Crimes, War Crimes and the War on Terror

[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/news...statement.html

A more pithy article, including the judge's comments is: http://www.guardian.co.uk/world/2009...dence-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:

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 and Wiki. 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 - 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: 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: 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:

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:

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 (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:

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.

[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

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 (now unsealed, 48 pp.)

Headley Complaint and Affidavit (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

[jmm99]

From the Detroit News, 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, 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 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/nationwo...tory?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.

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/programme...on/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 and DoJ Press Release. 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, 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/worl...ial-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, 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, 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, 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. 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? 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