NYPD’s Failed Ethnic Profiling Program

When Goldman and Apuzzo exposed NYPD’s domestic spying program last week, NYPD insisted it didn’t exist. So this time, they’ve posted documentary proof.

As they report, the domestic spying program employed a “Demographics Unit” that mapped out “ethnic hotspots” in the NY city area.

The program, it seems, would not even (and, as I’ve noted, did not even) accomplish what it aspired to do. While the ancestries of interest included far more nationalities than the federal government’s National Security Entry-Exit Registration System (which served a slightly different kind of ethnic profiling), adding obvious countries like Somalia and allies like Bahrain or Turkey, as well as the “American Black Muslim” ethnicity, it leaves out Nigeria (the Undie-Bomber’s nationality) and all South East Asian Muslim nationalities save Indonesia. Moreover, the group did not, apparently have the linguistic capabilities to infiltrate those groups (a slide lists Arabic, Bengali, Hindi, Punjabi, and Urdu as its linguistic capabilities).

And among the other details from the program, I find one more admission to be telling: the unit aspired to,

Identify and map ethnic residential concentrations within the Tri-State area.

Last week, I noted that the NYPD might have explained that they missed Faisal Shahzad because he lived in CT and received funds from Pakistan via a hawala on Long Island. But clearly both would fall within the scope of NYPD’s aspired goals (if not within its legal jurisdiction).

In other words, as comprehensive as this ethnic profiling program aimed to be, not only did it fall short in conception, but (by missing Shahzad and Najibullah Zazi) in execution.

NYPD’s Spooks Didn’t Find Two of the Most Significant Terrorists to Attempt Attacks on NYC

The AP’s Goldman and Apuzzo have another blockbuster counterterrorism article, this time describing how the NYPD has built its own intelligence service to target Muslims. It’s long, but it’s worth reading the whole thing. Keep an eye out for these key details:

  • The program in part serves to overcome CIA failures to recruit a more diverse workforce
  • The NYPD borrowed some of their community mapping techniques from Israel’s efforts in the West Bank
  • The NYPD shreds documents to keep their community mapping program secret
  • The NYPD uses informants in mosques without predication, something the FBI claims it won’t do
  • The city looked for Pakistani cab drivers with fraudulent licenses as a way to recruit informants
  • The NYPD passed information to the CIA via unofficial channels
  • A top CIA operative is working at the NYPD, while still on the CIA’s payroll

As comprehensive as this story is, it leaves out two of the program’s most significant failures. The NYPD claims that this program is successful because NY hasn’t been attacked.

For [retired CIA officer David] Cohen [who pioneered this program], there was only one way to measure success: “They haven’t attacked us,” he said in a 2005 deposition. He said anything that was bad for terrorists was good for NYPD.

Granted, Cohen made that statement in 2005.

But, first of all, it’s no longer true that “they haven’t attacked us.” The Faisal Shahzad attempt last year may have been unsuccessful, but it is an example of an attack launched with international support.Yet neither the NYPD (nor, for that matter, the FBI) had any clue about Shahzad before he attacked.

That may be perfectly understandable for the NYPD. After all, Shahzad lived in Connecticut. He used a hawala (the guy who ran it just signed a plea deal), but that was in Long Island, not the City. So the few hints that Shahzad might attack were outside of NYPD’s jurisdiction. The AP article notes the NYPD’s spooks operate far outside of the city, but in any case, the failure to identify Shahzad shows how much will remain hidden even from the NYPD’s invasive approach.

The case of Najibullah Zazi is still more problematic.

The NYPD had infiltrated Zazi’s mosque in NY, which was the focus of his conspiracy. They even used the Imam there, Ahmad Wais Afzali, as an informant. Yet they appear to have had no advance warning that Zazi and two friends from NY were training for an attack (the FBI is reported to have gotten their first lead on Zazi from the Pakistanis).

In other words, all the activity described in the AP piece included Zazi’s immediate circle of associates. Yet that activity apparently failed to identify Zazi as a threat.

Even worse, the NYPD’s confidence in Afzali compromised the FBI’s case. After the FBI tipped of the NYPD, the NYPD tried to develop its own leads. That included showing Afzali a picture of Zazi, which led Afzali to call Zazi’s father and then Zazi himself to warn them of the investigation.

