AG Holder Oversight Hearing, Two

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You can follow along on the Committee stream or CSPAN3.

Durbin: No complaints that Bush decided to try Moussaoui in Article III Court. Can you tell me what distinction might be.

Holder: Learned a lot from Moussaui trial. Determinations made about best forum for particular case. Best interest of American people.

Durbin: Mukasey: I was in awe of our system. We are a nation of law.

Durbin probably shouldn’t be arguing that Moussaoui was 20th hijacker, so long as al-Qahtani is unresolved.

Durbin: SCOTUS decisions in Hamdan and Congress, to come into conformance with requirements. Only 3 successfully tried in military tribunals. Are you not also aware of procedure that some will challenge this new decision.

Holder: Distinct possibility. That is something we will not have to deal with in bringing KSM in NYC. Question of legitimacy not a problem at all.

Durbin: Very close parallel. MCs have procedures not ruled upon by SCOTUS. I think those are things that should be made part of this record.

Durbin: Thompson IL which would be Gitmo North. New perimeter fence, if indeed most secured facility in America. Never had escape from SuperMax. 35 terrorists in IL.

Cornyn: [Has no voice, apologizes] Do you acknowledge legitimacy of MCs?

Holder: Absolutely. Legitimized them.

Cornyn: So your decision to try in Article III not compelled by any law.

Holder: Judgment, discretion, experience, interaction with Sec Def, all of that went into determination.

Cornyn: Does POTUS agree?

Holder: Have not had direct conversation with him, but consistent with his acrhives speech.

Cornyn: Miranda rights on battlefield?

Holder: misreporting. A very small number have been read miranda warnings after military lawyers, civ lawyers, some reason to give mirandas.

Cornyn: You support miranda rights to some suspected terrorists.

Holder: I defer to people in field. It gives us another option.

Cornyn: Should KSM have been read miaranda.

Holder; There’s no need, we don’t need his statements.

Cornyn: It’ll be a judge at trial or appellate level.

Holder: Yup. Confident that way in which this will be structured, needful miranda warnings, there is no need.

Cornyn: He did ask for lawyer, when he was detained.

Holder: I do remember that.

Cornyn: He’s getting his wish.

[WTF are they so worried about him getting THIS wish, but so pissed that Holder is not allowing him to get his wish to be martyred.]

Cornyn: Risks of KSM not being prosecuted bc didn’t get his rights.

Holder: No one can say with certainty. As I look at facts, detention of him. Evidence. I’m very confident that miranda issues not going to be part.

Cornyn: You won’t make that decision. Isn’t it the fact that you won’t make decision on miranda.

Holder: I hope that judge takes into account very real need for security.

Cornyn: If judge orders KSM to be released?

Holder: Hard to imagine set of circumstances if he were acquitted he would be released into US. Other things we have capacity to do.

Cornyn: You can’t hold someone indefinitely.

Holder: You can certainly hold people in matters pending.

Leahy: Might say only half-facetiously a lot of people in NY might like him to be released on streets of NY, he might not want to be released.

Cardin: Confidence in trial of this terrorist. Advantages of trying terrorist in Article III. Established process, used before. Credibility of our system. Our ability to showcase using American values. A lot of positive reasons to use Article III courts. Particularly the history of ignoring our own laws. F-up on Kohl’s point. Closing of Gitmo. Feingold’s point, informed decisions to classify.

Cardin: Cybersecurity. May be able to prevent 80% of attacks. We have to do better than that. HOw high a priority on this issue.

Holder: Need help of Congress. Have to be partners dealing with 21st century issue.

Cardin: Section on civil rights. Applauding you to continue to make civil rights priority. Voting rights, military personnel on absentee ballots, native americans, redistricting. To protect AMerican rights of voting.

Coburn: Letter about OKs freedmen.

Coburn: Terrorists serving lengthy sentences. HOw many picked up in Afghanistan. How many interrogated by CIA.

Holder: Will answer those questions.

Coburn: Recovery board. Submitted reports that were fraudulent. Plan to prosecute that fraudulent behavior?

Holder: Yes, one of the things we mentioned yesterday, misuse of recovery act funds. Fraud connected to it. partners at Treas and SEC, that is one of the priority areas.

Coburn; Going to be big. Over $50 billion. At least oversight. Hate crimes issue. Murder of some of recruiters in AR. Have you given any thougths, especially in light of Ft. Hood.

Holder: Hate crimes bill says such actions are potential hate crimes. Mandatory min Sessions introduced. Deals with set of facts you’re talking about.

