Crimes, War Crimes and the War on Terror

[jmm99]

An interesting proposal from the WP, The best trial option for KSM: Nothing.

By Benjamin Wittes and Jack L. Goldsmith
Friday, March 19, 2010; A23

The Obama administration and its critics are locked in a standoff over whether to try Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators in a military commission or in federal court. Both sides are busily ignoring the obvious solution: Don't bother trying them at all.

Mohammed has already spent more than seven years in military detention. Both the Obama administration and the Republicans who object to trying him in federal court accept the legitimacy of such detention as a traditional incident of war for those in the command structure of al-Qaeda, and perhaps for associated forces as well. In general outline, so do the courts. Given these facts, the politically draining fight about civilian vs. military trials is not worth the costs. It also distracts from more important questions in the legal war against terrorism. ... (more in article)

Comments?

Mike

[davidbfpo]

JMM,

In the GWOT and other parts of the campaign against AQ much has been made of their activity being criminal. This option, criminalisation, is a standard option in CT and COIN; yes, it is hard.

Is there an expectation of due process for those detained? Not only within the USA, but within the Muslim community? As a Swiss diplomat commented recently

'It is not what you say, it is what they understand'.

We do seem to have been "hoisted by our own petard".

Imagery aside, what are the substantive arguments over having a trial now for the 9/11 planners? My own preference would be for a civil court, using military tribunals - which I suspect would not be open - would be bad for imagery and impact beyond the court room.

I wonder is there any polling on the issues, outside the USA?

So much of post-9/11 effort has been 'intelligence-led' and not 'prosecution-led'. How big a penalty have we paid for this?

[Boondoggle]

An interesting proposal from the WP, The best trial option for KSM: Nothing.



Comments?

Mike

Weeding out those who get picked up in the future, and an overzealous US government uses this as precedent to hold those either no longer party to a conflict or dangerous to our national security, or who somehow made it this far in the system but were never the threat they were alleged to be. Using future hypotheticals to deny the use of pragmatic and even necessary action to fight current conflicts has always struck me as bad practice... or as an opportunity for lawyers to "prove their worth" but in this case there has to be some sort of check and balance that allows at least some outside the system review. Maybe that doesn't require any sort of trial, but because of the stakes at hand, potential detention for life without access to the US court system, there needs to be something. Maybe that doesn't require resort to a trial, but there needs to be something.

As to David, I'd disagree, I'd much rather be "intel" led than "prosecution" led. As I had the opportunity to speak a bit with Mr. Wittes a few weeks ago, we can't turn back the clock. But what we can do is roll them up from doing bad stuff again and stop further attacks. IMO, that is more important in the long run to our national security than "accountability", "judgment" or "punishment". To the extent that intel and prosecutorial interests clash, I for one would favor intel for those reasons.

[jmm99]

While both "intelligence-led" and "prosecution-led" are valid factors in considering the value of detention, my own preference for the leading factor is "security led". Quite simply: are we more secure if the person is detained rather than allowing him to be roaming about ?

This recently-breaking habeas decision involving detainee Mohamedou Ould Slahi (Wiki) - reported in the WSJ (also on Fox and other outlets) should blow the lid off the entire detention process and require a re-assessment of why we detain and how we detain.

From today's WSJ (via Fox):

Judge Orders Release of Gitmo Detainee With Ties to 9/11 Attacks
Monday, March 22, 2010

WASHINGTON — A suspected Al Qaeda organizer once called "the highest value detainee" at Guantanamo Bay was ordered released by a federal judge in an order issued Monday.

Mohamedou Ould Slahi was accused in the 9/11 Commission report of helping recruit Mohammed Atta and other members of the Al Qaeda cell in Hamburg, Germany, that took part in the Sept. 11, 2001, terrorist attacks.

Military prosecutors suspected Slahi of links to other Al Qaeda operations, and considered seeking the death penalty against him while preparing possible charges in 2003 and 2004.