Media reports quoting anonymous FBI officials have suggested the NYPD botched the case when it showed a picture of Najibullah Zazi, the Denver shuttle-bus driver at the heart of the investigation, to Ahmed Afzali, a Queens Imam and sometime police informant. Afzali, the reports say, first called Zazi’s father Mohammed, then Najibullah himself, alerting them to the probe. The FBI, which had been monitoring the calls, was then forced to move immediately to arrest the Zazis — much sooner than it had planned.


When Zazi traveled to New York ahead of the anniversary of 9/11, the FBI as a precaution alerted the NYPD. That’s when officers from the NYPD’s intelligence unit consulted Afzali. “It looks like they did this on their own initiative — they really trusted this Imam,” says the law-enforcement official. “But if they’d consulted with the bureau first, they’d have been told not to talk to anybody.”

The NYPD spoke to Afzali three times after they were tipped off to the investigation.

The NYPD’s freelancing apparently began when an Intelligence Division detective of its top secret Special Services Unit — identified in government documents as Dan Sirakowsky — telephoned Afzali on Sept. 10, a day before the eighth anniversary of the Trade Center attacks.

Afzali had been Sirakowsky’s confidential informant, or C.I., since 9/11.

Sirakowsky told Afzali the department needed to speak to him right away. Minutes after the phone call, a detective and a sergeant showed up at Afzali’s home with pictures of Zazi and three of his alleged accomplices.

According to [Afzali’s lawyer] Kuby, Afzali recognized Zazi and two others. They had been students in Afzali’s mosque class years before. The police then asked Afzali to find out more about what the three were up to in the city.

In addition, it appears that the NYPD shared information on the Zazi investigation with cops who did not have clearance.

Four NYPD detectives have been hauled before a federal grand jury probing leaks of top-secret information about a terror plot to blow up city subways, sources told the Daily News.


The inquiry is said to be focusing on leaks of sensitive information from the FBI-NYPD Joint Terrorism Task Force to cops who did not have clearance.

Some of the information ended up in the press.

(Read that entire article for a sense of how Ray Kelly has retaliated against those who might expose the abuses and failures of his intelligence division.)

In short, not only did this elite intelligence unit not find the one guy who has actually attacked NYC, but it significantly endangered the investigation into another terrorist who came close to attacking NYC.

Diplomats Concede Drones Might Destabilize Nuclear Armed Pakistan

WSJ reveals that some folks within the Obama Administration have finally started to weigh the possibility that our drone strikes in Pakistan do more harm than good. Unfortunately, in the fight over whether the US should rein drone strikes in, those folks appear to have lost the debate … for now.

The White House National Security Council debated a slowdown in drone strikes in a meeting on Thursday, a U.S. official said. At the meeting, CIA Director Leon Panetta made the case for maintaining the current program, the official said, arguing that it remains the U.S.’s best weapon against al Qaeda and its allies.

The result of the meeting—the first high-level debate within the Obama administration over how aggressively to pursue the CIA’s targeted-killing program—was a decision to continue the program as is for now, the U.S. official said.


Yet an increasingly prominent group of State Department and military officials now argue behind closed doors that the intense pace of the strikes aggravates an already troubled alliance with Pakistan and, ultimately, risks destabilizing the nuclear-armed country, said current and former officials familiar with the discussions.

What’s fascinating about the article, though, is that for all the discussion of the political problems the drones are causing, there’s no discussion of how drones have served to radicalize potential terrorists.

These diplomats and officials say the deep vein of anti-Americanism that runs through Pakistani society forces its elected and military leaders, including army chief Gen. Ashfaq Parvez Kayani, to distance themselves from Washington to avoid a popular backlash.

“What’s worrying a lot of us is whether we’re turning people who should be our natural allies into our adversaries,” said a U.S. diplomat in Pakistan.

That is, this debate appears to still be focusing on whether drones make key Pakistani elites separate themselves from us. There’s not one mention, however, of people like Faisal Shahzad–the Times Square bomber–who blame drones for their turn to terrorism.

The Abu Zubaydah Standard in Obama’s Miranda Memo

Here are the claims the Bybee Two memo premised its authorization to torture Abu Zubaydah on:

As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization,


Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas.

Compare that with the description of an “operational terrorist” whose Miranda rights may be delayed under a memo issued by DOJ last October.

For these purposes, an operational terrorist is an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation.

