From Scotland, which has a different legal system to England & Wales:
THE man dubbed Scotland's first Islamist terrorist had his conviction quashed yesterday after judges ruled he had suffered a miscarriage of justice.

From:http://www.scotsman.com/news/39First-Islamic-terrorist39-suffered-a.6028500.jp

An arrest:
A 30-year-old man has been arrested in Birmingham under the Terrorism Act, according to West Midlands police. The man, from Sparkhill, was arrested on suspicion of possessing material likely to be of use to a terrorist and of distributing terrorist publications.

From: http://news.bbc.co.uk/1/hi/uk/8480138.stm

And more time for police to question him:
Police have been given more time to question a man arrested in Birmingham on Tuesday under the Terrorism Act.

From:http://news.bbc.co.uk/1/hi/uk/8484598.stm

[davidbfpo]

The European court has ruled that the counter-terrorism stop & search powers for the police, referred to as S.44 TACT, are illegal and HMG is considering their reaction: http://news.bbc.co.uk/1/hi/uk/8454206.stm

The national CT police co-ordinator is cited in this article, notably on the use of 'profiling':
Britain’s most senior counter terrorism officer has disclosed that police must use profiling tactics to stop suspected terrorists.

From:http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/7104055/Heathrow-in-security-alert-as-two-men-arrested-on-flight.html

Read alongside a columnist piece 'You cannot stop the terrorist threat if you are unable to profile it': http://www.telegraph.co.uk/comment/columnists/charlesmoore/7104133/You-cannot-stop-the-terrorist-threat-if-you-are-unable-to-profile-it.html

[davidbfpo]

This time in Scotland, which has a different legal system to the rest of us; a complex case and an Appeal Court has quashed a conviction; web link:
http://news.bbc.co.uk/1/hi/scotland/tayside_and_central/8504952.stm


A man branded a "wannabe suicide bomber" by prosecutors will not face a retrial on terrorism charges....The most serious charge related to the possession of articles that gave rise to "reasonable suspicion" they were connected to terrorism. His conviction on that allegation resulted in a six-year prison term.

In a broader commentary:
The quashing of one of Mohammed Atif Siddique's terrorism convictions poses tough questions about Section 57 of the 2000 Terrorism Act - the offence of possessing "articles" for terrorist purposes. The offence emerged from the lessons of Northern Ireland where detectives sometimes caught paramilitaries with DIY bomb parts - but no actual bomb or plot. In the age of al-Qaeda inspired extremism, Section 57 has been used against suspects found with extremist material on their computers.

Two years ago the English Court of Appeal criticised the vague phraseology of the offence as it cleared five students in very similar circumstances to Mohammed Atif Siddique.

All these young men say they were criminalised for what they had thought, rather than what they did. And Edinburgh and London's appeal judges say juries need to be given clearer guidance on when the line between thoughts and deeds is crossed.

Alas HMG is not in the mood or mode to listen and respond. Other sections of the CT law are much criticised, partly for their wording and also for their impact on innocent parties.

[davidbfpo]

The Binyam Mohammed case has appeared here many times and today the Appeal Court has issued a judgement regarding the government's refusal to disclose US intelligence documents (in fact seven paragraphs):

BBC:http://news.bbc.co.uk/1/hi/uk/8507852.stm
Daily Telegraph:http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/7203741/Binyam-Mohamed-torture-allegations-must-be-disclosed-day-judges.html
FCO:http://www.fco.gov.uk/en/news/latest-news/?view=News&id=21722320

In the radio reports and on the FCO website reference has been made to a US court decision that led to the documents being disclosed - "so the pass had been sold". Secondly that the judgement upheld the principle of 'control' that the UK could not release intelligence documents provided by the USA.

The BBC:
BBC home affairs reporter Dominic Casciani said the seven-paragraph summary released by the court provides details of what London learnt about Mr Mohamed's treatment in 2002, following his detention in Pakistan. At the time he was being held by Pakistani interrogators at the behest of the US, who suspected him of having received firearms and explosives training from al-Qaeda in Afghanistan. The summary says that Mr Mohamed was intentionally subjected to continuous sleep deprivation during his initial period of captivity. Along with the sleep deprivation, it says the interrogators subjected him to threats and inducements, including playing on his fears that he would be passed on to another country.

Perhaps JMM can explain if "the pass was sold"?

There remains a UK police investigation into whether the intelligence officers involved were complicit with inhuman treatment / torture.

[jmm99]

although, since there were no bidders over here, the "pass" wasn't sold, but more put up as a free-will offering. ;)

The US case is 12/16/2009 2005cv1347-253 (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1347-253) Civil Action No. 2005-1347 (MOHAMMED et al v. BUSH et al) Doc No. 253 (order) by Judge Gladys Kessler (81 page opinion), which I reported back in December in this post, DC Habeas Cases - Update (http://council.smallwarsjournal.com/showpost.php?p=89403&postcount=450).

The bottom line is that Judge Kessler ordered the release of Farhi Saeed Bin Mohammed. The government's major evidence against that Mohammed was his presence at an AQ training camp, established by statements from Binyam Mohamed. The opinion devotes many pages to those statements (pp. 40-70), which are probably the longest judicial findings of facts re: Binyam Mohamed so far filed. The Binyam Mohamed evidence was excluded based on the Fruit of the Poisonous Tree doctrine.

A summary of the torture allegations is at pp.48-57. The details are included in several joint exhibits, which are part of the case file. Note (at p.57):


The Government does not challenge or deny the accuracy of Binyam Mohamed's story of brutal treatment.

As example of same (pp.52-53):


After this exchange, Marwan had Binyam Mohamed tied to a wall. Three men stripped him of his clothes with "some kind of doctor's scalpel." The witness claims he feared rape, electrocution, or castration. rd. at 12. His captors cut one side of his chest with the scalpel, and then the other. One of the men then "took [Binyam Mohamed's] penis in his hand and began to make cuts" with the scalpel as Marwan looked on. Id. at 13. They cut "allover [his] private parts" while Binyam Mohamed screamed. He estimates that they cut him 20-30 times over two hours; "[t]here was blood all over." Id. He was given a cream from some doctors. This precise conduct continued about once per month for the 18 months that he was in Morocco. ~ at 12-13; 16 (describing "routine" cuttings and use of liquids to burn him). He reports that a guard told him that the purpose of the scalpel treatment was to "degrade" him, so that when he left, he'd "have these scars and [he'd] never forget. So [he'd] always fear doing anything but what the US wants." Id. at 13.

Overall, there seems to have been little Brit involvement in the rough stuff (based on Judge Kessler's 40 pages).

Regards

Mike

[davidbfpo]

The Appeal Court judgement in the Binyam Mohammed case has taken both expected and unexpected routes. Criticism of the judges for taking decisions on policy that should be the executive's or Crown; the impact on the much prized UK-US 'Special Relationship' in the intelligence sharing arena and the revelation that the senior Crown lawyer wrote a letter challenged parts of the draft, written judgement as being too critical of the Security Service (MI5).

