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6th Circuit: You Can Still Represent Yourself if Solitary Confinement Has Made You Incompetent

As expected, the Sixth Circuit wasted no time in denying Umar Farouk Abdulmutallab’s appeal of his conviction and sentence. The Circuit affirmed District Court Judge Nancy Edmunds on all matters.

Curiously though, in his opinion, Judge David McKeague spends relatively little time on the most contentious issue of the case: whether or not Abdulmutallab was competent to represent himself. He doesn’t really address an issue raised by Abdulmutallab’s Appelate lawyer, Travis Rossman, whether any competence determination be concurrent.

As I noted in my coverage of the hearing, Standby Counsel Anthony Chamber’s case for incompetence was not that Abdulmutallab was incompetent in 2009 when he was arrested or in 2010 when he fired his attorneys, but had been made in competent by 19 months of solitary confinement.

The question wasn’t whether Abdulmutallab was competent on August 17, 2011, Tukel suggested, when Edmunds did not call for a competency hearing, nor whether he was competent on October 12, 2011, when he plead guilty. Rather, it was whether he was competent on September 13, 2010, when he fired his defense attorneys. This was part of what seemed a broader government strategy to obscure the timing issues. He also argued all Abdulmutallab’s most bizarre behavior post-dated the August 2011 hearing. He argued that because Abdulmutallab attended college in England, he must be competent (!). He also argued that US v. Miller weighs against the standard on concurrent determination.

What Tukel didn’t provide much evidence about (beyond that Abdulmutallab always answered Edmunds’ questions about counsel as one would expect a defendant defending himself) is whether he was incompetent in August 2011.

Yemeni daggers. Allahu Akbar. Improper attire. Those are the external signs of “craziness” this hearing focused on.

And yet, in spite of the fact that Rossman repeatedly raised Chambers’ descriptions of Abdulmutallab’s “mental lapses,” no one focused on that question.

Which is crucial because, as Rossman argued (albeit weakly), part of the argument was that the conditions of Abdulmutallab’s confinement — 19 months of solitary confinement by the time of the August 2011 hearing — made him incompetent to defend himself.

And while McKeague pointed to one point where Abdulmutallab responded rationally to Edmunds’ questions, his most sustained case for Abdulmutallab’s competence rests on the Nigerian’s competence in carrying out his terrorist plot 21 months before he pled guilty (note, some of these claims are actually quite contestable, but I won’t deal with that here).

In order for Abdulmutallab to accomplish his goal of blowing up an aircraft over United States soil, Abdulmutallab had to make numerous calculated decisions. A brief overview of the steps that Abdulmutallab took in preparation for his mission is instructive:

  • Abdulmutallab studied the teachings of the radical Imam Anwar Awlaki, which prompted his decision to travel to Yemen for the purpose of meeting Awlaki.
  • While in Yemen, Abdulmutallab agreed to carry out the martyrdom mission.
  • In order to conceal his time in Yemen, Abdulmutallab decided to travel to Ghana before departing to Amsterdam.
  • Abdulmutallab had to come up with clever reasons for traveling to the United States when an airport screener in Amsterdam questioned his reasons for travel.

These actions show the deliberate, conscious, and complicated path Abdulmutallab chose to pursue in the name of martyrdom. Unlike the defendants in Pate and Drope, Abdulmutallab not only acted rationally, but was (nearly) able to execute a complex martyrdom mission. The complexity behind Abdulmutallab’s mission indicates the exact opposite of incompetence.

In other words, McKeague’s opinion most strongly argues that if you’re competent enough to (almost) carry out a terrorist plot then you are competent enough to defend yourself, whether or not 19 months of solitary confinement make you incompetent in the meantime.

Ramzi bin al-Shibh, take note.

Perhaps as significant a part of this ruling as the competency one is how the Circuit dealt with Abdulmutallab’s challenge to his statements at University of Michigan hospital, given the assault on Miranda in other terrorism cases. Not only had he not been Mirandized, but he had also been administered drugs, when he made those comments.

Basically, McKeague punted.

Abdulmutallab argues that the district court erred in failing to suppress the statements he made during his time at the University of Michigan Hospital. Abdulmutallab states that his testimony at the hospital was compelled and therefore the Fifth Amendment prohibited the use of that testimony in trial.