The two claimed preconditions for torturing AZ–that he was a high ranking member of an international terrorist group and knowledgeable about operational details of pending terrorist operations–are exactly the same as two possible premises (of three) for delaying an American detainee’s Miranda warning.

Only, with AZ, the CIA had to send John Yoo a bunch of information purportedly proving their claims before they got to torture AZ.

Here’s how such claims will be checked under the Miranda exception.

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval.


As noted above, if there is time to consult with FBI-HQ (including OGC) and Department of Justice attorneys regarding the interrogation strategy to be followed prior to reading the defendant his Miranda rights, the field office should endeavor to do so. Nevertheless, the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public, and how long the post-arrest interview can practically be delayed while interrogation strategy is being discussed. [my emphasis]

In other words, while FBI says it’d be nice if the folks holding the detainee consult with the lawyers in DC before delaying a suspect’s Miranda warning, they provide a great big invitation–“the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public”–for them not to do so. And far be it for FBI Agents to refuse such a kind invitation!

So an FBI Agent in the field can decide on his own (for reasons of urgency, you understand) not to Mirandize a guy that he has decided, with no review, is a top ranking terrorist or knows about an upcoming terrorist attack. And a plain reading of the text doesn’t even require that the terrorist attack be related to international terrorism; it could be an environmental attack, for example. If an FBI Agent believes some vegan wants to free a bunch of pigs used in experimentation, he can declare it a planned terrorist attack and hold the vegan without Miranda warning. Since Main DOJ does not require that it oversee this process, it will be able to claim it has no responsibility for any abuses that result.

It will look like this in the eventual DOJ IG Report: “No one could have predicted that FBI Agents would abuse a policy written so broadly.”

Now, as it happens, when the government started making claims in court about AZ, in a venue in which both an independent judge and AZ’s lawyer could challenge what evidence the government actually turned over, the government chose not to claim that he was either a top-ranking al Qaeda member or aware of upcoming terrorist plots.

There’s good reason they didn’t make such claims. That’s because he wasn’t. As the government eventually admitted to AZ, after they waterboarded him 83 times. And after spending the better part of a summer chasing down the terrorist plots he invented to try to get the torture to stop.

The CIA IG Report explained how it was that the government came to have such a mistaken understanding of AZ and others.

The Agency lacked adequate knowledge of what particular Al-Qa’ida leaders–who later became detainees–knew. This lack of knowledge led analysts to speculate about what a detainee “should know,” vice information the analyst could objectively demonstrate the detainee did know.

But don’t worry–I’m sure a couple of FBI Agents from, say, Iowa, working alone their first terrorism case with no required review from Main DOJ won’t make the same kind of assumptions about what a detainee should know. Really.

Now, don’t get me wrong. I’m not saying FBI Agents would use a Miranda delay to waterboard a detainee (waterboarding is CIA turf, after all). The CIA system clearly provided the opportunity for much more abuse.

But consider the one detainee known to be treated in such a fashion: Faisal Shahzad. The government claimed a central reason why they had to hold him without charge is that they needed unfettered access to him, 24/7, so they could immediately verify any new intelligence they picked up. Call me crazy, but interrupting a detainee repeatedly, 24/7, to ask a question sounds like a great way–even better than the Frequent Flier program used at Gitmo–to sleep deprive someone under the guise of doing something else. Since Shahzad eventually plead guilty (remember that Pakistan basically detained his family members, perhaps including his wife and kids, while he was being questioned), the judge never really challenged whether his confession was coerced.

So we only have to look at the one prior case where such a delay was used to understand what kind of abuse can be done during the time before a detainee gets a lawyer.

So perhaps I am justified to be horrified by the parallel structure used in this memo and that used in John Yoo’s notoriously problematic Bybee Memo.

If We’re Eliminating Symbols Used for Recruitment, Why Not Drones?

Here’s what Obama said in response to a question of whether and why he was going to close Gitmo.

Q But it makes me wonder where you are, sir, at about the two-year mark on Guantanamo, when closing it was one of your initial priorities, sir?

THE PRESIDENT: Obviously, we haven’t gotten it closed. And let me just step back and explain that the reason for wanting to close Guantanamo was because my number one priority is keeping the American people safe. One of the most powerful tools we have to keep the American people safe is not providing al Qaeda and jihadists recruiting tools for fledgling terrorist.

And Guantanamo is probably the number one recruitment tool that is used by these jihadist organizations. And we see it in the websites that they put up. We see it in the messages that they’re delivering.