The Guardian (the most extensive report): http://www.guardian.co.uk/world/2010/feb/10/law-binyam-mohamed-case
BBC:http://news.bbc.co.uk/1/hi/uk/8509787.stm
DT:http://www.telegraph.co.uk/news/worldnews/northamerica/usa/7211021/Binyam-Mohamed-release-of-secrets-will-harm-relations-with-Britain-warns-US.html

Whatever the "smoke" generated, notably by the Foreign Secretary in his parliamentary statement yesterday, the case has been over the release in the UK to a court seven, short paragraphs summarising Binyam Mohammed's treatment written by the CIA for MI5 use before they interrogated Binyam at G-Bay were pre-empted as JMM reports in the release of pages of evidence in a US court case.

Some here will be happy to exclude the courts from a role in such cases, others will use the case as an opportunity to "beat" the government, especially over the alleged official complicity in torture; meantime others will challenge whether 'trust & confidence' in the security services, government and UK society has been weakened by all the revelations.

[jmm99]

The "seven paragraphs" (see below) seem more a summary by the judges of a series of reports, with editorial comments by the judges (esp. the last two paragraphs).

From the Telegraph (http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/7204293/Binyam-Mohamed-the-secret-torture-file.html):


Here are the seven paragraphs from the High Court judgments in full:

- It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer.

- It was reported that at some stage during that further interview process by the United States authorities, BM (Binyam Mohamed) had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

-It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and ''disappearing'' were played upon.

-It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews.

- It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.

- We regret to have to conclude that the reports provided to the SyS (security services) made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

-The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities.

The controversy certainly does not lie in the content - compare Judge Kessler's findings of fact (post # 471).

The controversy hinges on the fact that the underlying report(s) from USG to the Brits was classified and still remains so. Apparently, the British judicial system (at least in this type of case) has no process to protect classified evidence.

Rather than releasing Binyam, he ought to have been tried before the military commission which was in the process of doing just that (1 Sep 2008). But, because that case looked "messy", the decision was made to release the man. Much of the evidence re: Binyam was open-source at that time - see Binyam Mohamed (http://council.smallwarsjournal.com/showpost.php?p=55748&postcount=83) (1 Sep 2008).

Regards

Mike

[davidbfpo]

The Kings of War blogsite weighs in: http://kingsofwar.org.uk/2010/02/ooops-%E2%80%93-the-problems-of-getting-caught-red-handed/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed:+KingsOfWar+(Kings+of+War)

JMM,

Yes, I understand the 'seven paragraphs' to be written by officials, not judges, as a summary of the secret papers and the papers themselves remained secret. Why HMG went 'all the way' to stop the summary eludes me.

[davidbfpo]

This appeared yesterday in The Daily Telegraph, but was not linked last night: 'Jonathan Evans: conspiracy theories aid Britain's enemies MI5 was not involved in any torture 'cover-up’, says its director general, Jonathan Evans:http://Jonathan Evans: conspiracy theories aid Britain's enemies MI5 was not involved in any torture 'cover-up’, says its director general, Jonathan Evans. (http://Jonathan Evans: conspiracy theories aid Britain's enemies MI5 was not involved in any torture 'cover-up’, says its director general, Jonathan Evans .)

Worth reading IMHO and how the public reacts is unclear. Torture is an issue that has a habit of lingering on and causing concern - not I agree on a mass basis or 'the man on the Clapham omnibus' being greatly concerned.

JMM,

Note Jonathan Evans says:
...the paragraphs were received on intelligence channels and provided on the basis that they would not be disclosed...

[jmm99]

to The Daily Telegraph and Jonathan Evans, Jonathan Evans: conspiracy theories aid Britain's enemies (http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/7217438/Jonathan-Evans-conspiracy-theories-aid-Britains-enemies.html).

And, indeed, Evans says this:


The “seven paragraphs” now published are, in fact, less politically explosive than some commentators had imagined. The Government would not have objected to their publication in themselves, despite the unacceptable actions they describe. But the appeal was necessary because the paragraphs were received on intelligence channels and provided on the basis that they would not be disclosed.

The United States does not have to share intelligence with us. Nor do other countries. The US government has expressed its deep disappointment at the publication of the paragraphs and has said that the judgment will be factored into its decision-making in future. We must hope, for our safety and security, that this does not make it less ready to share intelligence with us.

In our (US) jargon, the seven paragraphs were classified and had to be treated as all classified information is treated.

What that means in the context of US legal actions is very clear (as any number of the DC habeas cases establish in their divisions between the classified and non-classified case records, and their public and sealed opinions). A party generally has a right to discover the relevant evidence (inculpatory and exculpatory) in the government's possession.

In the case of classified information, that requirement is satisfied by allowing view of the evidence (subject to various safeguards) to the party's attorney who has the necessary security clearence to view the evidence. That requirement does not mean that the evidence can be made public - and published in The Times or in a public judicial opinion.

So, the problem with the UK process, so far as the US was concerned, was public disclosure of classified information. Since the substance of that classified information already was open-source, one can question whether the seven paragraphs ought to have remained classified. Something of a tail wagging the dog situation.

Regards

Mike

[davidbfpo]

A very long (on a screen) academic paperhttp://www6.lexisnexis.com/publisher/EndUser?Action=UserDisplayFullDocument&orgId=574&topicId=100046854&docId=l:1115193366&isRss=true

This is the Abstract:
This article explores the symbiotic relationship between organizedcrime and terrorist organizations including when there is evidence that such relationships have become indistinguishable. The authors examine the symbiotic relationships detected within the United States ofAmerica and other areas of the world. They focus on cigarette diversion, narcotics, and illegal immigrant smuggling. Specific groups suchas Hezbollah, the Irish Republican Army, and other crime-terror organizations are used to illustrate these. This article outlines tools that can be used to identify crime-terror overlaps. Recommendations derived from the importance of using multi-agency working groups coupled with the emerging importance of forensic examiners in the fight against the crime-terror nexus are offered.

It features:
Drawing on a military intelligence method called Intelligence Preparation of the Battlefield (IPB), the proposed method, Preparation of the Investigation Environment (PIE), allows investigators to identify the areas where terrorism and organized crime aremost likely to interact.

On my first read useful, but 'skates" over detailing PIE.

[davidbfpo]

I have seen this report before, but it took time to trace and even if nine years old is still relevant IMHO.


An FBI team sent to Kabul in 2001 to fingerprint all arrested insurgents made a surprising discovery: hundreds of arrested people in Afghanistan who were supposed to be local fighters (1% of the total) were already in the FBI's database for arrests ... in the US. Many arrests were for drunken driving, passing bad checks and traffic violations. That means that there were probably a far higher percentage of arrested ‘insurgents’ who went through the US without being arrested, and that the already arrested guys had ‘normal’ delinquency, not related to Islam.

From:Ellen Nakashima, “Post-9/11 Dragnet Turns Up Surprises: Biometrics Link Foreign Detainees to Arrests in U.S.”, Washington Post, 6 July 2008.http://www.washingtonpost.com/wp-dyn/content/article/2008/07/05/AR2008070501831.html

I've not seen similar reports on other nations discovering and proving this, so if anyone knows of similar please let me know.

