The UndieBomber Trial Gets Interesting

I used to have a bit of a party trick last year before I moved out of SE Michigan. At some opportune time, I’d surprise folks by telling them the UndieBomber, Umar Farouk Abdulmutallab, was in a prison just 20 miles from where we were in Ann Arbor, one you’d pass on the way down to Ohio.

Every time I did this, people were surprised to learn he was at that prison.

I raise this because of one of four developments (reported by Josh Gerstein) in the Abdulmutallab case that might make the trial something beyond the routine trial in October I had been expecting. These are:

  • Abdulmutallab is asking to have the trial moved out of Michigan
  • Abdulmutallab is asking to have statements he made while under sedation suppressed
  • Abdulmutallab is asking to have statements he made while at the Milan Correctional Facility suppressed
  • The government is asking for a protective order to withhold information from Abdulmutallab that appears to include exculpatory information

Now, from the standpoint of the defense, I think the request for a change of venue is a big mistake (remember Abdulmutallab is defending himself, although he is being assisted by a lawyer who seems to have been very involved in these filings). Given that this is a counterterrorism case, I presume it would only be moved to NY, DC, or VA. I suspect the jury pool would be demographically better for Abdulmutallab in MI than (at least) in VA. And, as my little party trick suggests, even people from among the jury pool who are exposed to counterterrorism issues on a regular basis (because they hear me talk about torture and wiretapping and such things) had pretty much forgotten Abdulmutallab was there just months after the attack. Finally, while I don’t know the entire manifest of the plane that Abdulmutallab allegedly attacked, Detroit is a hub, which means a lot of the passengers on the plane presumably connected on to somewhere else.

More importantly, if Judge Nancy Edmunds does consent to Abdulmutallab’s request, it will likely reignite the debate about what kind of trials alleged terrorists should have, and where. I assume at least some Republicans would use the event of a venue move to argue Abdulmutallab should be tried in Gitmo.

Particularly given the other filings in the case.

As a reminder, Abdulmutallab was detained in Detroit and taken to University of Michigan hospital for treatment. Throughout this period, Abdulmutallab was talking–under a public safety exception, the government has said. Then, 10 hours later, he was read his Miranda rights, and he stopped talking until such time as–weeks later–his family convinced him to talk.

But according to Abdulmutallab, in addition to the Miranda issue during the early period when he was talking (which I don’t expect to get much traction because it seems to fall squarely under a public safety exception), for part of it he was also under sedation, and hospital staff told federal agents he was not fit to be interrogated.

That hospital staff advised federal agents that the Defendant was in no position to conduct a legal interview because he had just been administered 300 mg of fentanyl. [sic–as Jim points out this seems to be the wrong dose]

That hospital staff were direct and clear when advising federal agents that the Defendant would not be able to conduct a legal interview for four to six hours.

In addition to challenging the admission of these statements (note, I think Abdulmutallab did speak to agents even before this), he is also trying to suppress statements made while at the prison they held him. He claims statements he made there–he seems to claim, all of them, which I find dubious–were made in the course of discussions about a plea agreement.

Defendant ABDULMUTALLAB met with government agents on numerous occasions at the Milan Correctional Facility. The government intended to obtain incriminating statements from Defendant regarding the alleged incident on December 25, 2009. In addition, the government engaged in plea negotiations with the Defendant during the meetings.
Before the meetings began, the government agents verbally agreed that they would not use any statements Defendant made, against him. Defendant relied on the government’s representation – as officers of the court – and made incriminating statements. See United States v. Dudden, 65 F.3d 1461, 1467 (9th Cir. 1995) (the government can grant the defendant varying degrees of immunity in an informal agreement). Allowing the government to use these statements at trial will violate the government’s agreement with Defendant.

Now, as I said, I find this much more dubious. There were several stages of interrogation at Milan (pronounced “My-lan,” btw). And I don’t believe all of these would have been in the context of plea negotiations.

Finally, there’s the government’s motion requesting a protective order,

…precluding discovery of certain classified information and precluding the defendant from inquiring of certain subjects during the cross-examination of government witnesses, because cross-examination of these subjects may result in the disclosure of classified information. The classified information the government seeks to protect is either not exculpatory, is privileged, or otherwise not discoverable.

Now part of this seems to stem from the fact that Abdulmutallab is defending himself (and so would get access to all this material himself–with many of the other alleged terrorists in civilian proceedings, their lawyers get such information, but they are forbidden from disclosing the information to their client). But note that last compound statement: this is information that is either not exculpatory or is privileged or is “otherwise not discoverable.”