And so my belief is that we can keep the American people safe, go after those who would engage in terrorism. And my administration has been as aggressive in going after al Qaeda as any administration out there. And we’ve seen progress, as I noted during the Afghan review.

Every intelligence report that we’re seeing shows that al Qaeda is more hunkered down than they have been since the original invasion of Afghanistan in 2001, that they have reduced financing capacity, reduced operational capacity. It is much more difficult for their top folks to communicate, and a lot of those top folks can’t communicate because they’re underground now.

But it is important for us, even as we’re going aggressively after the bad guys, to make sure that we’re also living up to our values and our ideals and our principles. And that’s what closing Guantanamo is about — not because I think that the people who are running Guantanamo are doing a bad job, but rather because it’s become a symbol. [my emphasis]

Now, I actually think this is not a bad answer. I’d love to see Obama go out and repeatedly talk about how important it is for our national security to close Gitmo. I’d love for Obama to criticize those who are preventing the closure of Gitmo for making our country less safe. And I don’t doubt that Gitmo is still a dangerous symbol.

But I wonder whether it is the symbol anymore. I question whether Gitmo is the most potent recruiting story for al Qaeda.

After all, almost everyone of the people who have recently attacked us–people like Faisal Shahzad–have cited not Gitmo, but our drone strikes in Pakistan, our attacks that have killed so many civilians, as the reason they’ve attacked the United States.

Now maybe it’s the case that the US claims to oppose torture, but doesn’t claim to oppose collateral damage in its pursuit of empire. Maybe dropping drones in Pakistan and elsewhere doesn’t–as Gitmo does–violate “our values and our ideals and our principles.”

And maybe the whole question is moot, since Obama’s not going to close Gitmo anytime soon anyway.

But if Obama thinks it important to eliminate the symbols al Qaeda uses to recruit people to attack America, shouldn’t he be considering ending drone strikes, too?

Can White People Be Charged with Use of a WMD?

Let’s look at the following two examples of men arrested in the last week to see how the federal crime “Use of a Weapon of Mass Destruction” is used.

Mohamed Osman Mohamud: Mohamud was arrested Friday on charges of “attempting to use a weapon of mass destruction” for trying to detonate what he believed to be a car bomb in the crowd attending Portland, OR’s Christmas tree-lighting ceremony. Here’s how the FBI described that bomb:

The bomb was contained in the back of a late-model, white full-size van. The bomb was inert and constructed by FBI bomb technicians. It consisted of six 55 gallon drums containing inert material, inert detonation cord, inert blasting caps, and approximately one gallon of diesel fuel which gave off a strong odor. In the front seat of the van agents placed a detonation mechanism which consisted of a cellular telephone, a 9volt battery, an arming switch and a phone-jack plug.

The FBI set up this sting possibly because of a tip from Mohamud’s family, and definitely because of some emails Mohamud sent to a friend in Yemen and–later–Pakistan, and some pathetically unsuccessful attempts to email someone he allegedly believed could help him join Jihad.

George Djura Jakubec: After Jakubec’s gardener tripped off an explosion in his back yard last week, local authorities tried to search Jakubec’s house, which was said to have “the largest quantity of homemade explosives found in one location in the history of the United States,” including PETN (the explosive the TSA agents are searching for when they grope you) and HMTD (which has been used by al Qaeda and other Islamic terrorists). But authorities withdrew, twice, after determining Jakubec’s house too cluttered and dangerous to search. Jakubec is being held in county custody on 12 state charges of possession of a destructive device in public (one of which is tied to the injuries suffered by his gardener), 14 state charges of possession of the ingredients to make a destructive device, and two charges of robbery tied to bank robberies on June 25 and July 17 of this year.

So Jakubec–who had apparently large quantities of the explosives that terrorists favor and the ability to make more–is in San Diego County custody on state charges. Mohamud–who never had contact with a live bomb–is in federal custody on a charge that carries a life sentence.

Now, as odd as it may seem, explosives do qualify as WMD under this law, which includes chemical, biological, and radioactive weapons, as well as “destructive devices” including things like bomb, grenades, and missiles. The FBI is charging Mohamud with the following:

A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction against any person or property within the United States, and the mail or any facility of interstate or foreign commerce is used in furtherance of the offense shall be imprisoned for any term of years or for life.