[Boondoggle]

The recent court decision in Britain also brings up an issue much closer to home. When the US shares information, not classified, with state and local law enforcement, it loses its protection under the FOIA and falls under the state "sunshine laws" of the particular jurisdiction. With much more aggresive use of those laws, it most definitely will affect the way the federal government can share information with state and locals. You can classify things if necessary, but that closes off a large group of people from access to the information and for those who need to see it, may make access expense, and time consuming in acquiring the necessary clearances.

[davidbfpo]

Boondongle,

In the UK the product of the Security Service (MI5) and other official bodies in CT plus other areas comes with a notice saying ownership remains with the originator, disclosure other than to those specified needs to be referred back to the originator. IIRC MI5 is specifically exempt from FOI too. To date this appears to have worked.

Another body involved in policing (and CT) the Association of Chief Police Officers (ACPO) has somehow gained a specific exemption from FOI laws; a notice to that effect etc is all their documents. The ACPO statement is a little odd as it is a registered private company, although funded largely by public money.

A distinction needs to be made between 'information', 'intelligence' and any assessment or conclusions reached. IMHO it is the later which gets more protection, for many reasons including CYA.

[jmm99]

"material support" for terrorist case, Humanitarian Law Project cases (http://www.scotusblog.com/2010/02/analysis-anti-terrorism-case-not-an-easy-one/#more-16584).


Analysis: Anti-terrorism case not an easy one
Humanitarian Law Project cases; Argument recap
Lyle Denniston | Tuesday, February 23rd, 2010 11:33 am

Analysis

With a federal government lawyer pushing for a sweeping interpretation of the government’s most-used anti-terrorism law, the Supreme Court on Tuesday at times seemed tempted to conclude that, perhaps, the law may go too far. Although some of the Justices made it clear they were sympathetic to Congress’ attempts to stop aid to international terrorist groups, a somewhat surprising skepticism set in as the 62-minute argument in the Humanitarian Law Project cases unfolded. Near the end, Chief Justice John G. Roberts, Jr., suggested that the “material support” law may need another airing in lower courts, with that statute perhaps having to clear a higher constitutional hurdle — an option that could make it unnecessary for the Court to decide now what swing-vote Justice Anthony M. Kennedy called “a difficult” case. .... (much more at SCOTUSblog)

I don't do tea leaf analysis based on oral arguments, but a fair bet is that the Supreme Court will not issue a unanimous opinion in a few months. :)

Regards

Mike

[davidbfpo]

Hat tip to Leah Farrell's blog:http://allthingsct.wordpress.com and taken from Australia's new Counter-Terrorism White Paper: Securing Australia – Protecting our Community http://www.dpmc.gov.au/publications/counter_terrorism/index.cfm


3.2.4 A lawful, proportionate and accountable response

To be effective, Australia must pursue a principled and proportionate response that promotes and upholds the values we seek to protect. The Government does not support the use of torture or other unlawful methods in response to terrorism. Terrorism is a crime and the Government will pursue terrorists within proper legal frameworks and in accordance with the rule of law. A response based on our democratic values and universal human rights serves to undermine the narrative of terrorist groups that seek to portray our actions, and those of our allies, as oppressive. In recognition of the importance of our counter‑terrorism and security legislation, the Government has introduced legislation to establish an Independent National Security Legislation Monitor to regularly and independently review the operation of Australia’s counter‑terrorism laws.

Leah's comment says:
this makes me very proud of my country’s counter terrorism efforts.

[davidbfpo]

An unintended contrast from the UK, under the sub-title 'MI5 and MI6 will not be investigated over allegations they were complicit in the torture of terror suspects abroad, the Attorney General has decided' and a little more on the link:http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/7301451/MI5-and-MI6-not-to-be-investigated-over-torture-claims.html

[davidbfpo]

The comments by one Appeal Court judge in the Binyam Mohammed case, regarding the role of the Security Service, popularly known as MI5, have been published and a "small storm" has ensued within Westminster-Whitehall.

http://www.telegraph.co.uk/news/uknews/7323707/Security-service-officers-have-dubious-record-on-torture-judge-says.html

Plushttp://news.bbc.co.uk/1/hi/uk/8538410.stm

From the BBC:
British security services denied knowledge of any ill-treatment of US detainees. But in a key paragraph of his ruling, published on Friday, Lord Neuberger said: "In this case, that does not seem to have been true. Some security services officials appear to have a dubious record relating to actual involvement - and frankness about any such involvement - with the mistreatment of Mr Mohamed when he was held at the behest of US officials."

[jmm99]

The Court had scheduled oral arguments in the Kiyemba (Uighur) case for 23 Mar. In a brief order, analysed at Kiyemba back to lower court (http://www.scotusblog.com/2010/03/kiyemba-back-to-lower-court/), the Court without dissent set aside the DC Circuit Court's decision (without holding whether that decision was right or wrong on the merits) and remanded for further hearings. Analysis by Lyle:


Kiyemba back to lower court
Lyle Denniston | Monday, March 1st, 2010 10:04 am

UPDATE: The Kiyemba case discussed below had been scheduled for oral argument on March 23. The Court has now released a revised March oral argument calendar omitting that case.

The Supreme Court on Monday ordered the D.C. Circuit Court to take a new look at the case testing federal judges’ powers to order Guantanamo Bay detainees released from custody — a case the Justices had granted and were to hear later this month. In a brief order, without noted dissent, the Court said the Circuit Court was to decide “what further proceedings in that court or in the District Court are necessary and appropriate for the full and final disposition of the case in light of…new developments.” The case is Kiyemba, et al., v. Obama, et al. (08-1234). The “new developments” are offers to resettle the seven Chinese Muslim Uighurs remaining at Guantanamo.

The Justices’ action has two immediate effects:

first, it wipes out the Circuit Court’s earlier ruling that federal judges have no power to order release into the U.S., even temporarily, because that is an immigration matter exclusively for the President and Congress, and,

second, it means that the Justices will not have any final ruling this Term on detainee matters, putting the Court on the sidelines while the two other branches of government work out where to go next on policy involving capture and detention of individuals during the government’s “war on terror.”

President Obama wants to close Guantanamo, but there are efforts in Congress to keep it open in order to assure that no detainee reaches the U.S. shores, even for further detention. There are also efforts on Capitol Hill to block any criminal trial in the U.S. of a Guantanamo prisoner, including those who have been charged with the 9/11 terrorist attacks.

A third effect of Monday’s order very likely will be that the Court may not act this Term on a second Kiyemba case (same title, docket 09-581) that offered another opportunity to explore the courts’ authority to deal with Guantanamo captives’ fate. That case involves some of the same individuals who appealed in the case the Court agreed to hear in October. (The granted case is now informally known as “Kiyemba I.” The case in 09-581 is thus known as “Kiyemba II.”)