Coburn: VRA. Kingston NC. In fact, in NC, only 9/550 localities hold election on partisan basis. 7/9 minority voted to eliminate, Civil Rights reversed. Would like to hear comments about that. How you justify reversing that, when majority think it’s prudent.

Holder: Written response.

Coburn: Really concerned. Drug abuse. Significant power of marijuana use to lead to other drug use. Federal crime to use or distribute it. Did you personally approve. Dramatic break?

Holder: it’s a break, logical break, given limited resources, the use of marijana in way state laws prescribes, for medical purposes, directive indicated that we are not blind, to extent people using to do things not consistent for state law, the federal law is still there. A number of factors that are set out. Mexican cartels make most of their money from importation of marijana into US.

Coburn: 95% of people in CA who have license for marijyana don’t have a real illness, they have a desire to smoke marijuana.

Coburn: #1 risk for our kids not obesity, it’s use of marijuana.

Whitehouse: Klobuchar was here first.

[What a gentleman]

Klobuchar. Thank you Sen Whitehouse. You mentioned tragedy at Ft. Hood. One of several Senators who went to memorial service. Waiting in line for physical ready to deploy. Family huddled next to that picture. Interested in thorough investigation, get results not only for strong prosecution. Make sure doesn’t happen again.

Holder: Obama unquivocal direction to find out what happened.

Klobuchar: Bread and butter. So many questions understandably about trial. Diligent citizens caught Moussaoui. First of all, focus on security. Mayor and police chief. Interested in getting these guys. Conviction rate is 90%.

Holder: 94%

Klobuchar: NY

Holder: Lawyers from EDVA and SDNY. NY has tried these cases before. Hardened detention facility. Means by which person can go from jail to court house. Marshalls service report.

Holder: Medicaid fraud. People who were once engaged in drug dealing, moving into this area, safer and easier. Determined to put an end to that. Sebelius and I giving particular attention. Already announced arrests in variety of cities.

Franken: Pick up on rape kit matter that both Chair and Klobuchar brought up. Important to realize, pro law enforcement. Protects innocents, brings victims closure. What’s gone wrong with this?

Holder: Don’t know why it has not worked.

Franken: 5% of world’s pop and 25% prisoners. So many drug problems and mental health. We’re essentially sending kids who are in possession of drugs, sending them to crime school. 2/3 come back within 3 years. More than a third of MN have drug courts. Offenderse in drug courts 10X more likely to continue treatment.

Holder: Supported with budgets. Support data driven analysis (recidivism v treatment). On this basis will be formulating policy.

Franken: Might I suggest increase of drug rehab in prison. Lot of people who should be in prison. It’d be nice if while in there they got treatment. One thing on health care fraud. I’d like to see those people in prison. Those folks might belong there more than people that are simply addicted to drugs. Trafficking in women. Trafficking of native american women, and international trafficking, trafficked into this country. Because some of these cases are sent to ICE, have a disincentive to report these crimes. That’s something that needs to be looked at.

Holder: Paying particular attention to plight of women on reservations. If you look at levels of violence that young girls and women subjected to. Simply unacceptable. President followed up on. Intl trafficking something we need to look at as well, to extent that that prevents enforcement in trafficking.

Whitehouse: React to two things. One is, inadvertantly disparaing tone about federal prosecutors. I hope itis inadvertant, having had some experience in that world, I’m extremely proud, I’ve had prosecutors go to court in body armor, have to explain why security system bc of threats. They are among the best lawyers in our country. I didn’t like the tone I was detecting. One in favor of prosecutorial independence. To extent that you get criticized that your decision is unpopular, the implication is taht prosecutors should seek to make decisions that meet with popualr opinoin, popular opinion a very dangerous bellweather. It gets worse when you move from popular opinion to legislative opinion. Very significant reasons why I as prosecutor didn’t want to hear from legislators. Very good reasons why isolated from these opinions. Nobody should not react that a prosecutor should not listen to threats. A prosecutor should not make decision on legislative opinion, TO make it worse is to make prosecutorial decisoin by talk show opinion. Want to stand by principles that have worked for hundreds of years. People like us–Senator–have no business attempting to influence prosecutors decision. In article III courts, tens of thousands. Everything leaves trail of precedent. MCs still have unreliability. Either new territory, or modeling on Article III,so you might as well be in Article III court.

