The WaPo reports that Judge James Pohl has just severed Ramzi Bin al-Shibh from 9/11 trial, creating two 9/11 trials. He did so for two reasons: because he could not quickly resolve whether the FBI investigation into defense attorneys has compromised his representation, and because the court has not yet determined whether he is competent to stand trial.
Army Col. James L. Pohl said the court needs to resolve whether Binalshibh has the mental capacity to participate in a trial and whether he needs another lawyer because of a potential conflict of interest after theFBI questioned members of his defense team.
These issues “are not expected to be completed in the near term,” Pohl said in his order.
While both issues are emblematic of the clusterfuck that is Gitmo, I’m particularly struck by the uncertainty whether bin al-Shibh is competent.
Earlier this year, prosecutors asked the judge to evaluate Binalshibh after he repeatedly interrupted court proceedings and had to be removed because he ignored warnings to stop the disruptions. However, neither the government nor Binalshibh’s lawyer argue that he is mentally incompetent.
“The judge’s decision today seems to indicate that the issue of competency is still open,” [bin al-Shibh lawyer James] Harrington said. “We have to clarify that with him.”
After all, the entire point of the torture program was to break these men. They succeeded in doing so with bin al-Shibh (that is confirmed by other sources). But now they can’t try him — it sounds like this severance is probably a tacit admission he can never stand trial, for a variety of reasons.
I would much prefer civilian justice, and have said so numerous times. But this Kangaroo Court in Gitmo has sure succeeded in demonstrating all the problems with the US counterterrorism approach.
The government has made 10 of the videos showing the force-feeding of Abu Wa’el Dhiab available to his lawyers. They are reportedly watching the video this weekend.
In a piece seemingly meant to diminish concerns about the claims the government tortured detainees, in the guise of force-feeding them, to break up a large hunger strike last year — and to pre-empt whatever claims his attorneys will make after viewing the videos – Southern Command Commander Marine Gen. John F. Kelly gave an interview to the AP. In it, he made the absurd claim that Gitmo does not force feed anyone.
Military officials, who call the hunger strike a propaganda stunt, reject the phrase “force-feeding.” They say the video will show nothing more than guards and medical personnel doing their jobs in a difficult situation.
“We don’t force feed anyone,” said Marine Gen. John F. Kelly, who oversees the prison as commander of U.S. Southern Command.
Worse, in an apparently effort to redefine hunger strike as he also redefined force feed, Kelly called hunger striking “a joke.”
“The whole hunger strike thing was kind of a joke anyway before. Now it’s based on nutrition and a medical exam as opposed to missing meals,” he said.
The general said “very few” detainees now qualify for the feeding procedure and he believes none are truly on hunger strike — “if the definition of a hunger striker is someone who is no-kidding attempting to hurt themselves by starvation.”
Of course, the hunger strikes aren’t about “attempting to hurt themselves by starvation.” They are attempts to regain some sort of autonomy and dignity and — yes — to call attention to the injustice of detaining men who could be released for over a decade.
Whether a judge will ultimately rule that force feeding, as done to the men most committed to hunger striking, amounts to the water torture or not, Kelly’s disdain for the hunger strikers lays bare the coercion involved.
But before I talked about what made it into the bill, I’d like to highlight what isn’t in it: language requiring the Intelligence Community to consider climate change. The minority views reveal,
One of the bill’s weaknesses is that it does not do enough to enhance analysis of the national security implications of climate change, which the Intelligence Community refers to as environmental indications and warning. Whether by driving competition for scare [sic] resources, by opening the Arctic, or by increasing sea level and storm surge near our naval installations, climate change will have profound, destabilizing effects which need to be understood, anticipated, and accounted for. There may be disagreement about the causes of climate change, but the national security consequences are so significant that they cannot be ignored.
The intelligence community has been delving into this area in recent years (and appear to have renamed climate change “environmental indications and warning”). But thus far, the IC has stopped short of treating climate change as the threat to the US it clearly represents.
It appears Democrats on HPSCI tried to change that. And Republicans refused.
Someday the climate deniers will be held responsible for leaving our country vulnerable. And the Democrats will have left a record of those who should be held responsible.
