Are They Trying the 9/11 Conspirators in NYC to Get Material Support Charges?

There are a lot of reasons it makes sense to try the 9/11 plotters in NYC. But as I was reviewing this article on the five who will be charged in NY, I wondered whether one central reason the Obama Administration is doing so is for greater justification for material support for terrorism charges.

In addition to the two big names being charged in NY–KSM and Ramzi bin al-Shibh–the three others are:

  • Walid bin Attash: Allegedly participated in early casing of targets, also admitted to involvement in Cole bombing
  • Ali Abdul Aziz Ali: Allegedly transferred $100,000 to the hijackers and facilitated their travel to the US
  • Mustafa Ahmad al-Hawsawi: Allegedly served as money-man for the attack and received unused money from hijackers in days before the attack

It’s the latter two that have me wondering. Both claim to have had no advance knowledge of the attack. Both claim to have some separation from al Qaeda itself (a claim that KSM has supported in the case of Ali, who is KSM’s nephew).

In other words, these guys are alleged to be financiers with (they claim) little operational knowledge of the attack itself. While I presume the government may have evidence refuting that claim, the ultimate backstop here would seem to be a material support charge which–the Holy Land Foundation trial makes clear–has been used to give wide leeway to prosecutors to charge those for whom intent to commit terrorism may not be easy to prove.

Now consider something Assistant Attorney General David Kris said when testifying before Congress regarding Military Commissions–in advance of changes the Obama Administration made to Military Commissions which in turn led to Friday’s announcement.

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy. However, we believe conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions, and that cases that yield material support charges could often yield such conspiracy charges. Further, material support charges could be pursued in Federal court where feasible. [my emphasis]

I think the Military Commissions, as currently incarnated, may not take as stark a view as Kris. But his statement makes it clear that those involved in discussions of where these men would be tried believed that material support charges were not a violation of the law of war, and therefore should not be charged in Military Commissions.

So if you want to charge Ali and Hawsawi and be sure the charges will stick, does that mean you’ve got to charge them in civilian court?

Update: From DOJ spokesperson Dean Boyd:

The reforms that Congress made to the Military Commissions Act which were ultimately enacted into law recently, kept the charge of material support as a charge in the military commissions system. So material support charges remain a possibility in both federal trials and military commissions.

Update: Here’s the referral process the DOJ published in July. It lists the following as factors for where you prosecute:

Factors for Determination of Prosecution. There is a presumption that, where feasible, referred cases will be prosecuted in an Article III court, in keeping with traditional principles of federal prosecution. Nonetheless, where other compelling factors make it more appropriate to prosecute a case in a reformed military commission, it may be prosecuted there. The inquiry turns on the following broad sets of factors, which are based on forum-selection factors traditionally used by federal prosecutors.

A. Strength of Interest. The factors to be considered here are the nature of the offenses to be charged or any pending charges; the nature and gravity of the conduct underlying the offenses; the identity of victims of the offense; the location in which the offenses occurred; the location and context in which the individual was apprehended; and the manner in which the case was investigated and evidence gathered, including the investigating entities.

B. Efficiency. The factors to be considered here are protection of intelligence sources and methods; the venue in which the case would be tried; issues related to multiple-defendant trials; foreign policy concerns; legal or evidentiary problems that might attend prosecution in the other jurisdiction; and efficiency and resource concerns.

C. Other Prosecution Considerations. The factors to be considered here are the extent to which the forum, and the offenses that could be charged in that forum, permit a full presentation of the wrongful conduct allegedly committed by the accused, and the available sentence upon conviction of those offenses.

59 replies
  1. emptywheel says:

    Note: material support is limited to US jurisdiction. But since both Ali and Hawsawi were allegedly cabling money back and forth to the US they would presumably qualify.

    • KevinFenton says:

      Ali didn’t get any money from the US, although he sent several payments there. Al-Hawsawi didn’t send any money to the US, although he received some money back at the end (together with a couple of other things sent by post). I guess just that might qualify them, though.

  2. Mary says:

    Since Steven’s opinion, this has to have been a very big issue. Al-Nashiri is going to push the envelope on this, though, won’t he? If they are going for MC for his Cole involvement, but he wasn’t a active member of the assault on the Cole, then it looks as if material support/etc. is what they are going to be looking at there, too. And he wasn’t taken on a battlefield in Afghanistan or Iraq IIRC. Not that I don’t get them all blurred together – I wish I’d made at least cyber files with a couple of years back.

    OT – Following close on the heels of Gates refusing the release of the US torture pictures, Obama is in China telling them he’s a big supporter of “non-censorship.”

    “I think that the more freely information flows, the stronger the society becomes, because then citizens of countries around the world can hold their own governments accountable,” Obama told students during his first-ever trip to China. “They can begin to think for themselves.”

    Obama then argued for the destruction of all pictures of Chinese government atrocities. Puzzled students went back to look up the word “Hope” again. “It obviously doesn’t mean what we thought it meant” said a surprised student, who requested anonymity because he was not sure if he was discussing classified matters or not.

    • emptywheel says:

      Yeah, Nashiri is the big question. I think I posted on Friday that one of his attorneys points out that the bombing was originally investigated by the FBI, therefore not as a military crime.

    • emptywheel says:

      And the irony about Nashiri is that that WAS fully investigated before anyone was tortured.

      So there’s presumably a nice neat FBI indictment all wrapped up (even if it probably relies on Yemen’s investigation, which is suspect).

      • KevinFenton says:

        I don’t think there’s an FBI indictment for al-Nashiri for the Cole bombing. Al-Badawi and al-Quso were definitely indicted in the US, and maybe a couple of others were as well. The official story is that the US did not have a good enough understanding of the case to connect al-Nashiri to it fully. He was first mentioned in the press in connection with the bombing in December 2000 and the FBI seems to have known about his role more fully by the middle of the next year.

        • emptywheel says:

          No, but the 9/11 Commission cites FBI reports on it. So they’ve got clean (depending on what the Yemenese gave them) FBI investigative material from before they captured him.

          • KevinFenton says:

            Aliases for al-Nashiri were used to rent (I think) a car (used to tow the boat to the shore) and a house used by the bombers. This was discovered by the joint FBI/Yemeni investigation in late 2000 (bureau must have documents). At the military commission hearing in 2007, al-Nashiri claimed names associated with him might have been used, but if they were, it was by an associate without his permission.

