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

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?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

38 replies
  1. rugger9 says:

    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. Garrett says:

    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. MadDog says:

    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. Garrett says:

    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. spanishinquisition says:

    “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. MadDog says:

    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…

    • Garrett says:

      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.

      • harpie says:

        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. […]

  7. MadDog says:

    …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”.

  8. MadDog says:

    …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.

  9. MadDog says:

    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…

  10. emptywheel says:

    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.

    • MadDog says:

      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.

      • MadDog says:

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

        • MadDog says:

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

          When did the Grand Jury meet?

      • MadDog says:

        …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.

      • harpie says:

        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!

  11. orionATL says:

    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.

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