Col. Morris Davis is, at least for my money, an American hero. He served and fought not only for his country, but for the Constitution he swore to protect. The subject of what happened to him at the hands of the very government he defended deserves a much longer, and deeper, dive than I have time for in this post. We will likely come back for that at a later date as it seems as if the legal case Col. Davis brought to correct the wrongs done to him will likely go on forever.
And the going on forever part is the subject of this post. Col. Davis was scheduled to have a hearing in United States District Court in Washington DC tomorrow in front of Judge Reggie Walton. But the hearing was postponed. And that is the problem, this is the FOURTEENTH (14th) TIME hearing on Col. Davis’ case has been delayed. One delay was due to a conflict on Judge Walton’s part, and one because the offices of Davis’ attorneys at the ACLU in New York were substantially damaged by Hurricane Sandy. Other than that, the delay has been at the hands of an intransigent and obstreperous DOJ. If the actions of the DOJ in relation to Col. Davis are not “bad faith”, it is hard to imagine what the term stands for.
Now, to be fair, it appears the latest delay was at the unilateral hand of the court, as yesterday’s minute entry order reads:
In light of the fact that potentially dispositive motions remain pending, it is hereby ORDERED that the status hearing currently scheduled for Friday, February 21, at 9:15 a.m. is CONTINUED to a date and time to be determined by the Clerk.
The problem with that is that the “dispositive motions” the court speaks of as being “pending” have been “pending” for a VERY long time, since July of last year. And the case itself has been going on since the complaint was filed on January 8, 2010.
Why is it taking so long you ask? Because of the aforementioned bad faith and obstreperousness of the Department of Justice, that’s why. To get an idea of just what is going on here, a little background is in order. Peter Van Buren gives a good, and relatively brief synopsis:
Morris Davis is not some dour civil servant, and for most of his career, unlikely to have been a guest at the Playboy Mansion. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis stated he would not use evidence obtained through torture. When a torture advocate was named his boss, Davis quit rather than face the inevitable order to reverse his position.
Morris Davis then got fired from his research job at the Library of Congress for writing an article in the Wall Street Journal about the evils of justice perverted at Guantanamo, and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled against the Obama Administration’s objections that the suit could go forward (You can read more about Davis’ struggle.)
Moving “forward” is however a somewhat awkward term to use in regards to this case. In the past two years, forward has meant very little in terms of actual justice done.
Yes, you read that right. Col. Davis was fired from the job he truly loved at the Congressional Research Service because he, on his own time as a private citizen, exercised his First Amendment right to speak. As one of Davis’ pleadings puts it:
Col. Davis was unconstitutionally removed from his position at the Library of Congress’ Congressional Research Service for writing opinion pieces in the Wall Street Journal and the Washington Post expressing his nonpartisan, personal views on the failures of the American military commissions established to try detainees at Guantánamo Bay, Cuba. His speech lies at the very core of the First Amendment and exemplifies the kind of speech that federal courts have been most vigilant in protecting from government retaliation.
The full pleading that quote came from, Col. Davis’ response to the government’s motion for summary judgment (one of the “pending dispositive motions”) can be found here and is a good read if you are interested in more background.
That is exactly what happened and what is at stake. And you do not have to take my word for it, Judge Walton thinks it is a solid and valid claim too. Here is language from Judge Walton in an order in late January 2010, not long after the case was filed:
The Court is satisfied that the plaintiff has established, at least based on the record before the Court at this time, that the likelihood of success on the merits and public policy prongs of the preliminary injunction standard weigh in his favor. Essentially, the record before the Court suggests that the plaintiff was terminated immediately after two specific opinion editorials he authored were published in national newspapers. Regardless of the defendants’ contention to the contrary, it appears that the content of the plaintiff’s published opinions was one of the reasons, if not the primary reason, he was fired, i.e., because the plaintiff took a position on the prosecution of detainees being housed at the United States military’s Guantánamo Bay facility which the Congressional Research Service felt would call into question its impartially as to any policy recommendation it would make and any research it would conduct on that issue. This conclusion is supported by the fact that the opinion articles were specifically referenced in the plaintiff’s termination letter, and also the timing of the letter, which was issued only several days after his writings were published. The plaintiff’s likelihood of success position therefore is well-founded, at least with respect to the record the Court now has before it. And as to the public interest prong, it cannot be questioned that government employees retain First Amendment rights. (citations omitted)
So, there is really no question but that protected First amendment rights were involved, and that Col. Davis was wrongfully fired for exercising them. Makes you wonder why the DOJ would string him out and fight so hard in a case that is only about the rights and not even about the money damages he suffered as a result (that would have to be litigated in a separate action).