            Incidentally, he claimed he was forced to confess to the bombing under torture, and did not do it. However, he admitted receiving money from bin Laden before the bombing, buying the boat, buying some explosives, knowing bin Attash (a “regular guy who is jihadist”), knowing the other bombers, and giving them the boat.

            Finally, the Cole bombers coordinated their actions using an al-Qaeda communications hub in Yemen (prominent in James Bamford’s last book), which the NSA was monitoring. It had already been involved in the embassy bombings and was later involved in 9/11 (Almihdhar lived there with his wife and possible child/children). Presumably, the NSA must have a bunch of material about all this, but isn’t sharing. It’s the same hub whose exploitation Bush and other administration officials cited in response to the NYT’s exposé of warrantless wiretapping in December 2005.

            • emptywheel says:

              Let’s just say I’d like to see Nashiri get a full antagonistic look at that evidence.

              I realize there’s a lot there–though Nashiri’s confession is not that cut and dry. But the whole Cole bombing is already shrouded in so much doubt bc of the Intell embarrassment around it, that I don’t necessarily trust the evidence.

              Incidentally, one of the MOST interesting MC detainees is Noor Mohammed. He’s the guy who was captured with Abu Zubaydah and went on to testify that Abu Zubaydah was no one’s mastermind. The ties between Khalden and AQ are dicey, which means this case might be a preview of any trial they ever decide to give AZ (and maybe a test of how convincing that case is).

              I sort of wonder whether some of these MC names aren’t designed to push them into accepting a plea.

  3. Mary says:

    I think Obama’s making a huge bad decision, trying al-Nashiri in a MC. Apparently he’s heard way too many ex-Vietnam war supporters and decided that the only problem with the Solomon splitting the baby story is that Solomon didn’t go ahead and just hand off half a bloody baby to each claimant.

    • earlofhuntingdon says:

      Someone please tell Mr. Obama that Solomon’s gambit was a ruse: Solomon never intended to kill the baby, distribute half to each claimant as an expression of divine compromise, and wash his hands of the matter. He knew only one claimant could be right and that she would rather give up her claim than see her child suffer or die. Doing so, she would reveal the truth and the bitter selfishness of her opponent.

      Looking at Obama’s abhorrence of conflict, methinks that Mr. Obama would give the baby to the bitter opponent, in hopes that that would satisfy her and end her bitterness. He would assuage his guilt with the thought that the true mother – liberals if you will – would be happy that her child had a home, instead of being split in two by government edict.

      The inversion of logic and justice doesn’t sound wrong to these people. It sounds pragmatic.

  4. Jim White says:

    I can’t decide what level of snark tag to attach to what I say below, but here goes:

    Given what we know about the effects of torture on terrorist recruitment, did Obama quash the release of the additional torture photos to prevent himself being prosecuted on a material support charge? Or was it to protect those carrying out the torture against a charge?

    As far as that goes, are the folks sitting at computer screens in Tampa controlling the predator drones also guilty of material support? Is McChrystal guilty through establishing the policy?

    • emptywheel says:

      Material support is based on supporting one of the entities the State Department has designated a terrorist organization–you know, sort of like Chiquita supporting the AUC in Colombia?

      So long as DOS gets to make up the list of terrorists, I think Obama and McChrystal are safe from this particular charge.

  5. Mary says:

    This isn’t the place for it and it’s OT, but I swear the longer Obama is in office, the more he sounds like Bush – apparently the war in Afghanistan is really hard – on him.

    …one of the hardest things about my job is ordering young men and women into the battlefield. I often have to meet with the mothers and fathers of the fallen, those who do not come home. And it is a great weight on me. It gives me a heavy heart.

    Poor Obama. Hard to send kids off to die just so he can hold onto his claim of being a centrist and bolster his campaigning for 2012.

    • emptywheel says:

      Only he has been doing it. Bush used to go to Reed. But Obama has seen coffins come in to Dover and visited the grave sites of those killed in Iraq and Afghanistan. Plus the unplanned trip to Ft. Hood.

      I sincerely think all those HAVE affected his thoughts as he weighs what to do in Afghanistan. That’s no guarantee he’ll make the right decision. But I think they are part of the reason why we’re demanding certain things from Karzai before we agree to stick around.

      • earlofhuntingdon says:

        Let’s hope Obama doesn’t split the baby by refusing new “troops”, but sends a like number of mercenaries instead. Passing a defense appropriation by using the longtime Bush ruse of the supplemental appropriations process, which is regarded as precluding debate, would make such expenditures easier to hide.

      • Mary says:

        I think he’s much better with photo ops and rhetoric, but IMO he’s had a two year stategerizing period, including campaign time where he had some of the best minds making themselves available to him and he was getting govt briefings, in which to come up with a game plan that is not re-election based, and he’s abdicated that aspect.

        I think we are not seeing leadership down the hard paths, we are seeing Obama’s version of triangulating. Talk tough vis a vis Karzai to keep that ball in the air, do something surge-ish to keep that ball in the air, leak out that you’re not happy with what options you are being given to keep the ‘buck passed’ ball in the air, etc.

        My bias shows – I do think he’s an empty suit. He may not be, but I don’t see a lot of substance in things like his trips to Dover and Ft Hood. Hopefully they’re there and I just don’t see them.

        • earlofhuntingdon says:

          I agree with the empty suit characterization in that Obama’s greatest talent seems to be to fit in, to not stand out from the crowd, except by beating the in-crowd in achieving whatever it values most, for example, high academic achievement, rhetorical flight, fund-raising and electoral success.

          Unfortunately, the Beltway norms Obama inherited after eight years of George Bush are dysfunctional: the national security state, corporate control, lobbyists ueber alles, usw. Rhetoric aside, that doesn’t leave room for middle America and the rule of law, both of which remain in critical condition. Championing such things requires doing what he has made his life avoiding, standing out from the in-crowd, actively and successfully opposing its interests because he personally and politically concludes that they are wrong or harmful.

  6. LabDancer says:

    This first part isn’t really germane to the main point of your post here, but really: that piece in the CSM by Richey is the product of combining the ethics of lazy amateurism with the ingredients of a shell game, throwing up the whole mess into a crock & cranking the micro-wave on high for a minute. All he’s done is go into the publicly-accessible materials from the CSR tribunals, a categorically distinct context with a categorically distinct & markedly relaxed threshold, so much so that even calling it a kangeroo court would be to insult ‘roo courts, lift out response statements & surmise those provide some critical insight & relevance to the forthcoming criminal trials. Just look at all the conditioners merely in the intro: “offer” a “rough” preview of the “kind” of case that “may” emerge; to all of which I say: balls — & not at all in the nouveau sense used by Stephen Colbert.