Both cases were sequels to the Supreme Court’s ruling in Boumediene v. Bush in June 2008, establishing a constitutional right for Guantanamo prisoners to challenge their continued detention. The new appeals thus were attempts to test whether, in implementing Boumediene, federal judges had any authority to require the actual release of a detainee even in situations where the government no longer had any basis for confining them. The government no longer considers any of the Uighurs to be enemies of the U.S., but takes the position that their movement out of Guantanamo is solely within the diplomatic power of the U.S. government to arrange for their resettlement elsewhere. .... (more in article)

So, whatever action we see on Gitmo in 2010 will not come from the Supreme Court. A number of DC habeas cases are on appeal in the DC Circuit.

[Boondoggle]

Okay, Adam Ghadan will probably make his way into our hands shortly. What next?

Article III? Tribunal?

How long do we interrogate him and hold off on legal proceedings? Based on some of Bin Laden's statements which had a domestic tint, wouldn't be impossible that they were having some sort of long distance communication.

More important a case for our security than KSM IMO, since KSM's been off the street for so long now. Also given that it seems like he's in Pakistani hands, I wonder if that was planned or not since they don't have to follow the Army Field Manual. Regardless, I'm sure he'll scream about his interrogation when he finally surfaces. An interesting week sure to follow.

[jmm99]

nice to see you out from the boonies. :)

As it presently stands, Adam Gadahn (http://en.wikipedia.org/wiki/Adam_Yahiye_Gadahn) is already under indictment for treason (US Dist. Ct., Central District of California), FBI Most Wanted Poster (http://www.fbi.gov/wanted/terrorists/gadahn_a.htm). So, that court would have first nibs if the goat herding boy is extradited.

All that posits that he has been captured. The FBI hadn't confirmed it up to about an hour ago, FBI Says U.S. Hasn’t Confirmed Arrest of Adam Gadahn (Update2) (http://www.bloomberg.com/apps/news?pid=20601091&sid=arKFmf9YsuJM).

Since no one (including the Obama administration) knows what the Obama administration will do with our present detainees, I don't suppose the Obama administration is that eager to take on another challenge in this area.

Best

Mike

PS: NYT is already back-tracking on the story (http://www.nytimes.com/2010/03/08/world/asia/08qaeda.html?src=twt&twt=nytimes) - different American:


American and Pakistani officials said the man arrested was Abu Yahya Mujahdeen Al-Adam, who was described as having been born in Pennsylvania and who was thought to be affiliated with the operations division of Al Qaeda, commanding fighters in Afghanistan.

Little else was known about him, American officials said, and it was not immediately clear that American officials were involved in the arrest.

Initial reports seemed to have confused the American with Adam Gadahn, a California native who has been a spokesman for Al Qaeda and often appears on videos calling for strikes against targets in the United States.

[davidbfpo]

The "Did we know others used torture" question around Binyam Mohammed has always had a wider impact and earlier this week a former Director-General of the Security Service (often called MI5) made a comment: http://www.guardian.co.uk/uk/2010/mar/10/manningham-buller-torture

This has led to a deconstruction of her speech, here is one example: http://www.guardian.co.uk/uk/2010/mar/10/mi5-mi6-torture-intelligence-timeline

The government has refrained from a direct response, probably hoping all will be lost in the steadily increasing pace of pre-General Election hype.

[jmm99]

pending US proceedings according to FP's weekly LWOT brief (http://www.foreignpolicy.com/articles/2010/03/11/the_lwot_jihad_jane_arrested_no_911_trial_decision _forthcoming):


Decision on 9/11 trials gets pushed down the road

On March 5, the White House said there will be no decision (http://www.nytimes.com/2010/03/06/us/06trial.html) in the coming weeks on whether to try the alleged 9/11 plotters in civilian or military court. The Wall Street Journal reports (http://online.wsj.com/article/SB10001424052748703915204575103703790191316.html) that President Barack Obama is leaning toward military commissions, seeming to indicate a diminishment in Attorney General Eric Holder's influence in the White House.

Some national security experts (including former officials from George W. Bush's administration) came out in support of keeping both options open (http://www.nytimes.com/2010/03/09/us/politics/09terror.html?hp). And the top U.N. official for human rights urged (http://www.reuters.com/article/idUSTRE6283I420100309) the Obama administration to prosecute the purported 9/11 planners in civilian court. ....

Since both SCOTUS (as reported in a prior post) and the WH have put matters on the shelf for the time being, what of Congress ?

From FP:


In the meantime, Democrats continue to negotiate (http://www.washingtonpost.com/wp-dyn/content/article/2010/03/07/AR2010030703337.html) with Sen. Lindsey Graham (R-S.C.), who wants to exchange closing the Guantánamo Bay prison (a Democratic priority) for trying the alleged 9/11 plotters before military commissions (a Republican one). Still, it is unclear (http://washingtonindependent.com/78584/gopers-say-they-wont-take-grahams-gtmo-for-ksm-deal) whether Graham has the GOP support to seal his end of the potential deal.

The Washington Independent's Spencer Ackerman reports that Graham has also put forward a proposal allowing for the indefinite detention (http://washingtonindependent.com/78712/graham-moves-forward-with-indefinite-detention-proposal) of terrorist suspects. Ackerman has a must-read on the differences between civilian and military courts on the handling of classified information. In short, there aren't any (http://washingtonindependent.com/78925/urban-myth-behind-grahams-support-for-911-military-trials).

Both of Ackerman's articles are worth discussion in this thread:


Graham Moves Forward With Indefinite Detention Proposal
By Spencer Ackerman 3/9/10 10:47 AM

Two weeks ago, Sen. Lindsey Graham (R-SC), in the midst of negotiations with the White House over trading a military tribunal for 9/11 conspirator Khalid Shaikh Mohammed for the closure of the Guantanamo Bay detention facility, floated a new proposal: “a new national security court” (http://washingtonindependent.com/77402/graham-holds-gtmo-closure-hostage-calls-it-bipartisanship) for terrorism detainees. Graham didn’t appear to press the point in interviews since. But his spokesman, Kevin Bishop, said Graham is busy drawing up a proposal for how such a system would work, and gave some detail about its scope. As it happens, this is less a national-security court than it is an indefinite detention system. “There has to be some type of statute– and he’s been clear on that — for indefinite detention,” Bishop said.

Primarily, the system Graham is designing is set up for handling the Obama administration’s so-called “Fifth Category” of detainees that a Justice Department task force recommended against charging and releasing. “What do you do with them? What type of system do you have to hold them indefinitely?” Bishop said. “What type of system do you establish where we can ensure that we’re looking back at their cases; that we are holding them; we still determine that they are enemy combatants; they’re too dangerous to release; but we also aren’t going to try them in either a military or a civilian court. So there has to be a system for that, and that’s why Senator Graham is looking for a legal framework.” ...

and also:


‘Urban Myth’ Behind Graham’s Support for 9/11 Military Trials
Classified Information Is Handled the Same in Military and Civilian Venues
By Spencer Ackerman 3/11/10 6:00 AM

Lindsey Graham is on the verge of winning an argument. Graham, the Republican senator from South Carolina, has pledged for weeks to deliver the votes from his fellow Republicans to finally close the detention facility at Guantanamo Bay, a campaign pledge from President Obama, if and only if Obama agrees try Khalid Shaikh Mohammed and the other 9/11 conspirators in a military commission. On Friday, the White House said it was “weeks away” from any decision about whether to scrap a civilian trial for the man known as KSM — which could give Graham what he wants.