As the graphic at the top questions, why is the DOJ willing to give free speech rights to a terrorist at Guantanamo and not to Col. Morris Davis? Bad faith is the answer. Complete, scandalous, bad faith.
Today’s New York Times dutifully bleats to us that Afghan President Hamid Karzai has been “warned” over his plan to release 88 prisoners from the Detention Facility in Parwan over the objections of the US. The warning:
“If these releases go ahead, it will do irreparable damage to the relationship,” said Senator Lindsey Graham, Republican of South Carolina. “There will be a backlash in the U.S. Congress.”
Those doing the warning were hypocrisy tourists Lindsey Graham and John McCain. Missing their third amigo, Joe Lieberman, the duo settled for stand-in John Barrasso to join them on the trip. It appears, however, that Barrasso opted out of the opportunity to open his mouth, as he is not quoted in the Times piece and doesn’t appear in the video interview ToloNews conducted while they were in Kabul:
The hypocrisy emanating from [Linsey, as he is identified in the ToloNews video] Graham and McCain is staggering. Back in December of 2011, Graham led the charge to put remarkably strong rights protection for the Parwan prisoners into the NDAA, as Marcy noted, but Obama then proceeded to gut that language with his signing statement.
The entire issue of the prison at Parwan and the “independence” of Afghanistan to make its own decisions on the fate of prisoners put into the facility by US forces has been a point of contention for years and has seen significant deception on the part of the US. For example, in September of 2012, the US pretended, as they had several times before, to hand over “complete” control of the prison to Afghans, but still claimed to have veto power over the release of any prisoners. The US pretended again in March, 2013 to do the handover of the prison.
The current controversy again seems to come down to whether this veto power still exists and to the underlying wish of the US for Afghanistan to practice indefinite detention without charges, which Afghanistan has resisted instituting.
The relevant section 1024 of the NDAA calls for review of Afghan prisoner status:
But the NDAA wasn’t all bad when it comes to U.S. military detention policy. In fact, section 1024 of the law, spearheaded by Senators John McCain and Lindsey Graham, provides detainees held indefinitely in Afghanistan with the right to a military defense lawyer and a neutral military judge to evaluate whether their detention is lawful and necessary. The provision was not particularly controversial and garnered little media attention; Congress apparently understood that for the U.S. to maintain any legitimacy while imprisoning some 3,000 Afghans in their own country it has to provide them basic rights to defend themselves.
As Marcy noted, though, Obama’s signing statement sought to undercut that authority for an Afghan review. Graham and McCain, on their hypocrisy tour, appear to be agitating for the US veto power that Afghanistan never seems to have agreed to. From the ToloNews article accompanying the video: Continue reading
I would be shocked if, after today’s appeal hearing in Umar Farouk Abdulmutallab’s trial, he were granted a new trial on competency grounds. On the panel, David McKeague seemed completely skeptical on legal grounds, Jane Branstetter Stranch seemed skeptical on the central competency issue, leaving Curtis Collier (a District Judge on loan from E TN) with the only apparent sympathy for the argument at hand in the least.
As I explained back in May, The central question was whether Abdulmutallab was competent to defend himself. He had fired his federal defenders in September 2010 and the court named a standby counsel, Anthony Chambers, for him. In August of the next year, Chambers submitted a sealed motion arguing Abdulmutallab was not competent. Judge Nancy Edmunds had a hearing on August 17, 2011 and while she addressed several questions to Abdulmutallab, she did not have him evaluated for competency. When he plead guilty on October 12, 2012, she asked standby counsel if he thought Abdulmutallab was competent to plead guilt and after he assented, she accepted the guilty plea.
