The Lawyers that Stayed, the Lawyers that Left

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Charlie Savage covers a very troubling development in the case of Ali al-Bahlul, a Yemeni who is serving a life sentence for serving as Al Qaeda’s videographer.

After Hamdan had his conviction vacated by the DC Circuit last year because material support was not a war crime at the time of his support for al Qaeda, Bahlul’s conviction was put in jeopardy too. As Savage earlier reported, there was a debate among the national security lawyers. And in spite of the fact that almost everyone disagreed with Eric Holder on this count, Holder made them press forward anyway.

The Obama administration, after a high-level debate among its legal team, told a federal appeals court on Wednesday that the conviction of a Guantánamo Bay prisoner by a military commission in 2008 was valid even though the charges against him — including “conspiracy” and “material support for terrorism” — were not recognized as war crimes in international law.

Attorney General Eric H. Holder Jr. decided to press forward with the case, fighting the appeal of a guilty verdict against the prisoner, a Yemeni man named Ali al-Bahlul. In an unusual move, Mr. Holder overruled the recommendation of the solicitor general, Donald B. Verrilli Jr., who had wanted to drop the case because the appeals court had rejected the same legal arguments in another case several months ago, according to officials familiar with the deliberations.

The chief prosecutor of the military commissions system, Brig. Gen. Mark Martins, had also urged the Justice Department to drop the case and pointedly did not sign the 22-page brief to the court on Wednesday. It concedes that the judges must side with Mr. Bahlul at this stage because of the earlier ruling in the other case, but argues that the earlier ruling was wrong.

It sure appears that Eric Holder is just counting on getting the same kind of batshit crazy ruling he got in Latif, so as to sustain his legally unjustified detention.

What’s especially interesting about this, however, is the Kremlinology. Back in early December over the course of two days time, both Jeh Johnson and Harold Koh resigned. It felt very much like a protest, or a refusal to be part of something that struck them as legally unsound (I thought then–as still suspect–it was partly a response to John Brennan’s halt of the effort to put drones on a sound legal footing).

And now we know that around that time, the Attorney General was overriding not just their advice, but that of most of the others involved in this, including the Solicitor General and the Military Commission Chief Prosecutor.

Yesterday’s brief, incidentally, was signed by the Acting Deputy General Counsel at DOD, not Johnson (of course).

So Johnson and Koh are gone. And Eric Holder? The Administration just announced he will stay into the second term. (And, not incidentally, yesterday I floated the suggestion that Lisa Monaco, who sided with Holder on this fight, would be named to replace FBI Director Mueller later this year; a number of smart people suggested that was a smart prediction.)

Update: In the WaPo version of this story, Steve Vladeck suggests that if the government really planned to push forward with an appeal of this to SCOTUS (that is, to reverse the ruling in Hamdan II), the language in the brief would have been stronger.

Incidentally, I wonder yet again about the case of the three Somalis in this context. Is this why they added a conspiracy charge to their indictment, to establish that as a precedent in this situation?

Three Months after Latif’s Death, “Transparent” Gitmo Reveals Acute Pneumonia

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Roughly 11 years to the day after he was captured by Pakistanis to be sold for bounty and over 3 months after his death, Adnan Latif has returned to Yemen, a partly-decayed corpse.

In the statement announcing his remains have been repatriated, Gitmo revealed a new detail about how he died.

The medical examiner also concluded that acute pneumonia was a contributing factor in his death.

You gotta ask why a guy with acute pneumonia was put in solitary. I also wonder whether years of forced feeding contributes to pneumonia?

Not to worry, though, because Gitmo says they take care of detainees. Here’s the last paragraph of the statement:

Joint Task Force Guantanamo continues to provide safe, humane, and lawful care and custody of detainees. This mission is being performed professionally, transparently, and humanely by the men and women of Joint Task Force Guantanamo. [my emphasis]

It took two and a half months to learn Latif committed suicide. We’re only now learning he suffered from acute pneumonia. And we still do not officially know how badly his head injury–the one the government claims didn’t really exist so they could keep him detained–expressed itself while at Gitmo, much less the drugs he was being given, ostensibly for that and mental health problems.

Don’t worry though. Gitmo operates transparently.

May you rest in peace, Adnan.

