Eric Holder, Preet Bhrara, and Ray Kelly Planning Civilian Terror Trial in Manhattan

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Was it just a year ago when we were told it was impossible to hold a civilian terrorist trial in NY?

Because that seems to be what DOJ and the NYPD have in mind with alleged -Shabaab leader, Ahmed Abdulkadir Warsame, who is accused of multiple counts of material support for terrorism.

Our government’s refound belief in the safety of terrorist trials in Manhattan is just one of the interesting details of today’s announcement.

Another is whether the Republicans will let DOJ hold this trial–after all, they believe all accused terrorists must be put into the military commission system and have threatened to defund DOJ to make sure that happens.

The unusual conditions under which Warsame has been kept since he was captured on April 19 might make the Republicans more excited about Warsame’s treatment. Apparently, he’s been floating around on a ship being interrogated for over two months. Then just days ago, he was given a Miranda warning, and after it was waived, he reportedly spoke freely with prosecutors. I’ll be curious to learn more about our new floating prisons!

I’m curious too how the NYPD got involved in this case. The indictment is not yet online, so I’m not sure how this arose out of NYC’s JTTF (as it apparently does). But apparently the NYPD has been involved.

Finally, one more question: the US hit Somalia with a drone strike on June 23, and reportedly showed up after the fact (perhaps as late as this weekend) to retrieve the bodies hit in the strike. Is there a connection between that strike and the unsealing of this indictment?


38 thoughts on “Eric Holder, Preet Bhrara, and Ray Kelly Planning Civilian Terror Trial in Manhattan”

  1. Hmmm indeed.

    One cannot hold prisoners on Navy vessels as a rule the large ones do have brigs, but they are also where the UCMJ applies.

  2. This sentence is an informative example

    WARSAME, a Somali national in his mid-twenties, was captured in the Gulf region by the U.S. military on April 19, 2011, and was questioned for intelligence purposes for more than two months. Thereafter, WARSAME was read his Miranda rights

    of how the policy of a pre-Miranda “intelligence collection” period works, in practice. “More than two months,” we know from it.

  3. An additional tidbit was JSOC head, and soon to be head of U.S. Special Operations Command, Admiral McRaven’s statement last month before the Senate:

    …Vice Adm. William H. McRaven told a Senate panel that contingency plans for detaining terrorism suspects are developed on an ad hoc basis and approved by the White House, but that there are no set rules. “That is always a difficult issue for us,” he testified. “No two cases seem to be alike.”

    In response to senators’ questions, McRaven said that “in many cases” suspects captured in secret operations by Navy SEALs or the Army’s Delta Force are taken to a U.S. Navy ship until they can be tried in a U.S. court or transferred to the custody of an allied country. But if neither option turns out to be feasible, the prisoner is ultimately let go, he said.

    “If we can’t do either one of those, then we will release that individual,” McRaven said in response to a question from Sen. Lindsey O. Graham (R-S.C.). “I mean, that becomes the unenviable option, but it is an option.”

    McRaven did not describe any specific cases in which prisoners were freed…

  4. For the ship thing

    One of the unanswered questions of the Obama administration’s counterterrorism strategy has been what it would do if it captured an important terrorist. Obama does not want to send more people to Guantanamo Bay and the CIA’s so-called black sites” are closed.

    what it really says, is that Black Sites are open, not closed. They just put them on a boat. Which is pretty much where they originally started.

  5. “what it really says, is that Black Sites are open, not closed. They just put them on a boat. Which is pretty much where they originally started.”

    There’s other black prison sites as well, just they’re called Intelligence Gathering Centers.

  6. Some additional news details:

    Via the Bellingham Herald:

    …Officials said Warsame’s interrogation was conducted “humanely” and under the rules of the U.S. Army Field Manual, which strictly limits the types of interrogation techniques that can be used. During the interrogation, Warsame provided considerable information about activities in Yemen, the officials said. He was questioned by members of the High Value Interrogation Group, a unit made up of FBI, CIA and Defense Department personnel, said senior administration officials who spoke on condition of anonymity…

    Via the WaPo:

    …U.S. officials said Warsame and another individual, who was later released, were apprehended while aboard a boat traveling from Yemen to Somalia…

    …But the federal charges brought in the Southern District of New York also indicate a desire on the part of the administration to try terrorism suspects in U.S. civilian courts. “After taking a very careful look at our options, it became clear to us that the federal courts had jurisdiction to try Warsame for terrorist-related offenses,” a senior administration official said.