Both Judge McKeague, to a lesser degree Stranch, and prosecutor Jonathan Tukel emphasized that last point in their discussion: given that the same standby counsel who had submitted the motion on competence did not re-raise it at the plea, they argued, it suggests the counsel agreed with Edmunds’ determination that Adbulmutallab was competent. Abdulmutallab’s attorney Travis Rossman argued that the Chambers could not, at that point, argue his client was totally crazy. Moreover, he argued, the standard for a defendant representing himself was higher and must be concurrent determination (meaning if he were crazy in August 2012 but competent in October 2012, it would still be an issue for a defendant representing himself). But that detail will almost certainly be the one the judges point to to reject this appeal.
Judges McKeague and Stranch also examined a different question. Some of the most obviously crazy things Abdulmutallab did (though this wasn’t and couldn’t have been Chambers’ original argument) came leading up to trial, most notably his bid to wear a Yemeni dagger to his trial. Abdulmutallab intended to martyr himself, Stranch noted, couldn’t these actions be interpreted as an effort to use the trial to make a point of his faith? McKeague pointed out that Abdulmutallab had done some pretty “well thought out logical things” leading up to his attack. He later asked whether his conduct at trial wasn’t consistent with what you’d expect a jihadi to do, to use the trial as a platform to present his views?
Rossman contested that point — noting that had Abdulmutallab let the trial play out, he would have had many more opportunities to parade his jihadi views. McKeague responded that refusing counsel left Abdulmutallab more empowered to make jihadi statements rather than mount a defense. Rossman correctly pointed out this was all getting into speculation about how a competent jihadi would act.
While it didn’t come up in the hearing, remember that the statement Abdulmutallab ultimately made was remarkably muted and took up less than 15 minutes, so by measure of his exploitation of his soapbox, the UndieBomber failed.
All that’s a way of saying that much of the hearing focused on how a competent jihadi would use his decision to represent himself to further his goals of jihad.
There is, however, a significant weakness in the government’s case, one Tukel made obvious with the central ploy he made in his argument.
Carrie Johnson uses the arraignment of Abu Anas al-Libi as an opportunity to consider the success of the High Value Interrogation Group. She weighs the following details:
But I think we need to take a step back.
First, while Johnson gives a list of some of the interrogations conducted by HIG, it’s not comprehensive (for example, it doesn’t include Umar Farouk Abdulmutallab, with whom HIG was used in an ad lib capacity — it had just started; and it doesn’t include Manssor Arbabsiar). And it’s not clear we would know every time HIG gets used. For example, there were unnamed officials present at Ibragim Todashev’s death; given that we know HIG was used from the start with Dzhokhar Tsarnaev, it’s fair to at least ask whether any HIG members were present, and whether they remained in the room when Todashev was killed.
That expanded list of HIG interrogees quickly gets you to the question of consequences for HIG interrogees. Just from this possible list, you get questions such as,
And these issues, plus the refusal of lawyers for Dzhokhar all could endanger convictions — and certainly, death penalties (which has already been taken off the table in al-Libi’s case) — in these cases.
Then there’s the question of what we’re after: the truth, or exploitation?
Exploitation is the use of interrogations not just to get intelligence, but also to support propaganda and/or generate informants. If exploitation is HIG’s goal, we might raise questions about whether both Abdulmutallab and Tsarnaev really implicated Anwar al-Awlaki of their own accord. In the former case, both non-HIG confessions did not implicate Awlaki as anything but an inspiration. In the latter, we know Tamerlan was also influenced by right wing propaganda. If exploitation is the goal, should we really believe the government story about the Scary Iran Plot, particularly given that most details of the “plot” — such as the restaurant targeted in Georgetown — came from our informant in the first place?
I don’t know the answer to these questions. But they seem to be ones we need to answer whether HIG works or not — to say nothing of whether a Democratic society should embrace HIG or not.
As Josh Gerstein reported last week, the Public Defenders Office for Southern District of NY and DOJ spent much of Tuesday and Wednesday fighting about whether Abu Anas al-Libi should get a lawyer. On Friday, Lewis Kaplan (who also presided over the Ahmed Ghailani trial) decided he should not.