U.S. District Judge James Robertson granted Slahi's petition for habeas corpus, effectively finding the government lacked legal grounds to hold him. The order was classified, although the court said it planned to release a redacted public version in the coming weeks.

Robertson held four days of closed hearings in the Slahi case last year.

The habeas decision apparently accorded with an earlier decision concerning military commission trial of Slahi:

Brig. Gen. John Furlow, who helped lead a Pentagon-ordered investigation into detainee abuse at Guantanamo Bay, has testified that Slahi was "the highest value detainee" at the offshore prison and "the key orchestrator of the Al Qaeda cell in Europe."

Plans to try him by military commission were derailed after prosecutors learned that Slahi had been subjected to a "special interrogation plan" involving weeks of physical and mental torment, including a death threat and a threat to bring Slahi's mother to Guantanamo Bay where she could be gang-raped, officials said.

Although the treatment apparently induced Slahi's compliance, the military prosecutor, Marine Lt. Col. V. Stuart Couch, determined that it constituted torture and evidence it produced could not lawfully be used against Mr. Slahi.

Full analysis of this case will have to await publication of the redacted classified opinion.

[jmm99]

The Wash Post has an update on Slahi (post above), which suggests there is a lot more to this story - Slahi and another AQ member, Tariq al-Sawah, are among the most informing of the Gitmo detainees.

From the WP, For two detainees who told what they knew, Guantanamo becomes a gilded cage:

By Peter Finn
Washington Post Staff Writer
Wednesday, March 24, 2010; 10:59 PM

By the time Tariq al-Sawah, a veteran of the wars in Bosnia and Afghanistan, reached Guantanamo Bay, Cuba, in May 2002, there was no fight left in him. Injured by a cluster bomb in the mountains of Afghanistan, the middle-aged Egyptian was still recovering from wounds to his hands, back, thighs and buttocks when the Americans grabbed him.

Three months later, Mohamedou Ould Slahi, who had moved in radical circles in Germany, turned up at the U.S. military prison. There, a masked interrogator threatened the Mauritanian with death while others deprived him of sleep and bombarded him with sound and light, pushing him to the brink of a mental breakdown.

When it came to their initial treatment at Guantanamo, Sawah and Slahi had little in common, according to military officials. Their paths would intersect only later, when they both made the same choice: to cooperate with the United States.

Sawah, now 52, and Slahi, now 39, have become two of the most significant informants ever to be held at Guantanamo. Today, they are housed in a little fenced-in compound at the military prison, where they live a life of relative privilege -- gardening, writing and painting -- separated from other detainees in a cocoon designed to reward and protect.

But as the Obama administration attempts to close the prison, Sawah and Slahi are trapped in a gilded cage. Their old jihadi comrades want them dead, revenge for the apostasy, now well known, of working with the United States. The U.S. government has rewarded them for their cooperation but has refused to countenance their release.

Some military officials believe the United States should let them go -- and put them into a witness protection program, in conjunction with allies, in a bid to cultivate more informants. (much more in article)

If half of what the WP says is true, these two are security risks to AQ.

Regards

Mike

PS: Two articles re: what appears to be initiation of a serious proposal from some legislators to the White House, looking at a comprehensive schema for handling detainees in the future - WP,
Graham proposes framework for handling terrorism suspects; and William Fisher, Lindsey Graham’s Grand Bargain.

Boondoggle's Mr. Wittes appears in both articles.

[jmm99]

Obama Team Is Divided on Anti-Terror Tactics (NYT):

Legal Memo
Obama Team Is Divided on Anti-Terror Tactics
By CHARLIE SAVAGE
Published: March 28, 2010

WASHINGTON — Senior lawyers in the Obama administration are deeply divided over some of the counterterrorism powers they inherited from former President George W. Bush, according to interviews and a review of legal briefs.

The rift has been most pronounced between top lawyers in the State Department and the Pentagon, though it has also involved conflicts among career Justice Department lawyers and political appointees throughout the national security agencies.