Zero Dark 30 “Heroine” Outed and Scarred By European Torture Judgment

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[SEE CRITICAL UPDATE BELOW]

Although many people have been long familiar with her name and career, there seems to be new buzz about the [possible] identity of the female CIA operative lionized in the bin Laden killing and talk of the town movie “Zero Dark Thirty“.

The Twitters are abuzz this morning, but this article from John Cook at Gawker last September tells the tale:

Her name is Alfreda Frances Bikowsky and, according to independent reporters Ray Nowosielski and John Duffy, she is a CIA analyst who is partially responsible for intelligence lapses that led to 9/11. The two reporters recently released a “documentary podcast” called “Who Is Richard Blee?” about the chief of the agency’s bin Laden unit in the immediate run-up to the 9/11 attacks and featuring interviews with former counterterrorism official Richard Clarke, former CIA agent Bob Baer, Looming Tower author Lawrence Wright, 9/11 Commission co-chairman Tom Keane, and others. In it, Nowosielski and Duffy make the case that Bikowsky and another CIA agent named Michael Anne Casey deliberately declined to tell the White House and the FBI that Khalid al-Mihdhar, an Al Qaida affiliate they were tracking, had obtained a visa to enter the U.S. in the summer of 2001. Al-Mihdhar was one of the hijackers on American Airlines Flight 77. The CIA lost track of him after he entered the U.S.

Bikowsky was also, according to Nowosielski and Duffy, instrumentally involved in one of the CIA’s most notorious fuck-ups—the kidnapping, drugging, sodomizing, and torture of Khalid El-Masri in 2003 (El-Masri turned out to be the wrong guy, and had nothing to do with terrorism). As the Associated Press’ Adam Goldman and Matt Apuzzo reported earlier this year, an analyst they described only by her middle name—”Frances”—pressed for El-Masri to be abducted even though some in the agency weren’t convinced he was the terrorist that Frances suspected he was. Instead of being punished or fired for the error, “Frances” was eventually promoted to running the Global Jihad Unit by then-CIA director Michael Hayden. According to Goldman and Apuzzo’s story, “Hayden told colleagues that he gave Frances a pass because he didn’t want to deter initiative within the counterterrorism ranks.”

My, my, the CIA does have problems keeping secrets lately, don’t they? A point saliently noted by Marcy in relation to both Matt Bissonnette and the Mexican “trainers” who were involved in in an ambush. I guess the de rigueur Obama Administration leak prosecution will be along any second.

It is fairly amazing Bikowsky’s name has been kept out of the real limelight surrounding [speculation on] Zero Dark Thirty this long, considering her known involvement in the other issues, especially the one about gleefully horning in on the torture show viewing [which Bikowsky did in regards to KSM]. An attitude that speaks volumes as to Read more →

Clue: It Was the Drugs in the Solitary Confinement

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Charlie Savage confirms what Jason Leopold had suggested earlier: Adnan Latif died from too much psychiatric drugs.

A Yemeni detainee who was found dead in September at the military prison at Guantánamo Bay, Cuba, died from an overdose of psychiatric medication, according to several people briefed on a Naval Criminal Investigative Service inquiry.

But while a military medical examiner labeled the man’s death a suicide, how the prisoner obtained excess drugs remains under investigation, according to American and Yemeni officials.

Savage’s sources suggest that Latif was stockpiling the drugs himself, perhaps in a bodily orifice.

One official, however, discounted [David Remes’] theories, saying investigators were working from the premise that Mr. Latif pretended to swallow his drugs for a period and hid the growing stash on his body. Prison monitoring policies — including how closely guards inspect detainees’ mouths after giving any medication and search their private areas — are now facing review.

Though of course, that would have required Latif to have brought them with him from the hospital ward to the solitary confinement ward, which would mean he managed to get the drugs by both the administration period but also the admission into solitary.

Savage also doesn’t mention a few details from Leopold’s earlier article. Shaker Aamer told David Remes that Latif had been told he’d be injected with a drug detainees say turns them into zombies for a month.

Aamer contends Latif was told on September 6, two days before his death, he would be given an “ESP injection,” that other prisoners claim “makes you a zombie” and “has a one-month afterlife,” according to unclassified notes of the meeting between Remes and Aamer.