    Enough on that; on to your own offering.

    IMO it’s quite possible you’ve caught on to something here: as in, that the Kris analysis, a brief summary of which you’ve presented here [sufficient for the purposes of your own premise], was laid out for consideration and approval to whoever in the Obama administration is empowered to approve of such a plan [I’m thinking primarily of, in no particular order, the WH NSA, WH legal counsel of-the-moment, Kris of course, AG Holder in lieu of Obama’s own selection for head of OLC, and ultimately Obama. And the implications are more than a little insidious, given the practical differences that 8 years of Bush administration perversity has brought about between civilian courts and military courts.

    As Kris said to Congress, he [according to your premise, the administration], appears to be taking in essence a ‘gamer’s’ view of the lay of the land:

    [a] one or more big holes and/or basic defects standing in the way of attempts to prove such a conspiracy in the publicly-accessible civilian courts;
    [b] a pretty straight-forward, maybe irrefutable, case for material support, one that is in no way dependent on anything the defendant has said that’s in any way at all even arguably open to attack as tainted;
    [c] a [well-founded] limitation from non-public-access military courts considering material support; and
    [d] no such limitation as to using the military court version of conspiracy in the non-public-access venue.

    And the bonus:
    [e] an opportunity to gin up the impression of non-public trial-ish hearings of conspiracy, through public demonstration of some evidentiary incidents consistent with, though not determinative of, the existence of conspiracy & that [or another] defendant’s willing participation in same.

    • LabDancer says:

      The Kris Gambit postulated:

      Example: Box cutters.

      Hey Fred — I got some boxes need cutting up; can I borrow your cutter?

      Hey Fred — We need you to get us two dozen sets of box-cutters to use as weapons to take over four airplanes we’re going to hijack to plow into the World Trade Center towers and the Pentagon and the White House.

      Hey Fred — Go down to Ace Hardware & buy some box-cutters. Don’t ask.

      A. Civilian trial of KSM

      1. 9/11 a conspiracy.
      2. KSM told al Jazeerha he masterminded 9/11–
      all voluntary; before being arrested by anyone, leave aside any US government agents.
      3. The 9/11 hijackers used box-cutters to seize the planes.
      4. Ergo: KSM guilty as a co-conspirator to 9/11.

      B. Civilian trial of Fred

      1. KSM connects with Herb.
      2. Herb connects with Arnie.
      3. Arnie connects with 9/11 hijackers.
      4. Arnie meets with Fred.
      5. Fred buys a dozen box cutters.
      6. Fred again meets with Arnie.
      7. 9/11 happens.
      8. Ergo: Fred guilty of material assistance to 9/11.

      C. Military trial of Herb

      1. A civilian court found 9/11 was a conspiracy
      and that KSM was the mastermind.
      2. A civilian court convicted Fred of material assistance to 9/11, so that Fred was a co-conspirator, witting or not doesn’t matter.
      3. Fred connects to 9/11 through Arnie.
      4. Arnie connects to KSM through Herb.
      5. Ergo …

  7. skdadl says:

    While I presume the government may have evidence refuting that claim, the ultimate backstop here would seem to be a material support charge which–the Holy Land Foundation trial makes clear–has been used to give wide leeway to prosecutors to charge those for whom intent to commit terrorism may not be easy to prove.

    Would a material-support charge be enough on its own to constitute a capital offence?

    • emptywheel says:

      Unclear. But the sentences handed down in the Holy Land trial were basically several lives imprisonment. You would presumably be able to assume Ali and Hawsawi would get the same kind of sentences.

      So, as a backstop, it’d effectively keep them in jail forever.

    • bmaz says:

      Soliciting material support for terrorism and providing material support for terrorist acts are felonies punishable by imprisonment for not more than 20 years or a fine of not more than $20,000.00, or both.

    • Garrett says:

      Capital offense or not seems relevant to how things will play out, and maybe to who was chosen for civilian court, who wasn’t, and why.

      The five selected are the five who said last November they want to plead guilty.

      Guilty pleas help get around the torture problem. As John Yoo explains it:

      The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges.

      But their desire to plead guilty appears to be dependent on getting a death penalty.

  8. Mary says:

    For anyone who wants to revisit it, here’s Steven’s opinion

    Most of this, though, is from Part V, in which Kennedy did not concur and for which we have no binding precedent other than the march of history and morality and justice over the years:

    The military commission, a tribunal neither mentioned in the Constitution nor created by statute, was born of military necessity.

    If anything, Quirin supports Hamdan’s argument that conspiracy is not a violation of the law of war. Not onlydid the Court pointedly omit any discussion of the con-spiracy charge, but its analysis of Charge I placed specialemphasis on the completion of an offense; it took seriously the saboteurs’ argument that there can be no violation of a law of war—at least not one triable by military commission—without the actual commission of or attempt tocommit a “hostile and warlike act.” Id., at 37–38.
    That limitation makes eminent sense when one consid-ers the necessity from whence this kind of military com-mission grew: The need to dispense swift justice, often inthe form of execution, to illegal belligerents captured onthe battlefield. …
    The same urgency would not have been felt vis-à-vis enemies who had done little more than agree to violate the laws of war.

    The charge’s shortcomings are not merely formal, butare indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition—at least in theabsence of specific congressional authorization—for establishment of military commissions: military necessity. Hamdan’s tribunal was appointed not by a military commander in the field of battle, but by a retired major gen-eral stationed away from any active hostilities.

  9. Mary says:

    On the material support front, the habeas courts have been trying to deal with this as well. So far, lots of different possible definitions are out there. Some of which comply with Steven’s observations of laws of war and overt hostile acts, some of which don’t.

    I can’t really remember who did what, but I think at least Leon and Walton and Sullivan and maybe others have each had to address material support and come up with definitional guidelines.

    DOJ hasn’t been much help, bc it’s focus isn’t getting a good, valid, working definition that can apply with some logical and moral basis to current and future conflicts – it’s focus is keeping torture victims under wraps and protecting it torturer clients.

  10. emptywheel says:

    This is sort of off-topic. But one of the other dynamics that will go on is that KSM, a Pakistani Islamic extremist, will be tried by a naturalized Indian-American, Preet Bharara.