We will not address the merits of Abdulmutallab’s argument, as he waived any right to challenge the suppression of his statements when he entered the guilty plea. When a criminal defendant pleads guilty, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards [for effective assistance of counsel].” Tollett v. Henderson, 411 U.S. 258, 267 (1973). This court has held that a defendant who pleaded guilty may not appeal an adverse ruling on a pre-plea motion to suppress evidence “unless he has preserved the right to do so by entering a conditional plea of guilty in compliance with Rule 11(a)(2).”

I don’t question this decision, particularly given the decision on competence. But it’s important because commentators had pointed to Abdulmutallab’s case as precedent for the treatment of (among others) Dzhokhar Tsarnaev. But the Circuit declined to fully endorse his treatment, one way or another.

When WAS DOJ Going to Get around to Telling Us about Awlaki? Part One

Let me start by saying that I’m all in favor of DOJ releasing the information it has on Anwar al-Awlaki. I’m not complaining that they have released it. I’m just puzzling through why they have treated it as they have thus far. In this post, I’m going to review how the government came to tell one story at Umar Farouk Abdulmutallab’s trial last year, and another one–one that implicates Awlaki–last Friday. In a follow-up post, I’m going to explore why DOJ has refused to lay out the case they have against Awlaki before (including last October).

DOJ Hid Awlaki in October

As I have noted, when DOJ made its opening argument in Umar Farouk Abdulmutallab’s trial on October 11, 2011, prosecutor Jonathan Tukel said that Abdulmutallab told the FBI on Christmas Day 2009 that a guy named Abu Tarak had ordered him to attack the US.

And Abu-Tarak gave him the direction.

Remember, I said there were only three parts to the plan, he had to blow up a plane, it had to be a U.S. airliner and it had to take place over U.S. soil. Abu-Tarak reported that way, make sure it’s a U.S. aircraft, make sure it takes place over the United States.

And then the defendant told the FBI that on approximately December 6 or 7 he received the bomb from Abu-Tarak in Yemen. [my emphasis]

In the narrative they released last Friday, they said Awlaki gave that order.

Although Awlaki gave defendant operational flexibility, Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil. [my emphasis]

Now, the explanation I’ve gotten is that Abu Tarak is Awlaki, or rather, that Abu Tarak is an alias for Awlaki.

But assuming that explanation is correct (I’m not entirely convinced), it still permits several possibilities:

  • Abdulmutallab just made the name up in an effort to hide Awlaki–and, as we’ll see below–bomb-maker Ibrahim al Asiri’s role (but the FBI described Abdulmutallab as bragging about his ties to Awlaki and al Qaeda in his first interrogation)
  • The government already knew Abu Tarak was an alias Awlaki used (which doesn’t seem to be the case, since early reporting says Awlaki blessed the op, but didn’t say he was the cleric who ordered it)
  • Abdulmutallab later told the FBI that Abu Tarak was Awlaki’s alias
  • Abdulmutallab never confirmed Abu Tarak was an alias for Awlaki, but in later interrogations said that Awlaki had given the order to strike the US and therefore the government concluded that Abu Tarak must be an alias

(Here are two more of the most comprehensive stories based significantly on Abdulmutallab’s initial confession to give more of a sense of what they knew from Abdulmutallab’s first confession, on which Tukel’s opening was based.)

Dr. Simon Perry’s statement seems to rule out some of those possibilities, given that, even after reading redacted versions of 18 or 19 of Abdulmutallab’s interrogation reports, Perry treats Abu Tarak and Awlaki as different people: he describes Abu Tarak as someone besides Awlaki who significantly influenced Abdulmutallab.

Aulaqi was not the only influential fundamentalist in UFAM’s life. While residing at Abu Tarak’s residence in Sana, Yemen he was mainly confined to his residence and discouraged from any communication with the outside world (phone, email). During this period, UFAM spoke regularly with Abu Tarak and three other individuals who visited him daily, speaking with them about Jihad and martyrdom. [my emphasis]

Given Perry’s apparent understanding that Abu Tarak and Awlaki are different people, either Abdulmutallab never clearly said that Abu Tarak and Awlaki were the same person, any statement he made to that effect was redacted in the copies Perry read, or Perry wasn’t given the interrogation where Abdulmutallab made such a statement.(Note, however, that the only reference Perry makes to Abu Tarak cites the Christmas Day confession, so it’s possible Abdulmutallab never mentioned him again.)

With all that in mind, let’s review how Tukel told the story about Abu Tarak at the trial but is now telling a story about Awlaki at sentencing.

