Crimes, War Crimes and the War on Terror

[davidbfpo]

A NYT article with all sorts of "leaked" suggestions on current actions by partners against AQ: http://www.nytimes.com/2009/05/24/wo..._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/nationwo...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/ima...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 to his prior case mamagement orders, allowing limited access 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 - 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...s-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.

The indictment, which is long-standing and includes multiple defendants (e.g., UBL, Zawahiri, etc.) involved in the Embassy Bombings, is here.

Some comments about and from Ghailani in a WP article earlier this year 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:

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 was formerly part of the US-administered Trust Territory of the Pacific Islands (TTPI), which now is in free association with the US. As they say, nothing comes for free.