    THat shouldn’t matter. But as things get closer, I will imagine it will be a topic of some discussion, if not here, then on the subcontinent.

  11. powwow says:

    Here’s the final, conferenced version of the 2009 Military Commissions Act [starting on PDF Page 385 of 655], now enacted into law as part of Public Law 111-84. The 2009 MCA still authorizes Military Commission charges for both “material support” and “conspiracy”:

    -‘Sec. 950t [of the revised USCode Title 10, Chapter 47A, Subchapter VIII]. Crimes triable by military commission

    The following offenses shall be triable by military commission under this chapter at any time without limitation:



    ‘(A) OFFENSE- Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24) of this section), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct.

    ‘(B) MATERIAL SUPPORT OR RESOURCES DEFINED- In this paragraph, the term `material support or resources’ has the meaning given that term in section 2339A(b) of title 18.


    ‘(29) CONSPIRACY– Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this subchapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

    Mary, quoting Justice Stevens, highlights the vital and completely-obscured (by Congress, the DOJ, and the media) reality that battlefield “military necessity” is the sole semi-legitimate justification under our Constitution for using irregular military commissions/tribunals in lieu of general courts-martial for accused war criminals who are otherwise eligible to be prosecuted under the well-established system (that’s also applicable to our own military) of the Uniform Code of Military Justice [the UCMJ is USC, Title 10, Chapter 47]. Irregular military commission tribunals where the Executive Branch alone is empowered to act as judge, jury and executioner, absent extraordinary Supreme Court intervention, without the separation of powers safeguards built into the UCMJ-governed military justice system.

    To illustrate the deliberate, ‘fixing the procedures to facilitate the desired outcome’ character of these deliberately-segregated, irregularly-constituted Military Commissions, here’s how these wholly Executive Branch-operated “courts” intentionally end-run (Constitutional separation of powers-sensitive) UCMJ procedures:

    -‘Sec. 948a [of the revised USCode Title 10, Chapter 47A (Military Commissions Act), Subchapter I]. Definitions

    ‘In this chapter:

    ‘(1) ALIEN- The term ‘alien’ means an individual who is not a citizen of the United States.

    ‘(2) CLASSIFIED INFORMATION- The term ‘classified information’ means the following:

    ‘(A) Any information or material that has been determined by the United States Government pursuant to statute, Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security.

    ‘(B) Any restricted data, as that term is defined in section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).


    ‘(7) UNPRIVILEGED ENEMY BELLIGERENT- The term ‘unprivileged enemy belligerent’ means an individual (other than a privileged belligerent) who–

    ‘(A) has engaged in hostilities against the United States or its coalition partners;

    ‘(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or

    ‘(C) was a part of al Qaeda at the time of the alleged offense under this chapter.

    ‘(8) NATIONAL SECURITY- The term ‘national security’ means the national defense and foreign relations of the United States.

    ‘(9) HOSTILITIES- The term ‘hostilities’ means any conflict subject to the laws of war.

    -‘Sec. 948b. Military commissions generally

    ‘(a) Purpose- This chapter establishes procedures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military commission.

    ‘(b) Authority for Military Commissions Under This Chapter- The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.

    ‘(c) Construction of Provisions- The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice). Chapter 47 [the UCMJ] of this title does not, by its terms, apply to trial by military commission except as specifically provided therein or in this chapter, and many of the provisions of chapter 47 of this title are by their terms inapplicable to military commissions. The judicial construction and application of chapter 47 of this title [the UCMJ], while instructive, is therefore not of its own force binding on military commissions established under this chapter.

    ‘(d) Inapplicability of Certain Provisions

    {1) The following provisions of this title [meaning the UCMJ provisions in Title 10, Chapter 47] shall not apply to trial by military commission under this chapter:

    ‘(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial.

    `(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination.

    `(C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to pretrial investigation.

    ‘(2) Other provisions of chapter 47 of this title shall apply to trial by military commission under this chapter only to the extent provided by the terms of such provisions or by this chapter.

    ‘(e) Geneva Conventions Not Establishing Private Right of Action- No alien unprivileged enemy belligerent subject to trial by military commission under this chapter may invoke the Geneva Conventions as a basis for a private right of action.

    Kris tried, because of David Barron’s non-public OLC opinion on the matter, which binds the Executive Branch, to get a “voluntariness” standard into Carl Levin’s 2009 Military Commissions Act, in parallel with his attempt to remove “material support” as a valid “war crimes” charge. The Armed Services Committees of the House and Senate had to grudgingly concede the binding precedent on the Executive Branch of Barron’s OLC ‘voluntariness’ opinion, but this is the extent of the accommodation that they made to a “voluntary” standard in the latest MCA:

    -‘Sec. 948r [of the revised USCode Title 10, Chapter 47A, Subchapter III]. Exclusion of statements obtained by torture or cruel, inhuman, or degrading treatment; prohibition of self-incrimination; admission of other statements of the accused

    ‘(a) Exclusion of Statements Obtain[ed] by Torture or Cruel, Inhuman, or Degrading Treatment– No statement obtained by the use of torture or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a military commission under this chapter, except against a person accused of torture or such treatment as evidence that the statement was made. [This flat exclusion is an improvement over earlier versions of the bill.]

    ‘(b) Self-incrimination Prohibited- No person shall be required to testify against himself or herself at a proceeding of a military commission under this chapter.

    (c) Other Statements of the Accused– A statement of the accused may be admitted in evidence in a military commission under this chapter only if the military judge finds

    ‘(1) that the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and

    (2) that–

    ‘(A) the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence; or

    (B) the statement was voluntarily given.

    ‘(d) Determination of Voluntariness– In determining for purposes of subsection (c)(2)(B) whether a statement was voluntarily given, the military judge shall consider the totality of the circumstances, including, as appropriate, the following:

    ‘(1) The details of the taking of the statement, accounting for the circumstances of the conduct of military and intelligence operations during hostilities.

    ‘(2) The characteristics of the accused, such as military training, age, and education level.

    ‘(3) The lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused.