This filing seems to suggest that some of this information is exculpatory, but is privileged (If it were really “otherwise not discoverable,” then why would it be included in this filing?). And they don’t even bother to say what kind of privilege. Is this a back-door state secrets declaration? The part of the filing that discusses this information is entirely classified.

And think of what kind of information this might possibly be. Just guessing here, but I think it might include,

  • Details about interrogation methods used with Abdulmutallab
  • Details about any pressure they used to convinced Abdulmutallab’s family to help get him to cooperate (remember Abdulmutallab’s father is a prominent Nigerian banker)
  • Information about Anwar al-Awlaki, including (potentially) information that shows AQAP didn’t consider Abdulmutallab a serious member; note this might include SIGINT
  • Information about how the government had information about Abdulmutallab, but didn’t act on it

I have no idea which of these they’re trying to hide, or even if I’ve thought of everything. But given how some of these issues–interrogation techniques, pressure on the family–go to behaviors that might otherwise be illegal, but seem to be increasingly used with alleged terrorists tried in civilian courts (both, I believe, were factors in Faisal Shahzad’s treatment), I find it interesting that the government refuses to share it with Abdulmutallab.

What I find interesting about all this, taken together, is what it suggests about our treatment of counterterrorism. This should be an open-and-shut case. There are tens of witnesses that saw Abdulmutallab try to blow up a plane, and at least some of his own statements must be admissible. But because of the way we’ve treated it, it seems to have introduced issues entirely of the government’s own making that will make it harder to try in civilian court. The government seems to be unable or unwilling to cleanly bracket off intelligence gathering. And–if the suggestion they’re hiding exonerating evidence under some kind of privilege is right–they continue to be unwilling to give alleged terrorists access to the exonerating information learned in intelligence collection, either.

I don’t think this makes the case for military commissions, which after all are mostly an attempt to pretend such actions don’t affect the legitimacy of the trial. But they seem to have unnecessarily introduced all the challenges they complain about when they try to justify military commissions.

17 replies
  1. Jim White says:

    Do we know how seriously he was injured when the bomb fizzled? And somewhat related, do we know who administered the fentanyl? Is there any chance it was administered by law enforcement prior to his transport to the hospital?

    And this article would make me think he got 300 micrograms, not 300 milligrams:

  2. emptywheel says:

    @Jim White: @Jim White: Third degree burns. The filing also says the attending physician said he was “depressed almost to the point of coma,” but I’m not sure I buy that means he was in a coma.

  3. bmaz says:

    @emptywheel: Couple of quick things (today is first day of school for my new junior in high school). First off, the venue change motion looks weak; just do not see this going anywhere.

    The voluntariness motion however, looks pretty compelling to me, both in its several component parts and in toto. But under fairly recent decisions like Berghuis and Florida v. Powell, my guess is the court will manufacture enough headroom to deny it.

    Also, as to what may be in the material in the strangely worded description sought to keep privileged, wasn’t there some goofy fact pattern surrounding fly lists, the dude wo took Abdulmutallab to the airport and departure gate wo had diplomatic cred of some kind etc?

  4. emptywheel says:

    @bmaz: Agree the venue motion is weak–but I also think it’s stupid. Abdulmutallab is a bigger bogeyman in DC than he is in MI.

    That said, they presumably don’t think it’ll work, bc they also filed for indiv voir dire.

    There were two allegations about weird stuff. First, that a well-dressed man helped Abdulmutallab get through passport control in Schipol. And (from the same guy) that dogs found something on another passenger that led to that passenger’s arrest.

    • bmaz says:

      Agree on venue change stupidity. My guess is they know there is no danger whatsoever under current facts of it being granted, but want it preserved for down the road for when Crazy Pete starts saying Crazy Shit ahead of the trial and ginning up public furor. Probably never go anywhere, but I can see an attorney so protecting the issue for appeal.

      Back to the voluntariness motion though; there are several things which ought to be very compelling. For instance the part about the medical personnel point blankedly stating he was not sufficiently cognizant to be interrogated at a very critical interlude early on. If there is enough poisoned fruit coming out of that which can be established at an evidentiary hearing, then you really have something. Then add on the other infirmities, and you really have a totality of circumstances and pattern of willful evasion of Miranda that is pretty compelling. Just because Scalia (Schatzer) and Tony Kennedy (Berghuis) Kennedy, and yes even Ginsburg (Powell), have narrowed and/or obliterated the meaning of Miranda (heck Scalia in Dickerson just oozes contempt and hatred for Miranda), does not mean there are not factually and morally compelling cases for its application. The pattern of disregard in Undie’s case is pretty shocking, despite all the hot air right wing idiots expelled at the time.