There’s just one problem. Graham’s rationale for why KSM needs to be tried in a military commission and not a civilian court has to do with the procedures in the commissions for protecting classified information. But the revisions to the military commissions approved by Congress last year — with significant input from Graham himself — removed any significant difference between how classified information is handled in military and civilian venues. Accordingly, Chris Anders, a lobbyist for the American Civil Liberties Union, said Graham’s position was founded on “one big urban myth” — though whether that will affect Obama’s political calculation over the trial remains to be seen.

Of course, if you have detention for the duration of the conflict (under a due process standard - not necessarily full Bill of Rights), the need for either civilian or military criminal prosecutions fades.

Some things to consider while the UK indulges in "judicial anarchy":


Judicial anarchy in the U.K.

The former head of MI5, Eliza Manningham-Buller, told the British Parliament that until her retirement in 2007, the United States deliberately concealed information about harsh interrogations at Guantánamo Bay from the British government. She also said Britain did not know that the United States tortured detainees -- an assertion The Guardian and others refuted.

- the quote is from FP LWOT (http://www.foreignpolicy.com/articles/2010/03/11/the_lwot_jihad_jane_arrested_no_911_trial_decision _forthcoming) - and not from JMM. :D

[jmm99]

An interesting proposal from the WP, The best trial option for KSM: Nothing (http://www.washingtonpost.com/wp-dyn/content/article/2010/03/17/AR2010031702844_pf.html).


By Benjamin Wittes and Jack L. Goldsmith
Friday, March 19, 2010; A23

The Obama administration and its critics are locked in a standoff over whether to try Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators in a military commission or in federal court. Both sides are busily ignoring the obvious solution: Don't bother trying them at all.

Mohammed has already spent more than seven years in military detention. Both the Obama administration and the Republicans who object to trying him in federal court accept the legitimacy of such detention as a traditional incident of war for those in the command structure of al-Qaeda, and perhaps for associated forces as well. In general outline, so do the courts. Given these facts, the politically draining fight about civilian vs. military trials is not worth the costs. It also distracts from more important questions in the legal war against terrorism. ... (more in article)

Comments?

Mike

[davidbfpo]

JMM,

In the GWOT and other parts of the campaign against AQ much has been made of their activity being criminal. This option, criminalisation, is a standard option in CT and COIN; yes, it is hard.

Is there an expectation of due process for those detained? Not only within the USA, but within the Muslim community? As a Swiss diplomat commented recently
'It is not what you say, it is what they understand'.

We do seem to have been "hoisted by our own petard".

Imagery aside, what are the substantive arguments over having a trial now for the 9/11 planners? My own preference would be for a civil court, using military tribunals - which I suspect would not be open - would be bad for imagery and impact beyond the court room.

I wonder is there any polling on the issues, outside the USA?

So much of post-9/11 effort has been 'intelligence-led' and not 'prosecution-led'. How big a penalty have we paid for this?

[Boondoggle]

An interesting proposal from the WP, The best trial option for KSM: Nothing (http://www.washingtonpost.com/wp-dyn/content/article/2010/03/17/AR2010031702844_pf.html).



Comments?

Mike

Weeding out those who get picked up in the future, and an overzealous US government uses this as precedent to hold those either no longer party to a conflict or dangerous to our national security, or who somehow made it this far in the system but were never the threat they were alleged to be. Using future hypotheticals to deny the use of pragmatic and even necessary action to fight current conflicts has always struck me as bad practice... or as an opportunity for lawyers to "prove their worth" :D but in this case there has to be some sort of check and balance that allows at least some outside the system review. Maybe that doesn't require any sort of trial, but because of the stakes at hand, potential detention for life without access to the US court system, there needs to be something. Maybe that doesn't require resort to a trial, but there needs to be something.

As to David, I'd disagree, I'd much rather be "intel" led than "prosecution" led. As I had the opportunity to speak a bit with Mr. Wittes a few weeks ago, we can't turn back the clock. But what we can do is roll them up from doing bad stuff again and stop further attacks. IMO, that is more important in the long run to our national security than "accountability", "judgment" or "punishment". To the extent that intel and prosecutorial interests clash, I for one would favor intel for those reasons.

[jmm99]

While both "intelligence-led" and "prosecution-led" are valid factors in considering the value of detention, my own preference for the leading factor is "security led". Quite simply: are we more secure if the person is detained rather than allowing him to be roaming about ?

This recently-breaking habeas decision involving detainee Mohamedou Ould Slahi (Wiki) (http://en.wikipedia.org/wiki/Mohamedou_Ould_Slahi) - reported in the WSJ (also on Fox and other outlets) should blow the lid off the entire detention process and require a re-assessment of why we detain and how we detain.

From today's WSJ (via Fox (http://www.foxnews.com/story/0,2933,589769,00.html)):


Judge Orders Release of Gitmo Detainee With Ties to 9/11 Attacks
Monday, March 22, 2010

WASHINGTON — A suspected Al Qaeda organizer once called "the highest value detainee" at Guantanamo Bay was ordered released by a federal judge in an order issued Monday.

Mohamedou Ould Slahi was accused in the 9/11 Commission report of helping recruit Mohammed Atta and other members of the Al Qaeda cell in Hamburg, Germany, that took part in the Sept. 11, 2001, terrorist attacks.

Military prosecutors suspected Slahi of links to other Al Qaeda operations, and considered seeking the death penalty against him while preparing possible charges in 2003 and 2004.

U.S. District Judge James Robertson granted Slahi's petition for habeas corpus, effectively finding the government lacked legal grounds to hold him. The order was classified, although the court said it planned to release a redacted public version in the coming weeks.

Robertson held four days of closed hearings in the Slahi case last year.

The habeas decision apparently accorded with an earlier decision concerning military commission trial of Slahi:


Brig. Gen. John Furlow, who helped lead a Pentagon-ordered investigation into detainee abuse at Guantanamo Bay, has testified that Slahi was "the highest value detainee" at the offshore prison and "the key orchestrator of the Al Qaeda cell in Europe."

Plans to try him by military commission were derailed after prosecutors learned that Slahi had been subjected to a "special interrogation plan" involving weeks of physical and mental torment, including a death threat and a threat to bring Slahi's mother to Guantanamo Bay where she could be gang-raped, officials said.

Although the treatment apparently induced Slahi's compliance, the military prosecutor, Marine Lt. Col. V. Stuart Couch, determined that it constituted torture and evidence it produced could not lawfully be used against Mr. Slahi.

Full analysis of this case will have to await publication of the redacted classified opinion.

[jmm99]

The Wash Post has an update on Slahi (post above), which suggests there is a lot more to this story - Slahi and another AQ member, Tariq al-Sawah, are among the most informing of the Gitmo detainees.