    The official said that jurisdiction for military commissions, which are being used to try detainees at the military prison at Guantanamo Bay, Cuba, was “relatively limited” compared with that of federal courts. Flying Warsame secretly to New York also allows the administration to bypass congressional objections to bringing terrorism suspects to this country for civilian trials.

    The capture of Warsame was carried out by the U.S. Joint Special Operations Command, the elite military body that executed the raid against Osama bin Laden in May and has played a secret but critical role in U.S. counterterrorism operations around the world…

    …Interrogators did not need to provide Miranda warnings immediately, the official maintained. After two months of questioning, intelligence officials turned Warsame over to law enforcement officials who came aboard the ship, allowed four days to pass, and then read him his Miranda rights before any attempt to question him further. Administration officials said Warsame did not ask for a lawyer and continued to cooperate…

    …U.S. Navy Vice Adm. William H. McRaven alluded to the captures in testimony before a Senate committee last week in which he lamented the lack of clear plans and legal approvals for the handling of terrorism suspects captured beyond the war zones of Iraq and Afghanistan…

  9. …Finally, one more question: the US hit Somalia with a drone strike on June 23, and reportedly showed up after the fact (perhaps as late as this weekend) to retrieve the bodies hit in the strike. Is there a connection between that strike and the unsealing of this indictment?

    From the WaPo piece:

    …Three senior administration officials, speaking on the condition of anonymity, briefed reporters Tuesday on the Warsame indictment. One official said the intelligence Warsame provided was “very valuable,” but declined to say whether it the basis for the drone attack…

    Based on the non-denial denial, I take their answer to be “yes”.

  11. …I’m curious too how the NYPD got involved in this case. The indictment is not yet online, so I’m not sure how this arose out of NYC’s JTTF (as it apparently does). But apparently the NYPD has been involved…

    First, just a guess here, but I would bet there is a Somali al-Shabab cell in NYC under surveillance, and perhaps even infiltrated, and that Warsame was involved with it.

    Secondly, resident Legal Eagles correct me if I’m wrong, but doesn’t a Federal charge like this require a criminal act with a nexus in the jurisdiction the individual is charged?

    If so, my first guess above seems all the more likely.

  13. An interesting question from Charlie Savage And Eric Schmitt of the NYT in their article:

    …But Mr. Warsame was taken to a naval vessel, where he was questioned for the next two months by military interrogators, the officials said. They said his detention was justified by the laws of war, but declined to say whether their theory was that Al Shabaab is covered by Congress’s authorization to use military force against the perpetrators of the Sept. 11, 2001, terrorist attacks – meaning that the United States is now at war with that group — or whether the detention was instead justified by his interactions with Al Qaeda’s Yemen branch, or some other theory…

  15. The Charlie Savage And Eric Schmitt NYT article notes that “an indictment unsealed in the Southern District of New York” so it might be out on Pacer now.

  17. I’ve never been on Pacer so I don’t know its search capabilities, but I do remember bmaz saying that unless you have something like the case number or docket number, you’re toast.

    Ahhh well, I guess we’ll have to just wait some more. *g*

  19. And simultaneously reading via Secrecy News the government’s response (32 page PDF) to “New York Times reporter James Risen’s June 21 motion to quash a subpoena to compel him to testify in the case of Jeffrey A. Sterling.”

  20. Just a deserving note that EW and her famous Torture Timeline are identified on page 4, footnote 17 as source material for this Douglas Cox publication.

  22. Btw, here’s the Warsame indictment.

    http://t.co/XtHKxa7

    Not sure how the jurisdiction is NYC. I’m wondering whether this isn’t a masterstroke–kind of–dreamt up by Daley or something, to do PRECISELY what the GOP said shouldn’t be done: have a terror trial in NYC. Then there’s Ray Kelly, who is invited to get involved so he can have some of the glory. And maybe angle to be FBI Director.

    In other words, a quick conviction and all teh demons of the 9/11 miscue are overturned.

    Of course, there’s the whole matter of the floating prison, the holding under an AUMF that doesn’t apply, and the bogus Miranda question, as well as Appendix M.

  23. Way!

    And like you, I’m getting that eye-closing thing going. I’m gonna read the NYT and call it a night.