The discussions, which shaped classified court briefs filed this month, have centered on how broadly to define the types of terrorism suspects who may be detained without trials as wartime prisoners. The outcome of the yearlong debate could reverberate through national security policies, ranging from the number of people the United States ultimately detains to decisions about who may be lawfully selected for killing using drones.

“Beyond the technical legal issues, this debate is about the fundamental question of whom we are at war with,” said Noah Feldman, a Harvard law professor who specializes in war-power issues. “The two problems most plaguing Obama in the war on terrorism are trials for terrorists and taking the fight beyond Afghanistan to places like Pakistan and Yemen. This issue of whom we are at war with defines both of them.”
....
The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters.

That view was amplified after Harold Koh, a former human-rights official and Yale Law School dean who had been a leading critic of the Bush administration’s detainee policies, became the State Department’s top lawyer in late June. Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case [*; see PS].

Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war — now or in the future.

In September 2009, national-security officials from across the government packed into the Office of Legal Counsel’s conference room on the fifth floor of the Justice Department, lining the walls, to watch Mr. Koh and Mr. Johnson debate around a long table. It was up to Mr. Barron, who sat at the head of the table, to decide who was right.

But he did not. Instead, days later, he circulated a preliminary draft memorandum stating that while the Office of Legal Counsel had found no precedents justifying the detention of mere supporters of Al Qaeda who were picked up far away from enemy forces, it was not prepared to state any definitive conclusion. ..... (much more in NYT article)

And so it apparently will go - no definititive conclusion defining and distinguishing the enemy we are to confront.

PS: Wiki for Belkacem Bensayah.

[jmm99]

Since the Dec 2009 Update (focused on the Farhi Saeed Bin Mohammed case), only 4 merits decisions have been entered to date.

Saeed Mohammed Saleh Hatim (Judge Ricardo Urbina) - granting his habeas petition based on the following reasoning:

The government's allegations rest almost entirely upon admissions made by the petitioner himself - admissions that the petitioner contends he made only because he had previously been tortured while in U.S. custody. Significantly, the government does not contest the petitioner's claims of torture; rather, it argues that the court should credit the petitioner's statements notwithstanding those claims. The government's justification for detention also rests heavily on a third-party identification by a GTMO detainee whose reliability has been seriously called into question by the court as well as by GTMO intelligence officers.

Upon consideration of the record, the parties' extensive submissions and the arguments presented during the merits hearing, the court concludes that the government has failed to persuade the court that the petitioner's detention is lawful. Accordingly, the court grants the petition for writ of habeas corpus.

Here, the uncontested torture claims had definite impact.

Musa'ab Omar Al Madhwani (Judge Thomas F. Hogan) - denying habeas, although questioning whether Madhwani was a current secuirty threat:

It also is telling that al-Qaida considered Petitioner to be a member. AI-Qaida admitted him to their training camp and trained him to use firearms. AI-Qaida allowed him to be in the presence of bin Laden, twice. AI-Qaida assigned him to the charge of two al-Qaida instructors when the training camp closed. AI-Qaida fed, sheltered, and protected him. AI-Qaida sent him to live in an apartment in Karachi frequented by al-Qaida members. The only logical explanation as to why al-Qaida did all of this for Petitioner is that they considered him a member. Petitioner must have taken some affirmative action to earn that trust and assistance from such a clandestine organization. Accordingly, the Government has proved by a preponderance of the evidence that Petitioner was "part of' al-Qaida.

Though there is sufficient evidence in the record to prove Petitioner was a "part of' al-Qaida, the Court is not convinced that it is more likely than not that Petitioner is a threat to the security of the United States. As a young, unemployed, undereducated Yemeni, Petitioner was particularly vulnerable to the demagoguery of religious fanatics. The record reflects that Petitioner was, at best, a low-level al-Qaida figure. It does not appear he even finished his weapons training. There is no evidence that he fired a weapon in battle or was on the front lines. There is also no evidence that he planned, participated in, or knew of any terrorist plots. Classified documents in the record confirm the Court's assessment. As does the fact that he appears to have been a model prisoner during his seven years of detention. The Court fails to see how, based on the record, Petitioner poses any greater threat than the dozens of detainees who recently have been transferred or cleared for transfer.