More interesting still–given the points I raised above about how Latif would have managed to get drugs into solitary with him–is this detail.

Another prisoner said a female psychologist accompanied Latif from the hospital to Camp 5, where one prisoner told Remes the minimum stay is three months, “regardless of the magnitude of the offense.”

The female psychologist said she would communicate Latif’s concerns about being housed in Camp 5 to “higher-ups.”

Mind you, this psychologist at least sounds sympathetic. Moreover, this detail would seem to be unknowable to other detainees–how would they know what she had told Latif?–unless the psychologist had spoken to other detainees.

Finally, there’s this: Savage’s sources (as were some of Leopold’s) are citing the NCIS investigation, not the autopsy. But that’s not supposed to be done for nine months. Now perhaps NCIS doesn’t expect to have an explanation for how Latif got or stashed the drugs for another 7 months at least. Or perhaps the NCIS investigation will take that long only to make sure Latif’s remains will be good and decomposed by the time it’s done.

But as we discuss the minutia of how a detainee managed to overdose in closely guarded solitary, remember this: He was almost certainly innocent, and he surely should not have remained in Gitmo after habeas review.  Because of that legal injustice, we’re left playing clue about how a disturbed man died in America’s prison camp.

The Evidence Explaining Latif’s Death? “Now Badly Decomposed”

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On October 4, I asked with disgust whether the government planned to hold Adnan Latif’s body until after the election.

Latif died on September 8–26 days ago, or 44% the period until the election. if the sole explanation for the delay is that the US is unwilling to turn over an explanation of how Latif died, it makes it far more likely that Latif died of something other than suicide.

So are they going to hold Latif on ice until the election? Is that the idea?

On October 18, when Jason Leopold explained the delay in revealing the cause of Latif’s death, I suggested any delay in repatriating Latif’s would prevent an independent assessment of why he died.

Meanwhile, no one can perform independent analysis on Latif’s body, because the government has stashed it at Ramstein Air Base in Germany. The US and Yemeni governments continue the same story shared with ProPublica: the Yemenis won’t accept the body until they get a report on why he died, the US hasn’t provided that, so the body decays in US custody.

[snip]

Tick tock.

Tick tock.

Latif died 40 days ago. Just 19 days remain before the election. Between them, the US and Yemeni governments have forestalled the time when the US has to admit a man–the sole evidence against whom was a flawed intelligence report written while Pakistanis were trying to convince us to pay a bounty for Latif–died of unnatural causes in their custody.

And when, 3 days after Obama’s reelection and 62 days after Latif’s death the government finished (but did not release) the autopsy results, I repeated my suspicion that the delay was designed to obscure the real cause of death.

This is all so predictable it really raises questions about what kind of unnatural causes killed Latif.

What caused a death at Gitmo that was scandalous enough it had to be buried until after the election?

With utterly predictable timing, Leopold reports the government has told Yemen–but not the American people, officially–how Latif died.

Suicide, they say, in seeming contradiction to early reports that said there were no signs of self-harm.

But here is the even more predictable kicker. No one can check their claims, because Latif’s body has been decomposing during the entire 79 day delay since he died.

Latif’s body has been held for nearly three months at Ramstein Air Base in Germany. US officials have said Latif’s remains have been handled according to Muslim precepts, which precluded taking steps to preserve his body and organs, now badly decomposed. Therefore, his family will not be able to seek an independent autopsy.

“This will be very tough for [Latif’s] family,” the Yemeni government official said about the condition of Latif’s remains. [my emphasis]

To prevent any accounting for the death of a probably innocent man imprisoned for over 10 years, the most advanced government on earth has just let that man’s body rot.

And rot.

And rot.

For over one fifth of a year.

Until no one could prove or disprove that the US government’s own treatment (or prior head wounds the government insisted, in an effort to continue to detain him in spite of a dearth of real evidence against him, were never that serious) killed this man.

Rotten. Rotten. Rotten.

The February 17 Brigade Liberates the Prisoners

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I’ve got a half-done post backstage talking about the conflicting evidence regarding the February 17 Brigade’s behavior the night of the Benghazi attack. Suffice it to say that, while they had been reliable in the past, and while CIA and State timelines differ about what kind of help they provided the night of the attack, there’s a lot of evidence to suggest they had allowed the attack, if not participated themselves.