Then, sometime over the weekend (that is, no more than 2 days after DOJ won the fight to continue to keep al-Libi detained with no lawyer) al-Libi was brought to NY, though he won’t show up in court until tomorrow.
One excuse the government is giving for the apparent change in plans is al-Libi’s health problems.
Al-Libi has longstanding health issues and will get medical testing while in custody to determine whether he needs treatment, U.S. officials said.
As Gerstein also noted, al-Libi’s floating interrogation came to an end before such time as the Red Cross would normally have opportunity to inspect the conditions of his detention.
All of which stinks.
I think several things may have happened:
Meanwhile, the press is generally reporting al-Libi’s (secret, over the weekend) arrival in NY as if it hails a new day, when the arguments the government made to detain him nevertheless remain unchallenged.
Update: This makes sense. Al-Libi had stopped taking food or water.
The decision to bring the suspect, Nazih Abdul-Hamed al-Ruqai, to New York came after he stopped eating and drinking aboard the Navy vessel, the San Antonio, which made his chronic health conditions worse, several officials said. Mr. Ruqai’s wife has said that her husband has a severe case of hepatitis C.
There has been all manner of commentary about the rendition and detention on a poorly functioning ship of Abu Anas al Libi. There are credulous claims about the humanity of the High Value Interrogation Group’s tactics that nevertheless remain officially classified. There’s the growing awareness that al-Libi’s case differs from Ahmed Warsame’s in several key ways. And then there’s John Bellinger, trolling the Obama Administration for violating rules the Bush Administration did not in superb fashion.
These are important questions. But they distract from another important question.
What kind of intelligence do they really expect to get from al-Libi?
The explanation for his capture has focused on his alleged role in the 1998 Embassy Bombings. While there are no statutes of limitation for murder, that’s nevertheless an event that took place over 15 years ago. Even some of the analysts we often rely on — not to mention his family — suggest he hasn’t had an active role in al Qaeda for over a decade, or at least since he returned home to Libya 2 years ago. Lisa Monaco offered weak claims about the importance of al-Libi.
During an appearance on PBS Newshour, Deputy National Security Adviser Lisa Monaco repeatedly referred to Abu Anas Al-Libi as a “member” of Al Qaeda. However, she stopped short of calling the Libyan-born Al-Libi a “senior operational leader”—a phrase which seemed to have special significance when the Justice Department evaluated the legality of lethal force against U.S. citizens and is also believed to apply to targeting of foreign nationals outside combat zones.
Newshour reporter Jeffrey Brown asked Monaco about whether Al-Libi posed an “imminent” threat to Americans, but Monaco wouldn’t say that and also seemed to avoid declaring that he was an Al-Qaeda operative or even a leader of the group.
“Al-Libi did pose a threat to the United States as a senior al-Qaida member and somebody who is also charged in an indictment for his role as part of the Al Qaeda worldwide conspiracy,” Monaco declared.
This is, at the least, a significant difference from Ahmed Ghailani (who was seized with an active cell in Pakistan and interrogated for years about that active cell before being tried for his role in the Embassy Bombings) and Ahmed Warsame (who was seized for his active role in working with AQAP and al-Shabaab), though it perhaps resembles Suleiman Abu Ghaith.
I’m not saying al-Libi had no active role in terrorism. The timing — the raid took place at the same time as the strike on Abdulkadir Mohamed Abdulkadir, who allegedly helped plan attacks in Kenya — might suggest al-Libi played some role in the Westgate Mall attack and other operations in Africa.
Perhaps the most complete explanation for why al-Libi is a current threat is this description.
An unclassified report published in August 2012 highlighted al Qaeda’s strategy for building a fully operational network in Libya. The report (“Al Qaeda in Libya: A Profile”) was prepared by the federal research division of the Library of Congress (LOC) under an agreement with the Defense Department’s Combating Terrorism Technical Support Office (CTTSO). [See LWJ report, Al Qaeda's plan for Libya highlighted in congressional report.]
Abu Anas al Libi has played a key role in al Qaeda’s plan for Libya, according to the report’s authors. He was described as the “builder of al Qaeda’s network in Libya.”