Holder: Thank you for support in favor of career people.  To extent that anyone has any question about determination of people in DOJ. These people are among best of best. No question KSM will try to exploit same way he did MCs. Could be in other places making a lot more money, do it quite well. MCs much better than they were. A legitimate place in which we can try some of these defendants. No question that in terms of experience Article III have experience.

Whitehouse: 3 Qs for record. Drug enforcement, e-prescribing. Timing on that determination? People in bankruptcy, harshly treated under law, new trustee? When is OPR going to put out its report in OLC?

Holder: The report is completed. Being reviewed now, last stages,  a career prosecutor has to review report. At end of month report should be issued. Longer than anticipated bc of the amount of time we gave to lawyers representing subjects of report. Had to react those those responses. Report is complete being reviewed by last person.

Specter: I love Judy Miller!!

Specter: We are working hard to craft health care bill. Medicare and Medicaid fraud enormously consequential. So many cases result in fines. Adds to cost of doing business. Jail sentences are deterrent. Would you submit to committee an act to plan to see to it that there are jail sentences as matter of active govt policy.

Specter: Two-pronged approach to violent crime.

Specter: Distinction between trying people in Article III and MCs. Preliminarily support Whitehouse comment. As I take a look at protocol. As you look at interest, very similar, Yemen as opposed to NYC not all taht important. Article III courts quite a testimony to our criminal justice system. What standards to try terrorist in one place rather than other.

Holder: Evidentiary questions, location can be a problem.

Specter: less evidence than necessary.

Holder: Admissibility. If there are probs in one forum than another.

Specter: Can you give me an example.

Holder; The kind of interrogation might lead you to want to use  one forum as opposed to another. Might be questions of techniques, one forum might be more hospitable than another. No one should read into that. We will not use evidence derived from torture. Possibility that some techniques better received in one forum.

Leahy AG Holder’s fourth appearance. Republicans more rounds. American public, having been told that terrorists will gain access to classified material. Some of those same protections adopted into MCs. Concerns I have that MCs have repeatedly been overturned by SCOTUS. Federal courts have 200 years of precedent.

Kyl: Media shield discussion. Indicated address at more length. Did you ask Gates about shield law?

Holder: Conversation, but not lengthy one.

Kyl: Gates opposed

Holder: Previous bill.

Kyl: Propose we talk to people who expressed opinion. Did you talk to Mueller?

Holder: Different opinion wrt prior leg.

Kyl: Expressed as recently as September opinion still the same. Fitz recommended that law would include other provision, only if govt prevailed would info be turned over. Would you be open to provision like that. That clearly is one that both you and I and Fitz think is reasonable.

Holder: Bill as it exists is compromise

Kyl: Compromise between journalists, you and Democrats.

Holder: Graham cosponsor.

Kyl: none of us opposed.

Holder: Views letter: satisfactory to use in law enforcement.

Kyl: Did not comment on new absolute privilege. On privilege extending to protect those who violate federal law by leaking info. That act of leaking would be subject to privilege. Letter did not express itself.

Holder: I didn’t see absolute privilege to leak.

Holder: I didn’t mean to be flip about turning over names of previous conflicts. I don’t know if ethical concerns wrt atty client privilege. I didn’t mean to say I was not taking seriously.

Kyl: I suspect you and Grassley will have more conversations.

Cornyn: Fup on question that Specter asked about evidence in deciding which forum. Is it your position that it’ll be easier to get evidence of guilt in Article III court than it would be in MC.

Holder; I’m not sure I view it that way as opposed to what evidence would be used, as opposed to how Military prosecutors would prosecute case.

Cornyn: you wouldn’t try case where it’d be harder to get conviction.

Cornyn: Marshall’s report on all venues. Judge could transfer. What other venues?

Holder: Two districts: SDNY and EDVA.

Cornyn: Those are the only two.  When detainees come to US, immigration status?

Holder: Not immigration expert. Confident that given they would be here under supervision of being charged in federal court, we would be able to detain them, as we would be able to anyone charged with such serious.

Cornyn: Any claim of asylum bc of CAT?

Cornyn: Not immigration expert. One can be paroled solely for this purpose. Can’t imagine situation in which paroled into US.

Cornyn: Your position will not be conferred rights they did not have.

Holder: My expertise more on DOJ side, we can detain them and prevent them from walking streets of US.

Cornyn: Will you look into it, whether if detainee claims immigration status by virtue of presence, will allow them to get administration proceedings.

Cornyn: If detainees is acquitted. What basis you could detain?