  5. emptywheel says:

    Also I forgot to mention 2 other things the defense is alleging here:

    1) That the govt interviewed someone (presumably a hospital worker) in July and got what the defense claims is info on statements that should have been constitutionally protected.

    2) That govt agents gave contradictory testimony to the GJ.

  6. emptywheel says:

    @bmaz: Of course, the RESULT of that is most likely be to chip away at Miranda rather than to just say, well, you fucked up, you’ve got to try him just with witnesses from the airplane (which the defense basically argues in one of the filings–they seem to be pushing to make sure one of the govt agents can’t testify).

  7. MadDog says:

    “…This filing seems to suggest that some of this information is exculpatory, but is privileged (If it were really “otherwise not discoverable,” then why would it be included in this filing?). And they don’t even bother to say what kind of privilege. Is this a back-door state secrets declaration?…”

    What really strikes me, and I give full credit to EW for leading me down this path, is just how unusual it appears to me that the government is claiming “privilege”, but apparently either won’t disclose it or it is in the classified portion of their filing and unavailable to either the defense or the public.

    In either case, since when can the government’s claim of privilege itself be considered a “secret” and not disclosed? How can this be?

    I await the replacement of my ignorance by any and all of the fine folks who inhabit Rancho Emptywheel.

  8. MadDog says:

    @MadDog: And also I find the essentially circular Catch-22 argument in the government’s protection order filing to really tickle my funnybone. /s

    As in, the evidence might be exculpatory, but citing the Supreme Court’s ruling in Roviaro, the government insists that the defense must first prove that the government’s evidence is indeed exculpatory before government’s “privilege must give way”, and since the government claims that evidence is classified, the defense should not get to see it.

    Marvelous, simply marvelous! /s

  9. rugger9 says:

    It’s what happens when the state secrets privilege is abused. Even in its initial use, the purpose was to cover up malfeasance.

    However, EW does bring up a good point: there are lots of witnesses, there is no question he did what he did, and as far as I know [not being a lawyer], there wouldn’t be much Abdulmutallab could argue, since he was caught red-handed [or something like it]. Note that none of this requires fed input to prove.

    The only feasible case I could see the defense making here is one of entrapment [although maybe the lawyers can tell us other theories that might work], kind of like the Fort Dix case where the informant set the whole thing up. The strange cast of characters [well dressed man, for example, especially setting up the red herring at Schiphol] and his connected dad may be embarrassed by Adbulmutullab’s conviction, but unless someone else is getting arrested here, I’m not sure if A’s trial is affected. A probably has more to fear about being “silenced” since these characters will not want their laundry aired out. So, what the defense may do in order to prove entrapment is to show that the USG agents set this up. After all, we just had the whoop-de-do report on the successes of the counterterrorism program and maybe the USG needed another feather. In that case, the communications and [possibly] exculpatory info would become important for the defense.

    FWIW, if the job is to get rid of terrorists, the USG doesn’t need to engage in games like this, A was caught with the pants down here. [Yeah, I went there, sorry] It seems that the DOJ is trying to fluff this up [like the Library Tower plot Shrub used as proof his warrantless wiretapping “worked”] into something it doesn’t need to be. Why? If they were building a case on someone else, why make sure that the target knows they are targeted? Forewarned is forearmed, after all.

    If it’s kabuki to justify police state activity, then cases like this can be used to chip away at our 4th and 5th Amendment rights.

  10. emptywheel says:

    @rugger9: There have been reports that he could never have blown up the plane. That’s why I’m interested if someone in AQAP was caught on tape saying he was just a dorky kid but they could use him to test a new attack protocol. In other words, he’d be guilty of all sorts of terrorist violations, but not the WMD that they need to use to trump that up to something that will effectively be a life sentence.

    This guy is, in many ways, similar to Richard Reid. But Reid had a bunch of terrorists claiming he was the big bogeyman so THEIR torture would be lessened. And he was captured at a time when he wasn’t gonna get real due process. So he pled.

    It appears Abdulmutallab isn’t going to do that, which makes this whole terrorism trial thing more difficult.

  11. rugger9 says:

    Also emptywheel@14: I’ll agree with the premise here, but if we are looking at Abdulmutullab, the fact that he wouldn’t be able to down the plane is probably irrelevant, HE thought he could. We don’t know if that detail emerged in questioning and when. The question that puzzles me is how the government information that they are trying to hide could help A given what is already there for forensics and witnesses. Is this graymail in action?

  12. harpie says:

    I freely admit I don’t understand the why’s and wherefor’s here very well.
    That said, if Adbulmutullab had not been “caught”, someone would have had to come up with some other “reason” for the US government drone strikes in Yemen.

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