Al Qaeda’s senior leadership (AQSL) has “issued strategic guidance to followers in Libya and elsewhere to take advantage of the Libyan rebellion,” the report reads. AQSL ordered its followers to “gather weapons,” “establish training camps,” “build a network in secret,” “establish an Islamic state,” and “institute sharia” law in Libya.
Abu Anas al Libi was identified as the key liaison between AQSL and others inside Libya who were working for al Qaeda. “Reporting indicates that intense communications from AQSL are conducted through Abu Anas al Libi, who is believed to be an intermediary between [Ayman al] Zawahiri and jihadists in Libya,” the report notes.
Al Libi is “most likely involved in al Qaeda strategic planning and coordination between AQSL and Libyan Islamist militias who adhere to al Qaeda’s ideology,” the report continues.
Al Libi and his fellow al Qaeda operatives “have been conducting consultations with AQSL in Afghanistan and Pakistan about announcing the presence of a branch of the organization that will be led by returnees from Iraq, Yemen, and Afghanistan, and by leading figures from the former LIFG.” The LIFG refers to the Libyan Islamic Fighting Group, an al Qaeda-linked jihadist group formed in Libya in the 1990s.
The suggestion that al-Libi might be the liaison between Ayman al-Zawahiri and extremists in Libya (extremists we helped to overthrow Qaddafi) is more interesting, particularly given Libya’s public objections to al-Libi’s rendition. Perhaps the ultimate plan is to hold al-Libi responsible for Benghazi (though interrogating him in a floating prison might endanger any charges if he was involved, which would be a big problem given the need for some finality on Benghazi). But it might raise interesting questions about whether the extremists we helped in Libya really constitute al Qaeda, or instead constitute a legitimate force within that country.
As of now, however, the US public story is that we captured this guy who has been living in the open for two years for a crime he committed 15 years ago. And that instead of whisking him immediately to NY to stand trial for that crime, we are instead pissing off the Libyan government and nudging up against a slew of domestic and international laws by conducting a floating interrogation from which we might learn only decades old facts. If that’s the story (and again, I suspect the government at least claims there is more), it makes all the legal and ethical issues surrounding his detention all the more problematic.
We do a lot of things here at Emptywheel including occasionally, goofing off. But our primary focus has always been the intersection of security issues, law and politics. I think I can speak for Marcy and Jim, and I certainly do for myself, we would love it if that intersection were not so critical in today’s world. But, alas, it is absolutely critical and, for all the voices out there in the community, there are precious few that deep dive into the critical minutiae.
Today we welcome a new and important player in the field, the Just Security Blog. It has a truly all star and broad lineup of contributors (most all of whom are listed as “editors” of one fashion or another), including good friends such as Steve Vladeck, Daphne Eviatar, Hina Shamsi, Julian Sanchez, Sarah Knuckey and many other quality voices. It is an ambitious project, but one that, if the content already posted on their first day is any indication, will be quite well done. The home of Just Security is the New York University School of Law, so they will have ample resources and foundation from which to operate for the long run.
Ironically, it was little more than three years ago (September 1, 2010 actually) that the Lawfare Blog went live to much anticipation (well, at least from me). Whether you always agree with Ben Wittes, Bobby Chesney, Jack Goldsmith and their contributors or not, and I don’t always, they have done this field of interest a true service with their work product, and are a fantastic and constantly evolving resource. There is little question but that Just Security intends to occupy much of the same space, albeit it in a complimentary as opposed to confrontational manner. In fact, it was Ben Wittes who hosted the podcast with Steve Vladeck and Ryan Goodman that serves as the multi-media christening of Just Security.
Orin Kerr (who is also a must read at Volokh conspiracy), somewhat tongue in cheek, tweeted that the cage match war was on between Lawfare and Just Security. That was pretty funny actually, but Orin made a more serious point in his welcome post today, and a point that I think will greatly interest the readers of Emptywheel:
Whereas Lawfare tend to have a center or center-right ideological orientation, for the most part, Just Security‘s editorial board suggests that it will have a progressive/liberal/civil libertarian voice.
From my understanding, and my knowledge of the people involved, I believe that to be very much the case. And that is a very good thing for us here, and the greater discussion on so much of our work.