DOJ committed in August not to use information from “plea bargains”

Back in August, Abdulmutallab tried to mount a defense by making all of his confessions, one way or another, inadmissible. He wanted his initial confession thrown out because he had not received a Miranda warning, he wanted statements he made at UM Hospital thrown out because he was drugged up, and he wanted the statements he made while at Milan (pronounced My-Lan) Prison–all of them–excluded because they were made as part of a plea negotiation.

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

In response to this motion, the government said it would not use any of these statements “at trial,” so the judge should deny his motion as moot, which she did.

Defendant also filed a separate motion to suppress statements made to agents on other dates. R.59: Motion to Suppress Statements Made to Government Agents at the Milan Correctional Facility. The government will not seek to offer those statements at trial either, and therefore that motion should be denied as moot.

So basically, the government committed, on August 26, 2011, not to use anything Abdulmutallab said while at Milan during “the trial.” Read more

Why Has the Government Story about Who Ordered the UndieBomber to Attack the US Changed?

The government has told two or three slightly different stories about who directed and inspired Umar Farouk Abdulmutallab’s UndieBomber plot. The stories are all reconcilable (I’m not suggesting nefarious intent). But the differences in the three stories are worth noting, not least because the government killed Anwar al-Awlaki based on a claim he was the director of external operations of Al Qaeda in the Arabian Peninsula, reportedly based in significant part on a claim that he directed Abdulmutallab’s plot.

In October, prosecutor Jonathan Tukel said that an Al Qaeda member with whom Abdulmutallab stayed in Sana, Yemen named Abu Tarak ordered the UndieBomber to attack a US airline over US airspace. Today, they say Awlaki gave that order. [See update below for what I think is an explanation.]

Update: There’s a totally different explanation. Abu Tarak is an alias for Awlaki. Thus, while Abdulmutallab seemed to be hiding Awlaki’s identity in that first interrogation, that initial story is consistent with his later story (which is presumably why the government was happy just using the initial interrogation).

Al-Awlaki had significant influence–but so did Abu-Tarak and others

The most balanced of the three stories submitted by the government came in a memo, released today, from an expert on martyrdom, Dr. Simon Perry, basically laying out why Abdulmutallab, who hoped for martyrdom, is so dangerous (I’ll leave to others to assess the validity of Perry’s science; it’s not relevant to this post).

In a section describing who inspired Abdulmutallab to extremism, Perry makes the central inspirational importance of Anwar al-Awlaki to Abdulmutallab clear–going back to 2005–but describes the following as other influences:

  • Fundamentalist Islamists
  • Abu Tarak and three other visitors who visited daily while Abdulmutallab stayed with Abu Tarak in Sana leading up to his attack
  • Uthmann (?)
  • A Jihadist who preached in England
  • Other fighters in Yemen
  • A man from Al Qaeda he met in Yemen

Here’s the passage. (Note, Perry uses the acronym UFAM for Abdulmutallab; I’ve taken out the footnotes here for ease of reading, but they’re all to interrogations between Christmas 2009 to February 5, 2010.)

Manipulated by fundamentalists, such as Aulaqi and his internet lectures, UFAM claims that the main motivation for conducting the martyrdom mission included his interpretation of Koranic verses and his regularly attendance at prayers, where he met and interacted with Fundamentalist Islamists. UFAM was familiar with all of Aulaqi’s lectures, and they were an important motivator which led UFAM to decide to participate in Jihad. He began listening to the lectures in 2005 and reading Aulaqi’s writings, which motivated him to accept martyrdom as a possibility. Aulaqi was not the only influential fundamentalist in UFAM’s life. While residing at Abu Tarak’s residence in Sana, Yemen he was mainly confined to his residence and discouraged from any communication with the outside world (phone, email). During this period, UFAM spoke regularly with Abu Tarak and three other individuals who visited him daily, speaking with them about Jihad and martyrdom. UFAM discussed the concept of Jihad also with Uthmann who supported Mujahidin worldwide already from 2005. He was deeply influenced by a Jihadist who preached in England and elsewhere and used to meet with him intensively (as often as 3 times a week). UFAM associated with Aulaqi who frequently spoke of Jihad and interacted with other fighters, and while in Yemen, he met with a man from Al Qaeda who further deepened his conviction. [my emphasis]

Now, it’s not Perry’s job to describe the operation itself, so I’ll take nothing from his silence on who directed it. He makes it very clear Awlaki counselled Abdulmutallab on the appropriateness of martyrdom.