    Finally, with regard to the reverse-engineering to avoid accountability meted out by the courts, that seems to be the daily practice now of the Executive Branch, under Obama as under Bush, the Appeals Court filing I wrote about here might have played a significant role in the decision to send the five 9/11 suspects to federal court, instead of keeping them in the segregated, irregular military commission “process.” Emptywheel’s post about the ACLU conference call with Bin Al Shibh’s civilian defense attorney reminded me of the potential significance of that principled appeal, which I believe is still under consideration by the DC Circuit Court of Appeals. Importantly, according to Lyle Denniston at, there is a parallel filing (which I haven’t seen) to the same court on behalf of different detainees (I don’t know whom, though), apparently making a similar Constitutional challenge to the Military Commissions Act and its deliberate avoidance of the “regularly-constituted” UCMJ military court system.

    Having read the lame (though time-pressured) DOJ response, undersigned by David Kris, to the Navy JAG filing (on behalf of Bin Al Shibh), I can see how that JAG defense counsel challenge to the MCA might have the Department of Justice worried. Thus, perhaps, their resort to the reliable fallback: remove any case from the jurisdiction of a court where an unwelcome decision may be looming. Which is, as a rule, a piece of cake for them, so long as Congress lets the Executive Branch hold all the cards, and the Judicial Branch respectfully bows on command.

    • bmaz says:

      The question is not whether they are still there, but whether they will hold up. Kris is right about that as to the MCs and, quite frankly, I think they are bogusly overbroad as to application in US civilian courts as well (although Kris seems to disagree). I will note that the 9th Circuit has, however, found validity as to at least part of my argument.

    • emptywheel says:

      I was wondering about that. I asked specifically about bin al-Shibh in the presser. The “senior DOJ official” and “senior DOD official” doing the presser not only didn’t answer my question (they didn’t really answer a few others), they seemed to want to avoid all discussion of pending actions in the bin al-Shibh case altogether.

      I gotta get better at press conferecing. It’s not one of my stronger skills.

      ANyway, I apparently got Michael Isikoff paying attention to bin al-Shibh, so that’s something.

    • Mary says:

      I’m not familiar with Barron’s opinion – are you operating on a description of it or have you seen it or ???

      d-3 on voluntariness sucks the big suck. It’s an invitation to clean team, as if you can ever clean team someone you’ve tortured while still holding them in their torture chamber and with their torturers in charge of them.

      Levin has been nothing but a disappointment, from his decision to co-author the DTA request to take habeas away (albeit he claimed he only wanted it taken from those who hadn’t already filed their suits – kind of a “u snooze, u loose your rights to liberty” approach) to his handling of the MCA iterations.

      I haven’t paid much attention to the 2009 rework, so thanks for linking it. It’s hard to get geared up to even read it, though. Just depressing crap – spewed from the bowels of rudderless politicians without an ounce of leadership anywhere among them.

      What I didn’t touch on was the extent to which Kennedy (the swing vote) and Stevens (and poosibly Sotomayor now) are also willing to defer to statutory guidance, if it is truly explicit. Even Stevens, in the opinion linked, discussing the issues of trying someone with “secret evidence” never made available to them, includes caveats:

      But, at least absent express statutory provision to the contrary, information used to convict a person of a crime must be disclosed to him.

      emph added

      Boumediene was a huge big bullet dodge. But eventually, with a morphing-to-Bush-Jr President and a Demagogue-ic Democratic Congress aping the Republican one, and Nuremberg in ruins with a collapsed economy and the abortion wars flaming – there get to be too many bullets to keep dodging. For my part, I liked it better when the bullets weren’t coming from in back, but Obama is what he is – that’s not going to change now.

      Any link ot that JAG filing or the DOJ response?

      I take it back – I just can’t make myself read more on it all today.

      • powwow says:

        I’m not familiar with Barron’s opinion – are you operating on a description of it or have you seen it or ???

        Going completely from memory about a leak to (I think) the Wall Street Journal revealing its existence, Mary, in combination with Congressional testimony. As far as I know, and quite unfortunately, there’s no other public information about that OLC opinion’s specifics, never mind its actual contents. But between the statements Kris has made in Congressional testimony, and the report by the WSJ, which as I recall former MC JAG Prosecutor Darrel Vandeveld quickly picked up on and highlighted in his Congressional testimony, I believe the existence and import of the opinion as I’ve described it is accurate.

        [EW, congratulations and thank you for asking the Bin Al Shibh question. I hadn’t take in that you participated in a conference call/press conference with anonymous administration officials. Even though apparently not escape-proof, it sounds like your question did elicit a telling silence on that front, which may well be indicative of the potential import of the JAG appeal that is directly challenging the constitutionality of the MCA. Well done.]

  12. emptywheel says:

    Here’s what DOJ spokesperson Dean Boyd had to say:

    The reforms that Congress made to the Military Commissions Act which were ultimately enacted into law recently, kept the charge of material support as a charge in the military commissions system. So material support charges remain a possibility in both federal trials and military commissions.

  13. KevinFenton says:

    I can’t help but notice that the five to come to NYC intend to plead guilty, whereas the five to stay before military commissions are fighting the charges. More here:

    Of the five before military commissions, al-Nashiri is clearly guilty, Khadr should have a fighting chance even before a loaded tribunal, al-Darbi’s case is weird, and the other two I don’t know.

  14. Hmmm says:

    I’m a bit confused. If criminal justice system material support doesn’t carry the death penalty, who is going to be satisfied with even the best-case outcome? Not the vast majority of Americans, making this a bad political decision for the administration… or is the subtler gambit that the trial will still be ongoing at the tine of the 2012 election…? Cynic that I am at heart, I doubt the eleventy-dimensional gaming-out process failed to account for re-election prospects.

  15. Mary says:

    @25, 31, 33 –

    A similiar kind of issue was being framed in al-Marri
    until DOJ put it to bed too.

    That brings me to the al Marri case, the cert. petition in which is on the Justices’ agenda for their conference tomorrow morning. The en banc Fourth Circuit was able to agree on very little concerning whether the AUMF supports al Marri’s detention and whether he has received the process that is due. But the range of possible definitions of “enemy combatant” in the various opinions is relatively small, and, like Judge Leon’s approach, mostly include definitions narrower than that provided by the MCA — and definitions that might foreordain the release of a number of individuals still held at Guantánamo and elsewhere. … But perhaps Judge Leon’s decision will provide one more reason to step in, and finally resolve — after all this time — just how broadly detention authority under a statute enacted more than seven years ago actually sweeps.

    Once all the appeals under the old statute are settled, loose cert, or are simply procedurally postured as being under the old statute, then the newer versions come along, better drafted than what Bushco put together to imperialize detention powers, and yet with smattering indicia of process that were not included in predecessors, so that you can send it all back to square one for the detainees fighting.