I guess they’re arguing this constitutes an “attempt” to use a WMD (the car bomb), even though no WMD existed. And I assume they’re claiming an interstate or foreign commerce because they first contacted Mohamud pretending to respond to his unsuccessful emails to an alleged al Qaeda recruiter, though the bomb site is also in front of the US Appeals Court which they presumably could define as a federal target if pressed, though they don’t seem to be doing that.

Now, as compared to Mohamud, there may be reasons why they can’t or haven’t charged Jakubec with use of a WMD. Quite simply, they don’t know if Jakubec planned to use this arsenal, and if so, on what. Mind you, they appear to have decided they couldn’t construct an elaborate plot to find out because if they did they risked having him blow up southbound I-15 by mistake; they had to arrest him right away because his explosive were such a threat.

Which is not dissimilar to a pair of guys from last year. Najibullah Zazi, because his overseas contacts got him targeted for surveillance, got busted before his efforts to bomb the NY subway could develop completely. Zazi now appears to be cooperating with prosecutors. But Benjamin Kuzelka, who was developing the same TATP explosive as Zazi was, and who had white supremacist literature at his house when he set off an explosion, got off with a four year sentence.

Mind you, I think Zazi is a great person to charge with using a WMD (as is Faisal Shahzad, who was also charged with using a WMD). But I bet Kuzelka’s associates weren’t cross-checked for their hydrogen peroxide purchases, as Zazi’s appear to have been.

That’s my biggest concern: that the quickness with which the government slaps a WMD charge on someone experimenting with explosives reflects its interest or disinterest in fully investigating that person’s goals and associates. One of the more notable cases of a white supremacist plotting to use WMD–with actual chemical weapons, in fact–died in prison without ever being charged with WMD charges and before authorities discovered what he intended to do with his chemical weapons.

That said, we do have at least one very notable case where white people got charged with using and conspiring to use WMD: the Hutaree militia. Mind you, the FBI found them before they exploded themselves or their gardener.

Pakistan Promises to Arrest Three “Very Bad Boys” Tied to Times Square Bombing

Last week, the US put the Tehrek-i-Taliban Pakistan on its official terrorist lists and charged its leader, Hakimullah Mehsud, with something that was almost certainly not a crime. Oddly, though, DOJ did not charge Mehsud which actions they verbally alleged he committed that actually are a crime: conspiring with Faisal Shahzad in his attempted bombing of Times Square. I took from that that either DOJ knows Mehsud was not directly involved in the bombing (contrary to what they said publicly and Shahzad testified in court), or that they simply have no evidence of his involvement in spite of the reported cooperation of Faisal Shahzad.

Which is why I find it interesting that Pakistan has said it will charge (but apparently has not yet done so) three men in connection with the Times Square bombing.

Officials say the three men helped Shahzad to travel to northwestern Pakistan and meet militant leaders there, and sent him $13,000 in the U.S. when he ran short of money. The Pakistani official also said the charges won’t merely cover the plot by Shahzad – who was trained by terror goons in the northwest tribal hotbed of Mir Ali, near Afghanistan.

“They gave refuge to two suicide bombers who blew themselves up in Kashmir,” said the security official, referring to the swath of mountains India and Pakistan have fought over for decades. The businessmen who helped Shahzad were identified as Shoaib Mughal, Shahid Hussain and Humbal Akhtar.

“Those are very bad boys,” the Pakistani official said.

So what has the hold up been given that the Pakistanis presumably have testimony from Shahzad, wire transfer evidence, and documents they mention elsewhere in the article?

Last week, I wondered whether the whole campaign roll-out against the TTP was designed to help Pakistan overcome its reluctance to target the TTP, which has been very useful for Pakistan. And particularly since Shahzad has ties to the military through his retired Air Force father, whether Pakistan was trying to shield powerful people tied to the plot.

Suffice it to say this is feeling a lot like Pakistan’s “crack down” on AQ Khan.

On Tuesday, General Petraeus Achieved Victory in Oceania; On Wednesday, He Led Us to War against Eastasia

The day after Obama declared victory (sort of) in Iraq, the Administration announced a whole package of sanctions against the Pakistani Taliban, Tehrik-e Taliban. The sanctions:

  • Designate TTP as a Foreign Terrorist Organization
  • Designate TTP as a Special Designated Global Terrorist Organization
  • Designate TTP’s two leaders, Hakimullah Mehsud and Wali Ur Rehman, as Special Designated Global Terrorists
  • Offer of $5 million reward leading to Mehsud or Rehman’s arrest
  • Charge Mehsud in connection with the Khost killings

Forgive me if I dismiss what are real measures against a genuinely dangerous organization. But I can’t help but suspect this lays the ground work to ensure we have a war against terror to fight (and with it, expanded executive powers) beyond July 2011.