Holder: Initial determination for detention of, would last beyond mistrial. Trial, hung jury, I suppose defense could move to have bail changed. It’s hard to imagine a judge would change status between time of hung jury and next trial.

Cornyn: You cannot indefinitely detain someone. Are you concerned that judge may say you’ve made an election to try as criminal and you’re bound by that, and you cannot revert to law of war.

Holder: No, I’m not. Under congressional provisions, and laws of war, we have ability–cannot indefinitely detain–but can detain for lawful reasons. I think very unlikely.

Cornyn: I hope you’re right.

Klobuchar: Would never want to muzzle Graham.

Graham: I wish more people felt that way. Preventative detention. America’s not a better place for letting them go.

Holder: Agree in general. Pursuant to laws of war. Dialing into due process. I think we should involve Congress in crafting law of war detention appropriately.

Graham: These are not easy decisions. Preventative detention only known in military law. Any theory in civlian law.Speedy trial rights.

Holder: Can detain someone that there’s going to be trial.

Graham: under military law can detain if in fact part of military force. My problem with what we’re doing. In Afghanistan if we capture an AQ member. Under your rationale, decision of criminal or MC, would not be known at point of capture.

Holder: these determinations have been made now, and have been made.

Graham: No one ever envisioned that terrorist captured on battlefield would end up in civilian court. Look forward on what we can do on preventative detention.

Sessions: I would just say Mr AG. If a police officer stops someone and gun in holster. I can’t imagine someone captured on battlefield, not being considered custody. Eventually he conceded. Intelligence way to go foward.

Holder: we have a great deal of flexibility. Do not think MCs illegitimate forum. Presumption of Article III.

Sessions: If presumption is cases tried in civilian courts, don’t know why soldier isn’t instructed to give miranda. Hostility by president toward MCs. For example soon after taking office suspended MCs and issued order suspending MCs.

Holder: That doesn’t indicate hostility toward MCs rather than desire to perfect them.

Sessions. SCOTUS raised some concerns. Congress did some things that make it clear to me that for these, reliable hearsay, don’t have to bring people off the battlefield. You have to have real high reason to do that in normal civilian trial. MCs go on the record in camera, protect sources and methods. I don’t think there’s any doubt about that. General Mukasey has expressed concerns. Your predecessor. NYC focus for mischief in form of murder. I don’t think that’s irresponsible.

Holder: Do believe can protect sources and methods in Article III courts. Great respect for Mukasey. I think great AG. Only thing he didnt’ have at Dept was gift of time. But I disagree with him about NY. NY is a target for AQ. I’m not at all certain that bringing of these trials makes it greater risk. One of the things I read was WSJ article Mukasey wrote, and asking people to respond to things he wrote.

Klobuchar: Asked about evidence, miranda. Could you go through notion that that’s one of considerations.

Holder: One of things we look at is the admissibility issue. Where can we get admitted evidence needed to be most successful. People in field have been making determinations for some time. Thousands who have come into custody. Only small number have been given mirandas.

Klobuchar: Evidence you couldn’t share with us. Could you expand on that.

Holder: There is really, from my perspective, very compelling evidence that will not be revealed until trial setting or pre-trial setting. At some point, AUSA will reveal evidence that I’m talking about, compelling, not tainted, will prove to be decisive in this case.

Klobuchar: Unified in wanting to give tools to give your work. Morale in DOJ.

Holder; Make people believe in mission, some of things identified in IG reports, that’s not the way this department will be run. I served as line atty in DOJ under Republican and Democratic Ag, that’s what I tried to reassure them. Only expected to do job, No litmus test. Confirmation of remaining AAGs.

Dawn Johnsen!!!

Klobuchar: Done before thanksgiving?

Holder: Tomorrow;

Klobuchar: Six pending before this committee.

Sessions: 9/11 victims. When word of letter got out 3000 firefighters joined us to add their names.

Holder: A lot of people opposed. All I can do is look at the evidence, look at the law, and make best decision possible and I hope people understand that.

Klobuchar: Thank for respect from those in gallery, I know you don’t all agree with all decisions here, but thank you for the respect. Holder, we all hope you put best people on case, that they get penalties.

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AG Holder Oversight Hearing

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You can follow along on the Committee stream or CSPAN3.