Since a number of those transferred have been "vulnerable to the demagoguery of religious fanatics" (or have been such demogogues) after transfer, being a model prisoner is not a sure indication of a lack of a security risk if released.

Suleiman Awadh Bin Agil Al-Nahdi (Judge Gladys Kessler) - denying habeas to a detainee captured at Tora Bora:

To summarize, the Government has met its burden to demonstrate by a preponderance of the evidence that Petitioner heard a fatwa that called on him to fight alongside the Taliban, that he subsequently traveled -- at no cost to himself and while staying at al-Qaida-associated guesthouses ~ -to Afghanistan, that he watched a jihadist video at one such guesthouse, that he received military training at al-Qaida's Al Farouq camp, that he left Al Farouq after a few weeks under orders from al-Qaida leadership, that he traveled to Tora Bora and assumed a role guarding a rear-echelon position at Camp Thabit, again subject to the command of al-Qaida leadership, and that, after leaving Tora Bora, he was injured by Coalition bombs and captured.

Fahmi Salem Al-Assani (Judge Gladys Kessler) - denying habeas to another detainee captured at Tora Bora:

To summarize, the Government has met its burden of demonstrating that Petitioner was recruited by al-Qaida members in Yemen, that he subsequently traveled -- at no cost to himself, and through al-Qaida-associated guesthouses -- to Afghanistan, that he received military training at al-Qaida's Al Farouq camp, that while at the camp he became aware of its connection to al-Qaida and Usama Bin Laden but did not dissociate himself from camp commanders or al-Qaida, that he left Al Farouq and received further training tram Al Farouq leaders, that he traveled to Tora Bora under the command of [name redacted] and [name redacted] that he obeyed orders intended to organize his group into distinct units, and that, after leaving Tora Bora under [name redacted] command, he was injured by Coalition bombs and captured.

These two cases are the first cases (if my scorecard has been kept correctly) where Judge Kessler has denied habeas.

Regards

Mike

[jmm99]

Judge Robinson's opinion in the Mohamedou Ould Slahi case has been released (see also, posts ## 493 & 494 above).

The Washington Post briefly covered the opinion in a short article today, Federal judge orders release of Guantanamo Bay detainee. A much longer backgrounder from the 24 Mar WP is here, For two detainees who told what they knew, Guantanamo becomes a gilded cage.

The bottom line for Judge Robinson was:

The government had to adduce evidence -which is different from intelligence -showing that it was more likely than not that Salahi was "part of" al-Qaida. To do so, it had to show that the support Salahi undoubtedly did provide from time to time was provided within al-Qaida's command structure. The government has not done so. The government has shown that Salahi was an al-Qaida sympathizer -perhaps a "fellow traveler"; that he was in touch with al-Qaida members; and that from time to time, before his capture, he provided sporadic support to members of al-Qaida.

The government's problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution. Nevertheless, the government wants to hold Salahi indefinitely, because of its concern that he might renew his oath to al-Qaida and become a terrorist upon his release. That concern may indeed be well-founded. Salahi fought with al-Qaida in Afghanistan (twenty years ago), associated with at least a half-dozen known al-Qaida members and terrorists, and somehow found and lived among or with al-Qaida cell members in Montreal. But a habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government's prediction that he may do unlawful acts in the future -any more than a habeas court may rely upon its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place. The question, upon which the government had the burden of proof, was whether, at the time of his capture, Salahi was a "part of" al-Qaida. On the record before me, I cannot find that he was.

The DC judges have been extremely reluctant to rule against persons who were loosely bound AQ infrastructure cadres - offering recruiting and financial aid ("material support"), but not being directly involved in AQ hostilities.

SCOTUS will decide a material support case this term, although Justice Roberts suggested that that case may be remanded (see post # 481).