From the WP, For two detainees who told what they knew, Guantanamo becomes a gilded cage (http://www.washingtonpost.com/wp-dyn/content/article/2010/03/24/AR2010032403135_pf.html):


By Peter Finn
Washington Post Staff Writer
Wednesday, March 24, 2010; 10:59 PM

By the time Tariq al-Sawah, a veteran of the wars in Bosnia and Afghanistan, reached Guantanamo Bay, Cuba, in May 2002, there was no fight left in him. Injured by a cluster bomb in the mountains of Afghanistan, the middle-aged Egyptian was still recovering from wounds to his hands, back, thighs and buttocks when the Americans grabbed him.

Three months later, Mohamedou Ould Slahi, who had moved in radical circles in Germany, turned up at the U.S. military prison. There, a masked interrogator threatened the Mauritanian with death while others deprived him of sleep and bombarded him with sound and light, pushing him to the brink of a mental breakdown.

When it came to their initial treatment at Guantanamo, Sawah and Slahi had little in common, according to military officials. Their paths would intersect only later, when they both made the same choice: to cooperate with the United States.

Sawah, now 52, and Slahi, now 39, have become two of the most significant informants ever to be held at Guantanamo. Today, they are housed in a little fenced-in compound at the military prison, where they live a life of relative privilege -- gardening, writing and painting -- separated from other detainees in a cocoon designed to reward and protect.

But as the Obama administration attempts to close the prison, Sawah and Slahi are trapped in a gilded cage. Their old jihadi comrades want them dead, revenge for the apostasy, now well known, of working with the United States. The U.S. government has rewarded them for their cooperation but has refused to countenance their release.

Some military officials believe the United States should let them go -- and put them into a witness protection program, in conjunction with allies, in a bid to cultivate more informants. (much more in article)

If half of what the WP says is true, these two are security risks to AQ. :rolleyes:

Regards

Mike

PS: Two articles re: what appears to be initiation of a serious proposal from some legislators to the White House, looking at a comprehensive schema for handling detainees in the future - WP,
Graham proposes framework for handling terrorism suspects (http://www.washingtonpost.com/wp-dyn/content/article/2010/03/22/AR2010032203441.html); and William Fisher, Lindsey Graham’s Grand Bargain (http://billfisher.blogspot.com/2010/03/lindsey-grahams-grand-bargain.html).

Boondoggle's Mr. Wittes appears in both articles.

[jmm99]

Obama Team Is Divided on Anti-Terror Tactics (http://www.nytimes.com/2010/03/29/us/politics/29force.html?hp) (NYT):


Legal Memo
Obama Team Is Divided on Anti-Terror Tactics
By CHARLIE SAVAGE
Published: March 28, 2010

WASHINGTON — Senior lawyers in the Obama administration are deeply divided over some of the counterterrorism powers they inherited from former President George W. Bush, according to interviews and a review of legal briefs.

The rift has been most pronounced between top lawyers in the State Department and the Pentagon, though it has also involved conflicts among career Justice Department lawyers and political appointees throughout the national security agencies.

The discussions, which shaped classified court briefs filed this month, have centered on how broadly to define the types of terrorism suspects who may be detained without trials as wartime prisoners. The outcome of the yearlong debate could reverberate through national security policies, ranging from the number of people the United States ultimately detains to decisions about who may be lawfully selected for killing using drones.

“Beyond the technical legal issues, this debate is about the fundamental question of whom we are at war with,” said Noah Feldman, a Harvard law professor who specializes in war-power issues. “The two problems most plaguing Obama in the war on terrorism are trials for terrorists and taking the fight beyond Afghanistan to places like Pakistan and Yemen. This issue of whom we are at war with defines both of them.”
....
The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters.

That view was amplified after Harold Koh, a former human-rights official and Yale Law School dean who had been a leading critic of the Bush administration’s detainee policies, became the State Department’s top lawyer in late June. Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case [*; see PS].

Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war — now or in the future.

In September 2009, national-security officials from across the government packed into the Office of Legal Counsel’s conference room on the fifth floor of the Justice Department, lining the walls, to watch Mr. Koh and Mr. Johnson debate around a long table. It was up to Mr. Barron, who sat at the head of the table, to decide who was right.

But he did not. Instead, days later, he circulated a preliminary draft memorandum stating that while the Office of Legal Counsel had found no precedents justifying the detention of mere supporters of Al Qaeda who were picked up far away from enemy forces, it was not prepared to state any definitive conclusion. ..... (much more in NYT article)

And so it apparently will go - no definititive conclusion defining and distinguishing the enemy we are to confront.

PS: Wiki for Belkacem Bensayah (http://en.wikipedia.org/wiki/Bensayah_Belkacem).

[jmm99]

Since the Dec 2009 Update (http://council.smallwarsjournal.com/showpost.php?p=89403&postcount=450) (focused on the Farhi Saeed Bin Mohammed case), only 4 merits decisions have been entered to date.

Saeed Mohammed Saleh Hatim (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1429-337) (Judge Ricardo Urbina) - granting his habeas petition based on the following reasoning:


The government's allegations rest almost entirely upon admissions made by the petitioner himself - admissions that the petitioner contends he made only because he had previously been tortured while in U.S. custody. Significantly, the government does not contest the petitioner's claims of torture; rather, it argues that the court should credit the petitioner's statements notwithstanding those claims. The government's justification for detention also rests heavily on a third-party identification by a GTMO detainee whose reliability has been seriously called into question by the court as well as by GTMO intelligence officers.

Upon consideration of the record, the parties' extensive submissions and the arguments presented during the merits hearing, the court concludes that the government has failed to persuade the court that the petitioner's detention is lawful. Accordingly, the court grants the petition for writ of habeas corpus.

Here, the uncontested torture claims had definite impact.

Musa'ab Omar Al Madhwani (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1194-696) (Judge Thomas F. Hogan) - denying habeas, although questioning whether Madhwani was a current secuirty threat:


It also is telling that al-Qaida considered Petitioner to be a member. AI-Qaida admitted him to their training camp and trained him to use firearms. AI-Qaida allowed him to be in the presence of bin Laden, twice. AI-Qaida assigned him to the charge of two al-Qaida instructors when the training camp closed. AI-Qaida fed, sheltered, and protected him. AI-Qaida sent him to live in an apartment in Karachi frequented by al-Qaida members. The only logical explanation as to why al-Qaida did all of this for Petitioner is that they considered him a member. Petitioner must have taken some affirmative action to earn that trust and assistance from such a clandestine organization. Accordingly, the Government has proved by a preponderance of the evidence that Petitioner was "part of' al-Qaida.

Though there is sufficient evidence in the record to prove Petitioner was a "part of' al-Qaida, the Court is not convinced that it is more likely than not that Petitioner is a threat to the security of the United States. As a young, unemployed, undereducated Yemeni, Petitioner was particularly vulnerable to the demagoguery of religious fanatics. The record reflects that Petitioner was, at best, a low-level al-Qaida figure. It does not appear he even finished his weapons training. There is no evidence that he fired a weapon in battle or was on the front lines. There is also no evidence that he planned, participated in, or knew of any terrorist plots. Classified documents in the record confirm the Court's assessment. As does the fact that he appears to have been a model prisoner during his seven years of detention. The Court fails to see how, based on the record, Petitioner poses any greater threat than the dozens of detainees who recently have been transferred or cleared for transfer.