Charging a formerly dead guy

Perhaps my favorite comment on the criminal charges came from reporter James Gordon Meek:

DOJ charges Pak #Taliban emir Hakimullah Mehsud in absentia for killing 7 CIA officers in #Afghanistan 12/09. Anybody tell CIA’s drone unit?

Presumably, Meek is referring to claims a US drone strike killed Mehsud in January, a claim the CIA once judged to have a 90% likelihood of being correct. There’s not much point in arresting Mehsud if he’s been dead nine months.

But the mention of CIA’s drone campaign in Pakistan raises a bunch more problems with DOJ’s charges. For starters, Mehsud’s wife–a civilian–was reportedly killed in that January drone strike too. Both the uncertainty the CIA has about its purportedly scalpel-like use of drones and the civilian deaths they’ve caused illustrate the problem with drones in the first place. Civilians–CIA officers–are using them in circumstances with significant collateral damage. It would be generous to call the use of drones in such situations an act of war; some legal experts have said the CIA officers targeting the drones are as much illegal combatants as al Qaeda fighters themselves.

The affidavit describing the evidence to charge Mehsud doesn’t say it, but underlying his alleged crime is the potential US crime of having civilians target non-combatants in situations that cannot be described as imminently defensive.

Charging someone for revenge on CIA’s illegal killing

Which leads us to the crimes for which they’re charging Mehsud: conspiracy to murder and conspiracy to use a WMD (bombs) against a US national while outside of the United States. Basically, DOJ is charging Mehsud with conspiring with Humam Khalil Mulal al-Balawi, the Jordanian doctor who committed the suicide bombing at Khost that killed 7 CIA officers and contractors.

Now, there’s not much doubt that Mehsud did conspire with al-Balawi. I just doubt whether it could be fairly called a crime. The affidavit describes two videos in which Mehsud stands side by side with al-Bawali. In one, both al-Balawi and Mehsud describe the upcoming attack as revenge for killings in the drone program–most importantly, of Mehsud’s brother Baitullah Mehsud from a CIA drone strike in August 2009.

Al-Balawi then continues alone: “This itishhadi [martyrdom-seeking attack] will be the first of the revenge against the Americans.” After additional declarations of revenge by al-Balawi, MEHSUD resumes speaking in Pashtu, explaining the motive for the upcoming suicide attack by al-Balawi, that is the death of the former emir of the TTP, Baitullah Meshud [sic] which MESHUD [sic] attributes to the Americans.

Remember, too, that al-Balawi was a double agent. The Americans believed he was helping them target people, people just like Mehsud. That means al-Balawi (and presumably through him, Mehsud) knew he was specifically targeting those behind the earlier killings in Pakistan when he killed them.

So al-Balawi successfully killed people who were either civilians, in which case their own strikes at Baitullah Mehsud and others may be illegal, or people who were acting as soldiers, in which case the attack on their base was presumably legal under the law of war. And for helping al-Balawi, DOJ is now charging Mehsud with conspiracy.

Read more

How the Government Explains Uninterrupted Access to Faisal Shahzad

Close to midnight on May 3, authorities arrested Faisal Shahzad for attempting to bomb Times Square.

Over the following two weeks, the authorities questioned Shahzad, even as Pakistani intelligence detained Shahzad’s family members. The government told the press that Shahzad had waived his right to be charged in court and (though no one focused on this) a lawyer. Finally, on May 18, Shahzad appeared in Court and got a lawyer.

It turns out that on May 12, nine days after Shahzad was arrested, the US Attorney’s office wrote a letter–which they requested remain sealed–to the Court, explaining Shahzad’s status. Yesterday, they wrote a second letter asking that a redacted version of the first one be docketed.

The May 12 letter explains that each day that he was held, Shahzad waived his rights.

On May 4, 2010, subsequent to his arrest, the defendant, without counsel, knowingly and voluntarily waived his Miranda rights and executed a written waiver of speedy presentment. On each day since his arrest, the defendant has been re-advised of his Miranda rights and his right to speedy presentment, and on each day through and including the date of this letter he has executed a new written waiver of rights.