Thus, it seems another “friendly” force potentially trained by David Petraeus’ people turned on the Americans.

But as Josh Gerstein notes, in an update to his post on Paula Broadwell’s apparently classified comments on October 26, Fox actually tied the February 17 Brigade to the prisoners at the annex.

Later in her remarks, Broadwell, said some of her information had come from a Fox News report. Fox said Monday that it’s “original” Oct. 26 report did mention three Libyan militia members being turned over by the CIA to Libyan authorities. That detail does not appear in the version of the story now posted online, but Fox reporter Jennifer Griffin did include it in at least one report.

“We’re also told, those at the CIA annex took into custody three Libyan attackers and were forced to hand them over to the Libyan February 17th forces that came to help at the annex approximately 4:00 in the morning. They handed these three Libyans over. It is not clear from U.S. officials what happened to the libyans and whether those Libyan attackers were in fact released in in the end by the Libyans,” Griffin reported.

Now, this syntax seems to suggest the prisoners were not–as Fox is now reporting–more general detainees, but people tied to the attack taken prisoner. Here’s what Fox currently says.

In the original Oct. 26 Fox News report, sources at the annex said that the CIA’s Global Response Staff had handed over three Libyan militia members to the Libyan authorities who came to rescue the 30 Americans in the early hours of Sept. 12.

Read more →

As Predicted, Government “Finishes” Latif Autopsy after Election

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Thirty-five days ago, I predicted the government would hold Adnan Latif’s body on ice until after the election.

So are they going to hold Latif on ice until the election? Is that the idea?

Not long after, Jason Leopold revealed they did, indeed, have Latif on ice–at Ramstein Air Base–purportedly because the Yemeni government refused to accept the rotting corpse until they also got an autopsy report. I noted,

Tick tock.

Tick tock.

Latif died 40 days ago. Just 19 days remain before the election. Between them, the US and Yemeni governments have forestalled the time when the US has to admit a man–the sole evidence against whom was a flawed intelligence report written while Pakistanis were trying to convince us to pay a bounty for Latif–died of unnatural causes in their custody.

Surprise surprise! Leopold reports today that the government has now finished the autopsy and may turn it over to Yemen today (after which presumably they will finally accept Latif’s body, too).

The US government plans to turn over a long-awaited and recently-completed autopsy report to Yemeni Embassy officials in Washington, DC as early as today, but no one will say when or if the results will be made public.

An official at the Yemen Embassy, who declined to be named, said the embassy will not comment on the autopsy report’s conclusions or whether it determined how Latif died. Instead, the report will immediately be forwarded to government officials in Yemen’s capital, Sana’a. Someone there will decide “what the next step” will be, the embassy official said.

Not surprisingly, the delay pisses off Latif’s family.

Latif’s brother, Muhammed, said his family is distraught because they have been unable to properly mourn his older sibling and they are desperate to learn about the details of his death.

He questioned whether the delay was due to the presidential election.

“When will America apply the principles it claims to uphold?” Muhammed asked. “When will the American people demand the US government uphold the law? America is playing politics with a dead person. America doesn’t care about our rights, my brother’s rights or human rights. Yet, America claims they are favoring human rights all over the world. It’s hypocrisy.”

This is all so predictable it really raises questions about what kind of unnatural causes killed Latif.

What caused a death at Gitmo that was scandalous enough it had to be buried until after the election?

Lindsey Graham Must WANT the Terrorists to Have Kittens and Beard Dye

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In the last week, we’ve had two stories about how terrorists at Gitmo have made themselves comfortable.

First there was Michelle Shephard’s investigation into whether Majid Khan has a cat.

A week-long investigation into Guantanamo’s feline affairs couldn’t determine the case for sure.

“No detainees are provided pets, and detainees are not authorized to keep animals, as they present a health and sanitation hazard,” wrote Navy Capt. Robert Durand, the director of Joint Task Force Guantanamo’s Public Affairs, in a lengthy response to my cat query.

“Wild animals often carry diseases and pests such as rabies, lice, mites and other infections.”