Leahy: Using full range of authorities to fight extremists [must be an attack against Crazy Pete]. After nearly 8 years of delay, may finally be moving forward to bring to justice the perpetrators. Great faith in prosecutors, judges, juries, and American people. They committed murder and we will prosecute them. America’s response is not to cower in fear.[I wonder if he’s thinking of GoFuckYerSelf Cheney?] Those responsible for attack on USS Cole, MC, Nidal Hasan, military courtmartial. Written to John Brennan, asked him to provide internal investigation, both interim classified, Both Sessions and I should be informed. Have spoken with Mueller. Me and Feinstein were briefed on status of investigation. Try not to do in reckless fashion so as not to interfere with military prosecution.

[Note, that that clarifies who was in that briefing: Gang of Eight, plus the Judiciary Chairs. Presumably Crazy Pete was there and Holy Joe was not.]

Leahy: Financial Fraud Task Force.

Sessions: We don’t agree on KSM and 9/11. [Presumably in NYC, but he didn’t say it.] You asked for this job. David Beamer, FL, and Alice Hoagland from CA. Lost sons on Flight 93. Lisa Dolan lost her husband at the Pentagon. Debra Burlingame lost brother, pilot. Tim Brown from NYFD. A privilege to have each of you with us today. Blah blah blah blah blah. Policies taking place under new Admin, I fear that is not the case. Admin continuing to delay to provide clear leadership to men in Afghanistan, investigation of CIA officers, cut a deal on media shield legislation to protect indivs to leak classified info to mass media, concede to weakening of PATRIOT, decline to provide basic information about Ft. Hood, and now announced they will bring KSM back to Manhattan. These policies signal to our people and to inter-nat-shun-all community. Return to pre-9/11 mentality. Al Qaeda doesn’t agree. KSM in NY, departs from long-standing policy that these should be treated under the rules for law. He’s alleged not to be a common criminal. Correct way to try him is by military tribunal. MC and civilian courts have different functions. US Court system not designed to try unlawful enemy combatants. These are people we are at war with. We are dropping bombs on them every day, attacking they lairs. [anyone wonder whether Jefferson Beauregard Sessions III has a woody?] They are first a prisoner of war, once they’re captured. [oops–that’s got to be a mistake, all of a sudden admitting that KSM is POW] Ex Part-ay Qweer-in. Our enemies and friends must ask themselves whether they’re still serious about this effort.

Leahy: Delighted to hear someone from AL quote approvingly Ulysses S Grant and Abraham Lincoln. The world has come full circle.

Sessions: Well, and they were winners, too.

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

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

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

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

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

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

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

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

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

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

Update: From DOJ spokesperson Dean Boyd:

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

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

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

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

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

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

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Nidal Hasan’s Dots

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Picture 141Mark Ambinder and I had a productive disagreement on Twitter today about what the appropriate focus of the investigation into Nidal Hasan should be. My overall point is that, at least given what we know now, our focus ought not to be on the treatment of the intercepts of Hasan’s attempts to contact radical cleric Anwar al-Awlaki so much as they should be on other signals Hasan gave of real struggles over his role as a Muslim in an army fighting two Islamic countries. It’s only within that context that the intercepts are at all meaningful. And unless we want to criminalize all discussion with extremist clerics (including people like Fred Phelps and Jerry Boykin, not to mention Jeremiah Wright), and unless we want to sanction the criminalization of any communication with people with alleged ties to Islamic extremists, then we should hesitate before we conclude that Hasan’s emails to Awlaki (at least as they’ve been reported) should have been the primary trigger for an investigation of Hasan.

Here are, best as I can piece together, the warning signs that the military and the FBI got on Hasan leading up to the killings.

Complaints about anti-Muslim Harassment (2004 to present)

As early as 2004, Hasan complained to relatives about anti-Muslim harassment and consulted a lawyer about getting out of the military. Harassment against him for being Muslim continued after he moved to Ft. Hood earlier this year.

In mid-August, another tenant, a soldier who had served in Iraq, was angered by a bumper sticker on Major Hasan’s car proclaiming “Allah is Love” and ran his key the length of Major Hasan’s car. Ms. Thompson learned of it and told Major Hasan about it that night, and though he called the police, Major Hasan did not appear to be angered by it.

He complained to others at his mosque in Killeen (so in other words, in the last several months) about the treatment of Muslims in the Army.

He was described as gentle and kindly by many neighbors, quick with a smile or a hello, yet he complained bitterly to people at his mosque about the oppression of Muslims in the Army.

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Mueller ALREADY Reviewing Shortcomings of Hasan Investigation

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Here’s an interesting detail. Robert Mueller is already launching a review into shortcomings of earlier investigations into Nidal Hasan.