Since a number of those transferred have been "vulnerable to the demagoguery of religious fanatics" (or have been such demogogues) after transfer, being a model prisoner is not a sure indication of a lack of a security risk if released.

Suleiman Awadh Bin Agil Al-Nahdi (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv0280-554) (Judge Gladys Kessler) - denying habeas to a detainee captured at Tora Bora:


To summarize, the Government has met its burden to demonstrate by a preponderance of the evidence that Petitioner heard a fatwa that called on him to fight alongside the Taliban, that he subsequently traveled -- at no cost to himself and while staying at al-Qaida-associated guesthouses ~ -to Afghanistan, that he watched a jihadist video at one such guesthouse, that he received military training at al-Qaida's Al Farouq camp, that he left Al Farouq after a few weeks under orders from al-Qaida leadership, that he traveled to Tora Bora and assumed a role guarding a rear-echelon position at Camp Thabit, again subject to the command of al-Qaida leadership, and that, after leaving Tora Bora, he was injured by Coalition bombs and captured.

Fahmi Salem Al-Assani (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv0280-555) (Judge Gladys Kessler) - denying habeas to another detainee captured at Tora Bora:


To summarize, the Government has met its burden of demonstrating that Petitioner was recruited by al-Qaida members in Yemen, that he subsequently traveled -- at no cost to himself, and through al-Qaida-associated guesthouses -- to Afghanistan, that he received military training at al-Qaida's Al Farouq camp, that while at the camp he became aware of its connection to al-Qaida and Usama Bin Laden but did not dissociate himself from camp commanders or al-Qaida, that he left Al Farouq and received further training tram Al Farouq leaders, that he traveled to Tora Bora under the command of [name redacted] and [name redacted] that he obeyed orders intended to organize his group into distinct units, and that, after leaving Tora Bora under [name redacted] command, he was injured by Coalition bombs and captured.

These two cases are the first cases (if my scorecard has been kept correctly) where Judge Kessler has denied habeas.

Regards

Mike

[jmm99]

Judge Robinson's opinion in the Mohamedou Ould Slahi case (http://www.aclu.org/files/assets/2010-4-9-Slahi-Order.pdf) has been released (see also, posts ## 493 & 494 above).

The Washington Post briefly covered the opinion in a short article today, Federal judge orders release of Guantanamo Bay detainee (http://www.washingtonpost.com/wp-dyn/content/article/2010/04/09/AR2010040905050_pf.html). A much longer backgrounder from the 24 Mar WP is here, For two detainees who told what they knew, Guantanamo becomes a gilded cage (http://www.washingtonpost.com/wp-dyn/content/article/2010/03/24/AR2010032403135.html).

The bottom line for Judge Robinson was:


The government had to adduce evidence -which is different from intelligence -showing that it was more likely than not that Salahi was "part of" al-Qaida. To do so, it had to show that the support Salahi undoubtedly did provide from time to time was provided within al-Qaida's command structure. The government has not done so. The government has shown that Salahi was an al-Qaida sympathizer -perhaps a "fellow traveler"; that he was in touch with al-Qaida members; and that from time to time, before his capture, he provided sporadic support to members of al-Qaida.

The government's problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution. Nevertheless, the government wants to hold Salahi indefinitely, because of its concern that he might renew his oath to al-Qaida and become a terrorist upon his release. That concern may indeed be well-founded. Salahi fought with al-Qaida in Afghanistan (twenty years ago), associated with at least a half-dozen known al-Qaida members and terrorists, and somehow found and lived among or with al-Qaida cell members in Montreal. But a habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government's prediction that he may do unlawful acts in the future -any more than a habeas court may rely upon its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place. The question, upon which the government had the burden of proof, was whether, at the time of his capture, Salahi was a "part of" al-Qaida. On the record before me, I cannot find that he was.

The DC judges have been extremely reluctant to rule against persons who were loosely bound AQ infrastructure cadres - offering recruiting and financial aid ("material support"), but not being directly involved in AQ hostilities.

SCOTUS will decide a material support case this term, although Justice Roberts suggested that that case may be remanded (see post # 481 (http://council.smallwarsjournal.com/showpost.php?p=93871&postcount=481)).

[jmm99]

In Civil Action No. 2009-2368 (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv2368-16), Chief Judge Royce C. Lamberth denied habeas to Mukhtar Yahia Naji al Warafi, who claimed that:


... his detention is not lawful under the AUMF because he never joined the Taliban. Rather, he claims that he went to Afghanistan for the sole purpose of working as an assistant at a medical clinic. In the alternative, petitioner asserts as an affinnative defense that, even ifhe were a part of the Taliban, his detention is not lawful because he was exclusively engaged in providing medical services to the Taliban, and thus qualifies as nondetainable medical personnel under Article 24 ofthe First Geneva Convention.

As to the primary issue (whether a part of the Taliban), the Court found for the government's position:


B. The Reliable Evidence Shows That Petitioner More Likely Than Not Was "Part of' the Taliban

Respondents contend that petitioner was more likely than not part of the Taliban because: (1) petitioner traveled to Afghanistan to fight with the Taliban against the Northern Alliance after reading two fatwas in support of the Taliban; (2) petitioner was stationed on the Khoja Khar front line and received weapons training there; (3) petitioner volunteered to serve as a medical assistant on an as needed basis and provided medical treatment to wounded Taliban fighters; and (4) petitioner traveled to Mazar-e-Sharif on his commander's orders to surrender to the Northern Alliance. Based on the reliable evidence in the record, the Court agrees with respondents and finds that petitioner more likely than not was part of the Taliban.

That brought the Court to the secondary issue - application (if any) of Art. 24, 1949 GC I. That was decided by the Court without extended discussion of the underlying GC issues:


C. Petitioner May Not Invoke tbe First Geneva Convention As a Source of Private Rights in a Habeas Corpus Proceeding

Petitioner argues in the alternative that even if he were a part of the Taliban, he is not detainable because he qualifies as non-detainable medical personnel under the First Geneva Convention. See Article 24, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forced in the Field (hereinafter "First Geneva Convention") (providing that medical personnel "exclusively engaged in ... treatment of the wounded or sick, or in the prevention of disease" are not detainable, except as necessary to treat other prisoners).

Petitioner's argument fails. "No person may invoke the Geneva Conventions ... in any habeas corpus proceeding ... as a source of rights in any court of the United States." See 28 U.S.C. § 2241 (Note). [3] Thus, the Court may only look to "the text of the relevant statutes and controlling domestic caselaw" to determine whether petitioner's detention is lawful. Al-Bihani, 590 F.3d at 871-72. Those sources provide that an individual may be lawfully detained if he were part of, or substantially supported, the Taliban, al Qaeda, or associated forces. See id. at 871-874 (analyzing the relevant statutory text and caselaw to determine the President's detention authority).