  24. Ooh la la! Just as my eyes are closing! *g*

    …Not sure how the jurisdiction is NYC. I’m wondering whether this isn’t a masterstroke–kind of–dreamt up by Daley or something, to do PRECISELY what the GOP said shouldn’t be done: have a terror trial in NYC. Then there’s Ray Kelly, who is invited to get involved so he can have some of the glory. And maybe angle to be FBI Director…

    Yup, could very well be a political tactic. Though this is sprinkled throughout the indictment:

    …involving an offender who aids, abets, and conspires with a national of the United States…

    Which might further my guess that there is a US-based component/cell involved.

  25. And WTF is that “forfeiture allegation” at the tail end of the indictment all about?

  26. Whether “Anatomy of a Lead,” a CIA memo title in the previous story, counts as an indirect shoutout, I wouldn’t know.

  27. And another thing I found missing was the lack of date on the indictment. Isn’t that unusual?

    When did the Grand Jury meet?

  28. …involving an offender who aids, abets, and conspires with a national of the United States…

    Doh! Must be the sleep fog rolling in that made me miss the obvious.

    I’m guessing the “national of the United States” they’re referring to is none other than Anwar al-Awlaki.

  29. Heh! I wouldn’t be surprised if EW is Open Source material used by the various agencies in our National Security State apparatus.

  30. He was questioned by members of the High Value Interrogation Group, a unit made up of FBI, CIA and Defense Department personnel

    That’s more by org chart than telling us who actually did what.

    But intelligence extracted by FBI, CIA, and DOD. Then criminal investigated by the FBI.

    How very unclean.

  32. completely, utterly, unforgivably OT:

    http://www.nytimes.com/2011/07/05/science/05dig.html?hpw

    there is nothing more revealing of the debased state of american culture than a situation in which knowledge and understanding of the deep, deep past

    are held subservient to contract rights.

    could a judge be more oblivious, more insensitive to the greater need of society?

    that same question applies, with even greater force, to the laws and rulings the judge abided by.

  35. For the Record:

    From page 4 of the pdf MadDog links to @18

    The growing public narrative of the creation and destruction of the

    videotapes discloses certain basic facts. 17

    *****

    17. <i<See generally THE CIA INTERROGATION OF ABU ZUBAYDAH, available at

    http://www.aclu.org/files/assets/CIA_Interrogation_of_AZ_released_04-15-10.pdf [hereinafter

    CIA Abu Zubaydah Report]; see also American Civil Liberties Union, Selected Chronology of

    the CIA’s Destruction of 92 Videotapes, http://www.aclu.org/files/assets/20091124_Chronology_of_Videotapes.pdf; Marcy Wheeler, Torture Timeline, EMPTYWHEEL, http://emptywheel.firedoglake.com/timeline-collection/torture-tape-timeline/.

    ******

    Douglas Cox-Associate Law Library Professor, City University of New York School of Law. The author has represented individuals detained in Guantánamo and previously worked in

    military intelligence in the U.S. Army. The views expressed are only those of the author and

    all of the information contained in this article is derived solely from unclassified sources. […]

  36. Yeah-a plant—entrapment? [No matter how cynical I get, I just can't keep up-attributed to Lily Tomlin]

    On edit: @28—oh yeah, him!

  37. But intelligence extracted by FBI, CIA, and DOD. Then criminal investigated by the FBI.

    How very unclean.

    But, but but…it’s called the “clean team”!

    U.S. Indicts Somali on Terrorism Charges; Keith Johnson; WSJ; 7/6/11

    [...] After the intelligence interviews concluded, Mr. Warsame was advised of his Miranda rights and a separate FBI “clean team” re-interviewed Mr. Warsame for evidence that could to be used in a possible trial, officials said. A senior law-enforcement official said Mr. Warsame waived his right to remain silent and continued to talk. [...]

  38. But wait! Don’t forget Bagram!
    Bagram prison, bigger than Guantanamo, its prisoners in limbo, cries out for some news coverage

    …As Human Rights First states, the ever-growing number of Bagram detainees – most of whom are Afghans – have far fewer rights than their counterparts at the much more controversial Guantanamo Bay prison. Thanks to a 2008 Supreme Court decision, Guantanamo detainees “have the right to challenge their detention in a U.S. court and to representation by a lawyer,” something Bagram prisoners are denied, the report notes….

    Bob in AZ