FBI Director Robert S. Mueller III has ordered a review of what might have been done differently in the case.

Mind you, it’s not that I think the FBI shouldn’t review what they did to make sure they didn’t ignore any warning signs that Hasan might represent a danger to Americans. I think such a review is necessary.

It’s just that–a week ago–I wrote a post reporting Mueller’s continued refusal to review the Anthrax investigation. As a reminder, here’s the excuse he gave for not welcoming an outside investigation.

There is also ongoing criminal and civil litigation concerning the Amerithrax investigation and information derived therefrom, and an independent review of the FBI’s “detective work” at this time could adversely affect those proceedings.

So, two unexpected attacks, both raising questions about the FBI’s diligence. Both with multiple murders and further injuries. Both exposing vulnerabilities in our military infrastructure. Both with ongoing investigations (purportedly, in the case of the Anthrax case).

But Mueller’s only willing to review the FBI’s detective work in one case.

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Is Crazy Pete Hoekstra Lying and Demagoging Again?

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I know, I know, is Crazy Pete sending stern emails to intelligence agencies? Are his lips moving?

First, Crazy Pete rushed out to ABC to complain that the CIA and other intelligence agencies weren’t briefing the Intelligence Committees.

Rep. Peter Hoekstra (R-MI), the ranking Republican on the House Intelligence Committee, said that he requested the CIA and other intelligence agencies brief the committee on what was known, if anything, about Hasan by the U.S. intelligence community, only to be refused.

In response, Hoekstra issued a document preservation request to four intelligence agencies. The letter, dated November 7th, was sent to directors Dennis Blair (DNI), Robert Mueller (FBI), Lt. Gen Keith Alexander (NSA) and Leon Panetta (CIA).

Hoekstra said he is “absolutely furious” that the house intel committee has been refused an intelligence briefing by the DNI or CIA on Hasan’s attempt to reach out to al Qaeda, as first reported by ABC News.

“This is a law enforcement investigation, in which other agencies–not the CIA–have the lead,” CIA spokesman Paul Gimigliano said in a response to ABC News. ” Any suggestion that the CIA refused to brief Congress is incorrect.”

Then, Crazy Pete backed off that slightly–complaining that information he knew to be leaked to the press hadn’t been briefed to the full intelligence committees.

Hoekstra’s beef is not that the Obama Administration, including the CIA, haven’t released any information. Rather, he’s upset that only the Gang of Eight, not the full intelligence committees, have been briefed — and that the information released has been “limited.”

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Mukasey’s Hunting for a “Lone Wolf,” Too

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Earlier, I suggested that one reason Joe Lieberman may be anxious to have a hearing on the Fort Hood attack is to serve up Nidal Hasan as a “Lone Wolf” that would require further erosion of the Fourth Amendment.

Well, Lieberman’s not the only one rushing to label Hasan as a “Lone Wolf.” So is Michael Mukasey–at least, he’s describing Hasan as a member of a “leaderless jihad.” (h/t Main Justice)

Michael Mukasey, the U.S. attorney general from 2007 to 2009, criticized an FBI spokesman and a New York Times article that said the gunman, Army Maj. Nidal Malik Hasan, is not connected to terrorist groups, saying that Osama Bin Laden has sought to create a “leaderless jihad” that promotes solo attacks.

“In that respect, there certainly are very close links to terrorism,” he said during the event’s main address.

“In that respect, this is, in fact, the worst terrorist act carried out on U.S. soil since Sept. 11, 2001.

“And to tell us to believe that someone has to have a membership card in al-Qaida or any other organization in order for them to act as a terrorist, and in order for us to call what he does an act of terrorism, is to tell us to refuse to look facts in the face, and to refuse to believe what we see and hear with our own eyes and ears.”

And, as a side note, can I just say what a tribute it is to our criminal justice system that the former Attorney General is willing to get up and make these broad declarations without, presumably, any first hand evidence himself?

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Lieberman’s Hunt for a Lone Wolf?

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Jim White has two important diaries on Joe Lieberman’s promise to hold hearings on the attack on Fort Hood. In the first, Jim notes that such a hearing will whip up anti-Muslim hysteria. In the second, Jim raises concerns about Nidal Hasan’s interrogation.

I think both of Jim’s diaries raise important concerns. But I’d like to add a third to the list: that Lieberman will use this case to advocate for expanded authorities under the PATRIOT Act.

