Crimes, War Crimes and the War on Terror

[Boondoggle]

http://www.washingtontimes.com/news/...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 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 (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.

[jmm99]

Judge John Bates has issued an opinion and order in his remaining Bagram habeas case.

These cases and Judge Bates' prior decisions have been reported here and here 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-n...s-1792700.html

Better than none.

davidbfpo

[jmm99]

since it seems a bit of inter sept separation 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:

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.

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/SB1246...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 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, the ACLU (representing Jawad in the DC habeas proceeding) filed a motion to exclude the same statements. On 15 Jul, the DoJ (per Tony West) agreed in essence by not opposing the motion. The ACLU press release has its take on the case. The ACLU site has a list of pleadings and press releases 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".

[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 - 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 - 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 - 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.

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

From the L.A. Times:

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

November 14, 2008, First indictment

November 22, 2008, Court transcript

January 28, 2009, Superseding indictment

January 28, 2009, Court transcript

July 22, 2009, Order to unseal

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 and here.

[jmm99]

Here is the today's Washington Post update 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 - 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).

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; 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 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.

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 on Friday, together with a press release, 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 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. 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