[3] This provision was enacted as Section 5 of the Military Commissions Act, Pub. L. No. 109-366, § 5, 120 Stat. 2600, 2631 (Oct. 17,2006). In Boumediene v. Bush, the Supreme Court declared Section 7 of the Military Commissions Act, 28 U.S.C. § 2241(e), unconstitutional because it "effects an unconstitutional suspension of the writ [of habeas corpus.]" 553 U.S. 723, 128 S. Ct. 2229, 2274 (2008). The Court left the remaining provisions of the act intact. [d. at 2275-76. Thus, Section 5 of the Military Commissions Act remains constitutional and does not effect a suspension of the writ of habeas corpus.

The opinion does not get into the question of whether the Taliban was and is subject to any of the 1949 GCs, except for Common Article 3 (which has been used by the Federal courts in the habeas cases despite the prohibition of Sec 5 of the MCA).

[jmm99]

In Civil Action No. 2004-1254, Judge Henry H. Kennedy (Wiki (http://en.wikipedia.org/wiki/Henry_H._Kennedy,_Jr.) and official bio (http://www.dcd.uscourts.gov/kennedy-bio.html)) granted Uthman Abdul Rahim Mohammed Uthman habeas. The judge was certainly influenced by uncontested allegations of torture with respect to the two other detainees who ID'd Uthman as a close UBL associate operating under alias.

The basis for the Court's decision was as follows:


At the Court's request, the parties identified five contested issues of fact before the merits hearing commenced and structured their presentations to address each issue in tum during that hearing. This opinion similarly addresses each issue in tum, and it then considers the reliable evidence as a whole to explain the Court's conclusion that respondents have failed to demonstrate by a preponderance of the evidence that Uthman was part of Al Qaeda.

A. Issue One: Whether Uthman Served as a Bodyguard For or Was Part of the Security Detail of Usama Bin Laden

Respondents' primary argument in this case is that Uthman acted as a bodyguard for Usama bin Laden. The evidence they present in support of this contention fails to convince the Court that it is more likely than not that Uthman was a bodyguard.
.....
B. Issue Two: Whether Uthman's Seizure Near the Site of the Battle of Tora Bora is Incriminatory
.....
On balance, the Court accepts respondents' [USG's] evidence, which is largely based on and consistent with Uthman's own admissions, as true and will consider it in evaluating whether the evidence as a whole supports the continued detention of Uthman.

C. Issue Three: Whether Uthman Fought on the Front Lines and was Present at an Al Qaeda/Taliban Guesthouse in Kabul, Afghanistan
....
The Court agrees with Uthman as to most of this evidence. As explained above, the Court cannot appropriately rely on the information of which Kazimi is the source, primarily because Kazimi's statements are not sufficiently attenuated from torture, of which there are unrebutted allegations in the record, by other interrogators. The other detainee's reference to "Yasser ai-Madani" calls into serious question his identification of Uthman. Even assuming at respondents' suggestion that "ai-Madani" is an erroneous transcription of "al-Adani," respondents have identified no indication anywhere in the record that Uthman used "Yasser" as an alias. Because there is so little reason to believe Uthman was a fighter in Kabul, the Court will not conclude it is more likely than not that this allegation is true.

D. Issue Four: Whether Uthman Attended an Al Qaeda Training Camp and Was Present at an Al Qaeda Guesthouse in Kandahar, Afghanistan
.....
The Court concludes that this evidence, although not necessarily unreliable, is not persuasive as to the contention respondents seek to support. As discussed above, there is no reliable evidence linking Uthman to the name Hudaifa. Therefore, the appearance of that name on the training list, especially without corroboration from any other source that Uthman might have been at a training camp, does not make it more likely than not that Uthman attended the tactics course. That Abu Hudaifa was an alias for other men, whether or not the particular men identified were likely to have attended this particular training, further weakens the proposition that the list itself can support respondents' allegation.
.....
The allegation that Uthman was an amir at an Al Qaeda guesthouse is not as easily dismissed as the training camp allegation. Because Belmar's statement is not a definitive identification, it is not strong evidence of Uthman's presence at such a guesthouse. But it is not so unreliable that the Court disregards it entirely.

E. Issue Five: Whether Uthman's Prior Associations, Travel Route to Afghanistan, and Other Circumstances Further Support that He Was Part of Al Qaeda.

Respondents present a variety of additional evidence and arguments to support their case, and Uthman responds to each point. For example, Uthman argues that giving weight to the undisputed fact that he might have known some men who became involved in terrorism constitutes inappropriately permitting respondents to prove guilt by association.
....
G. Conclusion

In sum, the Court gives credence to evidence that Uthman (1) studied at a school at which other men were recruited to fight for Al Qaeda; (2) received money for his trip to Afghanistan from an individual who supported jihad; (3) traveled to Afghanistan along a route also taken by Al Qaeda recruits; (4) was seen at two Al Qaeda guesthouses in Afghanistan; and (5) was with Al Qaeda members in the vicinity of Tora Bora after the battle that occurred there.

Even taken together, these facts do not convince the Court by a preponderance of the evidence that Uthman received and executed orders from Al Qaeda. Although this information is consistent with the proposition that Uthman was a part of Al Qaeda, it is not proof of that allegation. As explained, the record does not contain reliable evidence that Uthman was a bodyguard for Usama bin Laden or fought for Al Qaeda. Certainly none of the facts respondents have demonstrated are true are direct evidence of fighting or otherwise "receiv[ing] and execut[ing] orders," Gherebi, 609 F. Supp. 2d at 69,17 and they also do not, even together, paint an incriminating enough picture to demonstrate that the inferences respondents ask the Court to make are more likely accurate than not. Associations with Al Qaeda members, or institutions to which Al Qaeda members have connections, are not alone enough to demonstrate that, more likely than not, Uthman was part of Al Qaeda. See Ahmedv. Obama, 613 F. Supp. 2d 51, 63-64 (D.D.C. 2009) (granting the habeas petition of a Guantanamo Bay detainee where the evidence that remained after excluding unreliable evidence amounted to "essentially a charge of guilt by association").

Respondents have presented some evidence that, at first blush, is quite incriminating of Uthman and supportive of the position that he is lawfully detained. Upon close examination of that evidence, however, the Court tinds that there is reason not to credit some of it at all and reason to conclude that what remains is not nearly as probative of respondents' position as they assert. Therefore, the evidence against Uthman is not sufficient to carry respondents' burden.

It is interesting that the judge used the word "incriminating" twice in his final two paragraphs. The "law enforcement" approach to GWOT detainees dies hard.

Another judge may well have gone the other way given the evidence presented.

[Boondoggle]

Something a bit off the current topics, but a good read and an example of the unforseen issues that arise when any case is adjudicated before a court.

http://www.jag.navy.mil/courts/opinion_archive.htm

http://www.marinecorpstimes.com/news/2010/04/marine_hamdaniya_hutchins_042210w/

USMC JA detailed as defense counsel failed to properly withdraw from his representation. Result: back to square one completely. I've only read it very quickly this morning but while it did somewhat surprise me at the court's exceptionally stern attitude to the withdrawal I was really surprised at how the court laid the failure of the captain to properly withdraw straight at the feet of the government.