  16. emptywheel says:

    Here’s the referral process the DOJ published in July. It lists the following as factors for where you prosecute:

    Factors for Determination of Prosecution. There is a presumption that, where feasible, referred cases will be prosecuted in an Article III court, in keeping with traditional principles of federal prosecution. Nonetheless, where other compelling factors make it more appropriate to prosecute a case in a reformed military commission, it may be prosecuted there. The inquiry turns on the following broad sets of factors, which are based on forum-selection factors traditionally used by federal prosecutors.

    A. Strength of Interest. The factors to be considered here are the nature of the offenses to be charged or any pending charges; the nature and gravity of the conduct underlying the offenses; the identity of victims of the offense; the location in which the offenses occurred; the location and context in which the individual was apprehended; and the manner in which the case was investigated and evidence gathered, including the investigating entities.

    B. Efficiency. The factors to be considered here are protection of intelligence sources and methods; the venue in which the case would be tried; issues related to multiple-defendant trials; foreign policy concerns; legal or evidentiary problems that might attend prosecution in the other jurisdiction; and efficiency and resource concerns.

    C. Other Prosecution Considerations. The factors to be considered here are the extent to which the forum, and the offenses that could be charged in that forum, permit a full presentation of the wrongful conduct allegedly committed by the accused, and the available sentence upon conviction of those offenses.

  17. powwow says:

    With many thanks to Lyle Denniston at, I see that the other Guantanamo detainee who recently filed a direct constitutional challenge to the (2006) Military Commissions Act, at the DC Circuit Court, is Mustafa Ahmed Al Hawsawi. [Denniston noted on September 21 that the Al Hawsawi case (Circuit docket 09-1244) had been recently filed, but that the filings in it had not yet been released publicly by court security officers.] So the just-announced move of those two prosecutions (along with those of the other three 9/11 suspects) from Military Commissions to federal court potentially quashes both of those MCA Constitutional challenges, if another detainee doesn’t step up to fill their place(s).

    For anyone else interested (Mary’s earned a reprieve…), the lame DOJ/Kris response to the 9/9/09 JAG Petition for Writ of Mandamus and Writ of Prohibition filed on behalf of Ramzi Bin Al Shibh (Circuit docket 09-1238) is here [separate caption page here], and the compelling JAG reply brief, filed September 18th, is here. [Note the discussion in those two reply briefs as to the historical status and treatment of spies.]

    As regards the position of current Supreme Court justices on the question of the validity of Military Commissions, as highlighted by Mary, there’s this passage of note from the JAG mandamus writ filed 9/9/09:

    The [Supreme] Court went on to hold, in a definitive interpretation of the “law of nations,” that “a military commission ‘can be “regularly constituted” by the standards of our military justice system only if some practical need explains deviations from court-martial practice,”’ id., at 632-3 (plurality; quoting Kennedy, J., concurring, id., at 645), [I substituted a comma there for a semi-colon to avoid a “database error” message when previewing/posting] id., at 645 (Kennedy, J., concurring). Despite the fact that the [2006] MCA declares itself to be a “regularly constituted court,” 10 U.S.C. Sec. 948b(f), it is in patent violation of Common Article 3 as construed by the Supreme Court. Accordingly, it exceeds Congress’s powers.

    • emptywheel says:

      So let me make sure understand.

      By trying the 9/11 5 in NYC, they:

      1) Get rid of Ramzi bin al-Shibh’s pending competency hearing (with the petition they learn what drugs he go)
      2) Get rid of RbaS’s challenge to Military Commissions
      3) Get rid of Hawsawi’s challenge to Military Commissions

      Not to mention trying KSM at the scene of the crime?

      Mind you, I PREFER civilian trials, for everyone. But are we suggesting that these are the big factors?

      • bmaz says:

        Those certainly appear to be big factors; whether they are “the” big factors is yet to be determined I would think. There is an immense spectrum of factors at play here. 2 and 3 look like a yes; as to 1, my guess is just a delay as competency will unquestionably be replead.

  18. powwow says:

    Here’s more detail on the subject of commission charges, standards of evidence, and their overall illegitimacy, from former Military Commissions defense counsel Air Force Reserve JAG Major David J. R. Frakt, testifying to Rep. Nadler’s House Judiciary Subcommittee on July 30, 2009:

    If one were to review the charges brought against all of the approximately 25 defendants charged in the military commissions, as I have, one would conclude that 99% of them do not involve traditionally recognized war crimes. Rather, virtually all of the defendants are charged with non-war crimes, primarily criminal conspiracy, terrorism and material support to terrorism, all of which are properly crimes under federal criminal law, but not the laws of war. In fact, in my estimation, there has been only one legitimate war crime charged against any Guantanamo detainee, the charge of “perfidy” against Abdal-Rahim Al-Nashiri for his alleged role in the attack on the U.S.S. Cole in October 2000. But even though perfidy is a traditional offense under the law of war, convicting Mr. Al-Nashiri of this offense requires accepting the dubious legal fiction that the United States was at war with Al Qaeda nearly a year before 9/11, for the law of war only applies during a war. In fact, most of the offenses with which the so-called “high value detainees” are charged relate to events which occurred on or before 9/11, when the U.S. was not involved in an armed conflict with Al Qaeda.


    True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves.

    And from former Military Commissions prosecutor Army Reserve JAG Lieutenant Colonel Darrel Vandeveld, testifying to Rep. Nadler’s House Judiciary Subcommittee on July 8, 2009, beginning with Vandeveld’s reference to the reported OLC opinion I discussed above:

    My concerns appear to have been vindicated by the Justice Department’s Office of Legal Counsel. As the members of this committee are no doubt aware, the Wall Street Journal reported last week that the OLC has issued an opinion finding that detainees tried by military commissions can claim certain constitutional rights, including the Constitution’s prohibition on the use of statements obtained through coercive interrogations. Not only does this opinion bind the Executive branch to uphold a higher standard of admissibility of evidence than that afforded by either the current military commission rules or the Senate Armed Services Committee’s [then-pending 2009 Military Commissions Act] legislation, but it also raises the specter of eventual invalidation by the Supreme Court of any prosecution of a detainee now held at Guantanamo.