Check out how Lieberman describes Hasan:

WALLACE: A lot of people are wondering — you talk about all the statements he made. There were a lot of warning signs out there. I know hindsight is 20/20, but were there enough signs that — enough red flags that authorities should have stepped in?

LIEBERMAN: Well, that’s a very important question. And I would say, Chris, that while the Army and the FBI are conducting the criminal investigation about exactly what happened and what Dr. Hasan should be charged with, the U.S. Army — the Department of Defense has a real obligation to convene an independent investigation to go back and look at whether warning signs were missed, both of his — the stress he was under, but also the statements that he was making which really could lead people to believe that Dr. Hasan had become an Islamist extremist.

A couple of years ago, after a two-year investigation, my committee put out a report that said the new face of terrorism in America would not just be the attacks as 9/11, organized abroad and sending people in here. It would be people within this country, home- grown terrorists, self-radicalized, often over the Internet, going to jihadist Web sites.

And there’s concern from what we know now about Hasan that, in fact, that’s exactly what he was, a self-radicalized home-grown terrorist. [my emphasis]

Even while Lieberman feigns an attempt not to jump to conclusions, he seems interested in holding a hearing precisely because he sees Hasan as a self-radicalized terrorist.

Cato’s Julian Sanchez had a piece a few weeks ago talking about the problems with the Lone Wolf provision.

The extraordinary tools available to investigators under the Foreign Intelligence Surveillance Act (FISA), passed over 30 years ago in response to revelations of endemic executive abuse of spying powers, were originally designed to cover only “agents of foreign powers.” The PATRIOT Act’s “lone wolf” provision severed that necessary link for the first time, authorizing FISA spying within the United States on any “non-U.S. person” who “engages in international terrorism or activities in preparation therefor,” and allowing the statute’s definition of an “agent of a foreign power” to apply to suspects who, well, aren’t. Justice Department officials say they’ve never used that power, but they’d like to keep it the arsenal just in case.

[snip]

Courts have generally been extraordinarily deferential to the executive in the realm of foreign intelligence, and have suggested that the Fourth Amendment’s protections against warrantless searches apply only weakly, if at all, in this context. But when it comes to domestic national security investigations, a unanimous Supreme Court has ruled that the usual restrictions remain largely intact. The court clearly saw the involvement of a “foreign power” as providing the distinction between the world of the criminal law’s Fourth Amendment protections and the hazy arena where the executive enjoys far greater latitude. The “lone wolf” provision recklessly blurs that line, defying the common sense meaning of an “agent of a foreign power,” and giving investigations that belong in the first world a dubious statutory foothold in the second.

But here’s one of the biggest concerns: as Julian’s piece makes clear, the Lone Wolf provision would not, currently, apply to Hasan. It applies only to non-US persons, not to US citizens like Hasan.

Which is where I worry that Lieberman is going with this. The House Judiciary bill (but not the Senate one) allows the Lone Wolf provision to sunset because of the legal concerns that Julian raises in his piece. But if a hawk like Lieberman showcases what he has pre-determined to be a self-radicalizing terrorist, it might provide just the thing people like Lieberman need to further chip away at civil liberties of US persons.

I’m not saying this guy shouldn’t have been investigated–he clearly should have. But it’s not clear that we need to expose all citizens to snooping expeditions to keep ourselves safe.

Update, from ABC: US intelligence was aware months ago that Hasan had tried to contact al Qaeda.

Update: Note Isikoff’s source explicitly called this a Lone Wolf attack.

To some in law enforcement  – including the one who spoke to Newsweek — the purchase of the high-powered gun, the Internet writing and Hasan’s alleged shouting of “Allah U Akbar” (Arabic for “God is Great”) during the attack – suggest that the Fort Hood shooting should be viewed more as a terrorist act by a “lone wolf” Muslim extremist than as the work of a troubled physician who “snapped” under pressure.

Isikoff is notoriously well sourced in FBI. So I guess that’s where this is going.

Update: Spencer asks a question a few below have asked: why didn’t our crack data mining program alert the right people to Hasan?

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What about Those Other FBI Fishing Expeditions?

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Charlie Savage’s story on the FBI’s Domestic Investigations and Operations Guide is a superb follow-up on my questions from yesterday, in which I asked what had happened to the people seemingly targeted through the Najibullah Zazi investigation.

Savage describes how the FBI’s recently revised standards (dated December 16, 2008!!) for investigation have been expanded to allow FBI agents to conduct what are effectively fishing expeditions.