Note the focus here–not on his waiver to a lawyer, per se, but Miranda rights and the right to appear in court more generally. All of which, of course, contribute to forgoing a lawyer.

Which is why the two redactions in the letter are of interest, as at least one appears to pertain to the government’s uninterrupted access to him.

Since his arrest, the defendant has been questioned–and continues to be questioned–by federal agents on a number of sensitive national security and law enforcement matters for the purpose of preventing future attacks, identifying associates of the defendant and possible facilitators of the attempted attack, as well as gathering other actionable intelligence.  [half paragraph redacted]

Federal law enforcement agents are vigorously and expeditiously pursuing leads relating to this and other information provided by the defendant, a process which has required the participation of hundreds of agents in different cities working around the clock since the defendant’s arrest. Uninterrupted access to the defendant has been, and continues to be, critical to this process, which requires, among other things, an ability to promptly verify with him the accuracy of information developed in the investigation. [2 lines redacted] In short uninterrupted access has been, and continues to be, extremely beneficial, if not essential, to the investigation. [my emphasis]

The letter says nothing about what changed all this earlier this week. Nor does the May 19 letter explain whether the process (and the uninterrupted access) remained the same between May 12 and May 18. And neither letter includes Shahzad’s daily waivers.

But what the May 12 letter does suggest, at the very least, is that one reason the government was happy that Shahzad had waived his rights (and, presumably, the reason they’ve suddenly embraced the idea of “modernizing” Miranda) is that they wanted to have 24/7 access to Shahzad.

Sort of makes you wonder how much sleep Shahzad got during the two weeks he was available 24/7 and didn’t have a lawyer.

Faisal Shahzad Gets a Lawyer

Faisal Shahzad rather suddenly got arraigned and got a lawyer yesterday. Josh Gerstein noted that the arraignment happened on the 15th day since Shahzad’s arrest–the lower range of time the Obama Administration has floated for its changes to Miranda. But the LAT reports that Shahzad decided he no longer wanted to be questioned by interrogators.

Shahzad did not enter a plea. But he spoke briefly during the 10-minute appearance with his attorney, public defender Julia Gatto, in the courtroom. He reportedly asked earlier in the day for an attorney and said he no longer wished to speak with interrogators, a decision that prompted the court arraignment.

There’s no reporting on it, but I do wonder whether this docket item is related:

ORDER FOR MEDICAL ATTENTION FORM as to Faisal Shahzad. (Signed by Magistrate Judge James C. Francis on 5/18/2010)(gq).

(Shahzad’s lawyer didn’t mention medical attention in the court appearance, as far as I can tell, though she did request that he start receiving Halal food.)

In a separate story, the LAT reported that Pakistan has arrested an Army major in connection with Shahzad’s attack.

Investigators have arrested a Pakistani army major linked to the prime suspect in the botched attempt to bomb New York City’s Times Square early this month, Pakistani law enforcement sources said Tuesday.

The major’s involvement with suspect Faisal Shahzad, who was arrested at John F. Kennedy International Airport as he attempted to fly to Dubai, United Arab Emirates, remains unclear. Law enforcement sources said the major had met Shahzad, a naturalized U.S. citizen of Pakistani descent, in Islamabad, the capital, and was in cellphone contact with him.

The LAT doesn’t say when the arrest happened, but it coincides with a sudden visit by Leon Panetta and National Security Advisor to Pakistan.

Obama’s National Security Advisor Jim Jones and CIA Director Leon Panetta have arrived in Pakistan, and unusually, given security concerns, the White House is ackowledging their travel while they are on the ground.

“In light of the failed Times Square terrorist attack and other terrorist attacks that trace to the border region, we believe that it is time to redouble our efforts with our allies in Pakistan to close this safe haven and create an environment where we and the Pakistani people can lead safe and productive lives,” National Security Council spokesman Mike Hammer, accompanying them, explained the trip.


Jones’ trip seemed to come about at short notice. He had been due to speak tonight at a conference in Washington, but the group announced yesterday that it had been informed he had to travel.

Also yesterday, the John Brennan stated that the High Value Interrogation Group (HIG) had been involved in Shahzad’s interrogation, which may be a response to Mark Hosenball’s reporting that the HIG had only a limited role in Shahzad’s interrogation. Read more