    For some of the prisoners, such as some of the High Value Detainees, coerced statements may be corroborated by evidence that would be admissible. For others, only an unreliable coerced statement provides a tenuous theory of prosecution. Such cases should rightfully give any prosecutor pause. Disallowing evidence obtained through coercion would result in the evisceration of many of the cases that might otherwise, on the most tenuous of theories, have been prosecuted. Instead of recognizing this sad reality and resettling or repatriating those prisoners against whom the government has insufficient and tainted evidence, the present [then-pending] legislation, in effect, opts to continue the charade. Thus, in place of the ban on the use of coerced statements mandated by the Due Process Clause of the Constitution, the present legislation disallows only statements obtained through torture or cruel, inhuman or degrading treatment.


    The Uniformed Code of Military Justice bans as “involuntary” statements obtained “through the use of coercion, unlawful influence, or unlawful inducement.” That is the law that applies in every courtmartial – absolutely no coerced evidence may be admitted. In contrast, it is unclear what, precisely, constitutes cruel, inhuman or degrading treatment under U.S. law. Indeed, the definition of cruel, inhuman, or degrading treatment has never been litigated before U.S. courts, and has, in the recent past, been the subject of discredited interpretations by Executive Branch attorneys.2


    These rules of evidence represent significant departures from typical federal criminal court trials, courts-martial proceedings, and proceedings before international tribunals. As such, they will ultimately [be] found to be unconstitutional and also will very likely be found to fail to comply with Common Article 3 of the Geneva Conventions, which require trial by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Language from Hamdan indicates that the Supreme Court might find these provisions problematic. In a portion of his concurring opinion endorsed by the majority,3 Justice Kennedy noted specific deficiencies in the commissions’ rules of evidence, which, he argued, “could permit admission of multiple hearsay and other forms of evidence generally prohibited on grounds of unreliability,” including “unsworn written statements,” and “coerced declarations.”4

  19. Mary says:

    Not to beat this case to death, but you can also go back to Ex parte Milligan and find the argument that habeas counsel was making there:

    There remains, then, but a single clause to discuss, and that is the one which makes him commander-in-chief of the army and navy of the United States, and of the militia of the States when called into the federal service. The question, therefore, is narrowed down to this: Does the authority to command an army carry with it authority to arrest and [71 U.S. 2, 32] try by court-martial civilians-by which I mean persons not in the martial forces; not impressed by law with a martial character?

    What is called the war power of the President, if indeed there be any such thing, is nothing more than the power of commanding the armies and fleets which Congress causes to be raised. To command them is to direct their operations.

    Much confusion of ideas has been produced by mistaking executive power for kingly power. Because in monarchial countries the kingly office includes the executive, it seems to have been sometimes inferred that, conversely, the executive carries with it the kingly prerogative. Our executive is in no sense a king, even for four years.

    I will now show that military tribunals for civilians, or non- military persons, whether in war or peace, are inconsistent with the liberty of the citizen, and can have no place in constitutional government. This is a legitimate argument even upon a question of interpretation; for if there be, as I think there is not, room left for interpretation of what seem to be the plain provisions of the Constitution, then the principles of liberty, as they were understood by the fathers of the Republic; the maxims of free government, as they were [71 U.S. 2, 35] accepted by the men who framed and those who adopted the Constitution; and those occurrences in the history of older states, which they had profoundly studied, may be called in to show us what they must have meant by the words they used.

    The source and origin of the power to establish military commissions, if it exist at all, is in the assumed power to declare what is called martial law. I say what is called martial law, for strictly there is no such thing as martial law; it is martial rule; that is to say, the will of the commanding officer, and nothing more, nothing less.

    The one thing that BOTH sides agreed upon in Ex Parte Milligan was that the grounds for using a commission was the prior impositin of martial law.
    See e.g., this argument from Gov:

    The officer executing martial law is at the same time supreme legislator, supreme judge, and supreme executive. As necessity makes his will the law, he only can define and declare it; and whether or not it is infringed, and of the extent of the infraction, he alone can judge; and his sole order punishes or acquits the alleged offender.

    But the necessities and effects of warlike operations which create the law also give power incidental to its execution. It would be impossible for the commanding general of an army to investigate each fact which might be supposed to interfere with his movements, endanger his safety, aid his enemy, or bring disorder and crime into the community under his charge. He, therefore, must commit to his officers, [71 U.S. 2, 15] and in practice, to a board of officers, as a tribunal, by whatever name it may be called, the charge of examining the circumstances and reporting the facts in each particular case, and of advising him as to its disposition-the whole matter to be then determined and executed by his order. 13

    Hence arise military commissions, to investigate and determine, not offences against military law by soldiers and sailors, not breaches of the common laws of war belligerents, but the quality of the acts which are the proper subject of restraint by martial law.

    IOW, when you step out of the traditional laws of war which are the proper subject of courts martial, to try to include offenses of non-uniformed combatants who do not qualify as “spies” you do so under either civilian law, or circumstances were civilian law is so lacking that you are in a state of lawlessness requiring the imposition of martial law.

    Had there been a battlefield commission called in Tora Bora, there might have been some grounds for its validity. But now – there is not. None of the men facing commissions are being held in a place of such lawlessness that martial law has been declared.

    Bc of the structure of the Ex parte Milligan case as reported, including arguments of petitioners and respondents, there is a very interesting history of commissions and the conflicts of the laws of war (courts martial) the civilian law, and commissions (an almost lawless area)

    Congress doesn’t want to use real courts martial, bc most of what is at issue is not validly subject to a court martial. They don’t want to use a civilian court bc they allowed and, on a bipartisan basis participted in, almost a decade’s worth of attack on civilian law as being something to be denigrated, not utilized. Instead, they want to take what was supposed to be, from the time commissions were originally envisioned, a lawless proceeding that was only appropriate in a state of lawlessness and dress it up to make it something else, some kind of mutant cross of a court martial but with more Executive power and more ability to convict without evidence or process.

    They have not valid commission setting, so they try to Congressionally create one – the Democratic Congress has been joined the loyal Bushies under the theory that they don’t exist within reality, they create reality.

    They are trying very hard to have it both ways – to have a proceeding that was only ever intended to take place in a state of lawlessness, a chaos that has been reduced to martial law – and apply it something that can be regularly and routinely used without such a setting and as a kind of “pseudo” court martial, but where they can stack the deck against non-impressed soldiers in favor of convictions. It runs very contrary to the common law and military law history of this country to opt into trying non-military personnel under not only military law, but not even that, rather commissions that were originally instituted to operate not as courts martial under military law, but as arms of Executive will under martial law.