The F.B.I.’s interpretation of those rules was recently made public when it released, in response to a Freedom of Information lawsuit, its “Domestic Investigations and Operations Guide.” The disclosure of the manual has opened the widest window yet onto how agents have been given greater power in the post-Sept. 11 era.

In seeking the revised rules, the bureau said it needed greater flexibility to hunt for would-be terrorists inside the United States. But the manual’s details have alarmed privacy advocates.

One section lays out a low threshold to start investigating a person or group as a potential security threat. Another allows agents to use ethnicity or religion as a factor — as long as it is not the only one — when selecting subjects for scrutiny.

“It raises fundamental questions about whether a domestic intelligence agency can protect civil liberties if they feel they have a right to collect broad personal information about people they don’t even suspect of wrongdoing,” said Mike German, a former F.B.I. agent who now works for the American Civil Liberties Union.

Taking these guidelines, along with the knowledge that the FBI is using Section 215 of the PATRIOT Act to profile people based on their purchase of certain hair care products, and you’ve got investigations into people who have nothing to do with terrorism.

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What Happened to Zazi’s Beauty Product Purchasing Associates?

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The House Judiciary Committee is going into a classified briefing tomorrow at which, if history is any judge, the Administration will tell them about ongoing terrorist investigations that require the gutting of the Fourth Amendment.

When the members go into that meeting, there are a number of questions I hope they ask. But one of those is, whatever happened to the three Zazi associates described as having purchased acetone and hydrogen peroxide in the government’s detention motion against Zazi?

As you’ll recall, one piece of evidence the government presented to the Court to justify holding Zazi without bail pertained to the actions of “individuals associated” with Zazi:

The evidence will further establish that individuals associated with Zazi purchased unusual quantities of hydrogen and acetone products in July, August, and September 2009 from three different beauty supply stores in and around Aurora. One person purchased a one-gallon container of a product containing 20% hydrogen peroxide, as well as an eight ounce bottle of acetone. A second person purchased an acetone product in approximately the first week of September. A third person purchased 32-ounce bottles of Ion Sensitive Scalp Developer, a product containing high levels of hydrogen peroxide, on approximately three occasions during the summer of 2009.

Now, frankly, I don’t know how these purchases add to the case to deny Zazi bail (there was already far more damning, more relevant information in the motion). Zazi’s more likely, more dangerous potential co-conspirators would seem to be people in NY, where the alleged attack was planned and where his mosque-related affiliates had a history of sympathy for extremists. And it’s not the associates’ purchase of these items, per se, that makes Zazi a threat if he’s out on bail; it would be the possession of these materials by someone who had both instructions akin to Zazi’s on turning the materials into an explosive and the intent to do so. If the associates already have those things, that’s not going to change whether or not Zazi is in custody.

The government’s implication in the detention motion was that these were potential co-conspirators of Zazi–otherwise, why would they be relevant to Zazi’s bond hearing at all???

Only, more than a month after this motion was submitted, we’ve had no reports of arrests, and the attention at least publicly seems to be focused on NY, not on CO.

So what happened to these three people who bought beauty products in Aurora, CO?

Before I pursue that question, look what the government claims about them. The government represents that these are “unusual” quantities of these products. By what measure? All of these purchases are far, far less than Zazi purchased himself (6 bottles of one product and 12 of another, in one purchase). Would a beauty salon that uses Ion Sensitive Scalp Developer [warning: clicking that link may make you a terrorist suspect] go through three bottles of the stuff in three months? Given that the stuff is sold in a gallon-sized bottle as well, how does purchasing one 32-oz. bottle a month qualify as “unusual”? Were the acetone and hydrogen peroxide purchased together? If not, is an 8-oz. bottle of acetone really “unusual”? Note the vagueness surrounding the second person–the person who purchased an acetone product in approximately the first week of September, suggesting the product was purchased after Zazi’s last known attempts to allegedly cook up TATP in August, and potentially even after Zazi left for NY. How can the government assert this is an unusual quantity if it doesn’t even, apparently, know what it was, when it was purchased, and in what volume?

And when the government says these people are “associated with Zazi,” what does it mean? Were they  members of the same mosque (with which, public reports suggest, Zazi was not that closely involved, unlike his mosque in Flushing, NY)? Were they also airport drivers at DIA, perhaps working for the same company but not socializing with Zazi at all? Were they neighbors of one of the residences at which Zazi briefly lived in the eight months he lived in CO?

So now return to the question of what happened to these people. What has happened to them in the last month or so, then? Read more →

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