And Perry does say that Awlaki told Abdulmutallab he should prepare a martyrdom video in anticipation of a plane operation; Abdulmutallab made the video on December 2 or 3 (this passage is sourced to Interrogations on January 29 and February 9, 2010).

UFAM himself participated in this practice of preparing a martyrs’ video after he was told by Aulaqi that he would bring down a plane and that he should prepare a video. UFAM spent time thinking about his martyr’s video. Approximately on the 2nd or 3rd of Dec. 2009, UFAM made a martyr’s video with the help of two video technicians who brought the equipment. They brought a black flag with Islamic writing for the background as well as clothing and other props. It took them approximately 2 or 3 days to complete the video.

And the target was chosen, according to Perry, by Awlaki. But oddly, he did not source that assertion to any of Abdulmutallab’s interrogations.

He was prepared to fulfill his mission of Jihad against whatever enemy was identified by Aulaqi. UFAM did not choose the target or the mission, it was chosen for him. [Perry did not source this statement. Instead, in a footnote he points out his unsourced statement contradicted a comment Abdulmutallab made at his sentencing, in which the defendant said he was motivated by hate for the US.]

Awlaki chose the target

In the narrative released today (based, according to the government filing, on conversations of unknown date during which Abdulmutallab’s original court-appointed lawyers were trying to negotiate a plea bargain that ), Awlaki instructed Abdulmutallab to make a martyrdom video.

Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days.

Thus far, the government’s narrative matches Perry’s. But the government narrative provides more details about how Awlaki gave Abdulmutallab the final instructions about how to carry out the attack.

Although Awlaki gave defendant operational flexibility, Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil. Beyond that, Awlaki gave defendant discretion to choose the flight and date. Awlaki instructed defendant not to fly directly from Yemen to Europe, as that could attract suspicion. [my emphasis]

Abu Tarak chose the target

That’s funny, because back when prosecutors gave their opening argument on October 11, just 12 days after the government killed Awlaki in a drone strike, they told a different story. In that version, Awlaki provided the inspiration for Abdulmutallab.

So [Abdulmutallab] had the opportunity to do anything he wanted with his life. But instead he began listening to tapes of someone named Anwar al-Awlaki, a radical preacher, and he became committed to jihad, and he left graduate school and he went to Yemen. He wanted jihad and he sought it out and he found it.

That’s it–the sole mention of Awlaki in the case the government was willing to defend in court.

But a guy named Abu Tarak–the guy, according to Perry, with whom Abdulmutallab stayed in Sana, Yemen–gave Abdulmutallab the instructions.

So what else did the defendant say to the FBI? He said that he sought out and found al-Qaeda. He said that he was introduced at a mosque to someone he called Abu-Tarak, an al-Qaeda member. He told the FBI that he and Abu-Tarak spoke daily about jihad and martyrdom and supported al-Qaeda and Osama bin Laden. And martyrdom is, of course, a suicide operation where the person is engaged in jihad, and they carry out an operation, sometimes called suicide bombing, sometimes called martyrdom bombing, where the person intends to kill and to himself die in the act of doing it, and they usually think that they will end up in heaven as a result of doing that.

And the defendant said that he and Abu-Tarak spoke daily about ways to attack the United States. Daily.

And then in late November of 2009, remember, this interview is taking place on December 25th so he’s talking about a month or so earlier, Abu-Tarak suggested to the defendant that he become involved in a plane attack against the United States aircraft. And the defendant agreed to do that. And the plan was that the bomb would be concealed in the defendant’s underwear, and Abu-Tarak gave him training in detonating the bomb. And the way the bomb would work is that the defendant would inject liquid into a powder with a syringe and that would cause the explosion.

And Abu-Tarak told the defendant that the bomb would not be detected by airport security anywhere in the world. And he said that the bomb maker was a Saudi Arabian individual, and in fact, the defendant told the FBI that he met the bomb maker, he met the Saudi Arabian bomb maker while he was in Yemen. And Abu-Tarak told him that the plane would crash and it would kill everybody on board.

And Abu-Tarak gave him the direction.

Remember, I said there were only three parts to the plan, he had to blow up a plane, it had to be a U.S. airliner and it had to take place over U.S. soil. Abu-Tarak reported that way, make sure it’s a U.S. aircraft, make sure it takes place over the United States.

Read more

The UndieBomber Trial Gets Interesting

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

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

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

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

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

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

Particularly given the other filings in the case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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