    There is a interesting passage in the arguments in Milligan, where the petitioners discuss what Congress was like on this issue back at a time of overwhelming civil war, with hundreds of thousands of American lives being lost – it’s a stark contrast with COngress today. although it shows the Senate even then as a more easily swayed towards practical overthrow of the Constitution and more enamored of imperial powers in the Presidency:

    Near the close of the Thirty-Eighth Congress, when the miscellaneous appropriation bill, which authorized the disbursement of several millions of dollars for the civil expenditures [71 U.S. 2, 60] of the government, was under discussion, the House of Representatives, having observed with alarm the growing tendency to break down the barriers of law, and desiring to protect the rights of citizens as well as to preserve the Union added to the appropriation bill the following section:

    ‘And be it further enacted, That no person shall be tried by court- martial or military commission in any State or Territory where the courts of the United States are open, except persons actually mustered or commissioned or appointed in the military or naval service of the United States, or rebel enemies charged with being spies.

    It was debated at length in the Senate, and almost every Senator acknowledged its justice, yet, as the nation was then in the very midst of the war, it was feared that the Executive might thereby be crippled, and the section was stricken out. The bill came back to the House; conferences were held upon it, and finally, in the last hour of the session, the House deliberately determined that, important as the bill was to the interests of the country, they preferred it should not become a law if that section were stricken out.

    The bill failed; and the record of its failure is an emphatic declaration that the House of Representatives have never consented to the establishment of any tribunals except those authorized by the Constitution of the United States and the laws of Congress.

    Now we have Congress penning laws to authorize a hybrid commission, not organized by the necessity of closure of civilian courts, but resting on the inconvenience of due process as their exigency – not prompted by a phyiscal closing of the courts, but instead by the ideologic and political decision to de facto close courts based on the “exigency” of mere inconvenience.

    • emptywheel says:

      You have my permission to raise Milligan any time you want. In all that incredibly informative stuff you’ve given this blog, your Milligan lessons are some of hte most informative.

      And tell bmaz and his damn Keith to feckoff.

    • powwow says:

      Mary, that’s the makings of a superb and timely Seminal diary (it really just needs some proofreading and maybe the addition at the beginning of your closing context about the Civil War-era Milligan case, plus a brief summary of its particular circumstances)…

      [What impressive action by the U.S. House in the 38th Congress. That is a very telling passage that puts today’s Party-strangled House to shame.]

      Very, very well said.

      • bmaz says:

        Ex parte Milligan is a fascinating case to consider in these matters. It is not just prose however, it is still ostensibly good law and has never been overturned; however it has been consistently distinguished, sometimes in very contrived ways, but consistently starting with Ex parte Quirin and proceeding right through Hamdi, Padilla and the other cases since 9/11. And when I say distinguished, I mean to the degree that in many cases they might as well have overruled it. So despite the wonderful words in Milligan, and despite that they still are supposedly good law, it really does not seem to carry much weight. Scarily enough, the best option for following Milligan is likely Scalia, just to give you an idea of the bizarre status it seems to carry.

  20. MadDog says:

    OT – I know ya’ll were hiding out in this earlier post, but since I was downloading and installing the Microsoft Office 2010 Beta on my other home system, I was busy elsewhere.

    In any event, I was also continuing to read those EFF FOIA documents on the FISA Retroactive Immunity (multi-tasking doncha know *g*).

    During so, a question arose and I wondered if the assembled Hotwheelers could jog my memory. I don’t remember if I’ve seen this background briefing before (from pages 29 through 45 of the Office of the Director of National Intelligence, part 81-2 – 66 page PDF).

    If it’s only my Swiss cheese memory failing me here, I apologize in advance.

    So here’s the setting to my question.

    The background briefing takes place at the White House on Feb. 26, 2008 with 2 “senior administration officials”.

    One is from the DOJ (though not Fredo as is obvious during the course of the briefing) and the other is from the “intelligence community” (apparently not Mikey McConnell – Director of National Intelligence). Probably NSA, but perhaps from ODNI.

    This is before the approval of the FISA Amendments Act, but about a week or so after the Protect America Act had expired, and there is a good deal of background Q&A about the consequences of that expiration on both existing and new warrantless surveillance.

    So with that as background, here’s some of that Q&A starting from page 38:

    …Q So what intelligence was lost? You talked about the loss of intelligence. Can you quantify that? As Director McConnell did back in August, he gave very dramatic statements about 75 percent of the intelligence had been lost because of this one loophole. You know, this all seems kind of abstract — the intelligence that had been lost. What does that actually mean?

    SENIOR ADMINISTRATION OFFICIAL: Last summer was a more long-term development in coming. This was an intense period over a week, so we were not up on the new surveillances that we needed to go up on. So we were not up on those. We had valid foreign intelligence reasons to want to be initiating survellance on these activities. We were not able to do that because of this issue with the providers. So we lost that time period from when we would have initiated these new surveillances to the time period in which we were able to come back up on them.

    It’s important to note — let me add one asterisk here, though, which is, the act has expired. This was what we thought was the clearest part of the act. And we had talked — [my colleague] and I had both talked up on the Hill in hearings about this — and I saw articles quoting us about, oh, yes, we can do — we think we can do surveillances; that’s pretty clear under the statute; we think we’ll be successful on that. We outlined we were very concerned about new providers, new directives, new activities, which we thought we may encounter some issues on…

    (My bold)

    And connect my bolds above to this from page 32:

    Q So, basically, you cannot conduct — get this activity without help from the private telecommunications firms?

    SENIOR ADMINISTRATION OFFICIAL: “Electronic communication service providers” is the way I would phrase it, but, yes, private parties —

    (My bold again)

    I keep saying this has never been just about Telcos, but also about email providers like Google with Gmail, Microsoft with Hotmail, Comcast’s email, Yahoo’s email, etc.

    • Hmmm says:

      True, but I would not focus purely on the visible, branded email service providers. ISPs and internet backbone providers would also fit any reasonable definition of “electronic communication service providers”. As would radio broadcasters, microwave data transmission firms, transoceanic cable operators, exchange operators, even realtime financial market and transaction data services (Bloomberg et al.), etc. etc. etc.

    • emptywheel says:

      Well, and remember two things. First, Gonzo was gone by then. Mukasey was AG.

      Also, remember that the FISCR that got released last year was almost certainly an email provider who got the request for surveillance during the PAA period.

      I’m giogn to have another open thread on that stuff–I’m still back working through the damn OLC docs.

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