However: “Recreation yards are surrounded by security fences that keep detainees in and unauthorized people out, but small animals can and do squeeze through any gaps.”

Durand’s emailed response goes on to describe the island’s wildlife: “The Cuban Rock Iguana is a protected species, and banana rats and feral cats lack natural predators, so these populations thrive in the areas immediately adjacent to the various camps.”Yes, but does Khanhave a cat?

“We do not discuss the details of any individual detainee.”

And now there’s Carol Rosenberg’s story explaining that Khalid Sheikh Mohammed hennaed his beard with berries and juice.

Tuesday, Army Lt. Col. Todd Breasseale said in response to a five-month-old question that Mohammed “did craft his own natural means” inside the prison camps to concoct his self-styled beard dye.

“I don’t have his exact procedure,” Breasseale said, “but can confirm the use of at least berries and juice to create a kind of harmless dye.”

We paid Halliburton a lot of money to build this prison–and still shell out $800,000 a year to keep terrorists there. But apparently Halliburton couldn’t even keep feral cats out?

I’m guessing Jose Padilla doesn’t have a kitten in Florence SuperMax. And even when Umar Farouk Abdulmutallab was held at the local minimum security prison in Milan, he didn’t show up in court in a camo vest and dyed beard (he asked to wear a Yemeni dagger, mind you, and he looked too young to grow one, mind you).

So I’m beginning to think that Lindsey Graham and all the others that insist terrorists must be held in Gitmo rather in the real prisons in the US want the terrorists to have kittens.

Upate: h/t to joanneleon for alerting me that, by my spelling, I tried to kill KSM’s beard rather than color it.

Obama Makes the Case for Releasing the Targeted Killing Memo

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As is typical, Jon Stewart conducted a more substantive interview with Obama last night than most “real” journalists (though between the women service members the USO seated in the front rows and Stewart’s admission that he gets fundraising emails from Obama, it was definitely a friendly interview). One huge item was missed by both Stewart and Obama: climate change and energy (Obama even brought up housing, dodging a HAMP question and blaming Congress for blocking refinancing for underwater homeowners).

But Stewart was one of the first people to ask Obama about his undelivered promises on Gitmo and fixing FISA. Josh Gerstein debunked some of Obama’s excuses on that front (and always, every time Obama claims he wants to close Gitmo, he should be asked why he has adopted worse policies at Bagram).

There’s just one detail Gerstein missed, which also deserves mockery.

Obama said this:

One thing that I’ve been absolutely clear about is America’s security comes first and the American people need to know how I make decisions when it comes to war, peace, national security, and protecting Americans. And they will continue to get that over the next four years of my Presidency.

Obama’s Administration executed an American citizen with no due process. And yet it refuses to release its legal justification for doing so (to say nothing of the explanation behind Samir Khan and Abdulrahman al-Awlaki’s death). Now, in the NDAA suit, the government refuses to explain who else might be targeted as a terrorist.

If Obama intends to keep Americans informed about how he makes decisions on war and peace, at the very least he needs to tell them when he can kill or indefinitely detain American citizens.

But I have no optimism that he will get any more transparent about those issues in a second term.

 

Is Obama Preparing the “Vote for Me or Mitt Will Indefinitely Detain You” Pitch?

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Jesselyn Raddack catches Obama promising to start talking about civil liberties on the campaign trail.

So on every issue domestically we’ve got differences, and I haven’t even — we haven’t talked about the fact that my opponent feels comfortable with Washington making decisions about women’s health care that women, Michelle tells me, are perfectly capable of making themselves. (Laughter and applause.)

We haven’t talked about what’s at stake with respect to the Supreme Court. We haven’t talked about what’s at stake with respect to civil liberties. [my emphasis]

Raddack proceeds to demonstrate the many ways that talking civil liberties won’t help Obama.

But she’s missing one thing. As I noted during the debate on the NDAA, Obama’s apologists essentially adopted a “Vote for Obama or Newt (who was then leading the GOP pack) will indefinitely detain you” approach to the NDAA.

But don’t worry about this breathtaking assertion of unlimited presidential authority, [Ken] Gude suggests, because Obama’s not a big military detention fan.

The Obama administration in word and deed has made it very clear that the president does not believe it necessary or appropriate to use military detention authority in the United States. Read more →

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