Cheney’s Sabotage of Counter-Terrorism

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Just a day after the Brits finally prosecuted some (but not all) of the terrorists who were plotting to blow up planes with liquid explosive, a prosecutor in the case explains how the Americans almost blew the case.

Fearful for the safety of American lives, the US authorities had been getting edgy, seeking reassurance that this was not going to slip through our hands. We moved from having congenial conversations to eyeball-to-eyeball confrontations.

We thought we had managed to persuade them to hold back so we could develop new opportunities and get more evidence to present to the courts. But I was never convinced that they were content with that position. In the end, I strongly suspect that they lost their nerve and had a hand in triggering the arrest in Pakistan.

The arrest hampered our evidence-gathering and placed us in Britain under intolerable pressure.

Now, I’ve been following these accusations since August 2006, shortly after the arrests (which was, it should be said, shortly after Lamont’s primary victory over Joe Lieberman demonstrated how the Iraq War was hurting Bush and the Republicans). But the best explanation of what happened came a year ago from Ron Suskind: 

NPR: I want to talk just a little about this fascinating episode you describe in the summer of 2006, when President Bush is very anxious about some intelligence briefings that he is getting from the British. What are they telling him?

SUSKIND: In late July of 2006, the British are moving forward on a mission they’ve been–an investigation they’ve been at for a year at that point, where they’ve got a group of "plotters," so-called, in the London area that they’ve been tracking…Bush gets this briefing at the end of July of 2006, and he’s very agitated. When Blair comes at the end of the month, they talk about it and he says, "Look, I want this thing, this trap snapped shut immediately." Blair’s like, "Well, look, be patient here. What we do in Britain"–Blair describes, and this is something well known to Bush–"is we try to be more patient so they move a bit forward. These guys are not going to breathe without us knowing it. Read more →

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al-Haramain Reply Filed; Constitution & Rule Of Law In Judge Vaughn Walker’s Hands

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images5thumbnail1.thumbnail.jpegIn a spring and summer of noteworthy and important legal cases winding in and out of the national conscience, or at least the conscience of the enlightened readers of this blog, perhaps none have as much weight and significance as al-Haramain v. Obama, pending before Judge Vaughn Walker in the Northern District of California. Subsequent to oral argument set before the court on the morning of September 23, Judge Walker will issue a most critical opinion on Plaintiff al-Haramain’s motion for summary judgment.

We have previously discussed in depth the initial motion for summary judgment by plaintiffs and the timeline for the subsequent briefing thereto.

Today, Plaintiff al-Haramain filed their Reply, the last brief joining the issues and argument on plaintiffs’ motion for summary judgment prior to argument and decision.

At long last, the time has come for this Court to adjudicate the merits of this lawsuit and confirm, in the words of lead defendant Barack H. Obama, that “[w]arrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”

Indeed the time has come, and no less than the sanctity of the Fourth Amendment, Constitutional separation of powers, the continuation of unbridled unitary executive power and the rule of law sits in the hands of Judge Walker. And the plaintiffs’ counsel has teed up the ball quite nicely for him.

On whether the government’s surveillance program was lawful:

Sometimes a litigant’s brief is more significant for what it does not say than for what it says. That is the situation here. After three and one-half years of litigation in which the government has exploited multiple procedural devices to evade an adjudication on the merits, defendants say nothing on the ultimate question now posed for decision: Was the TSP unlawful?
…
Given the present procedural posture of this case, however, that silence has consequences. “[F]ailure of a party to address a claim in an opposition to a motion for summary judgment may constitute a waiver of that claim.” Foster v. City of Fresno, 392 F.Supp.2d 1140, 1146, n. 7 (C.D. Cal. 2005); accord, e,g., Seals v. City of Lancaster, 553 F.Supp.2d 427, 432 (E.D. Pa. 2008) (failure by party opposing summary judgment to address moving party’s claims “constitutes abandonment of those claims”). On this motion for partial summary judgment of liability – where plaintiffs have squarely presented and argued their claims on the merits as to why the TSP was unlawful – defendants’ Read more →

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Thailand Refuses to Extradite Viktor Bout

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While this decision will be immediately appealed, in what was a proxy power fight, Thailand has refused to extradite Viktor Bout to the United States to be tried on charges of trafficking arms to terrorists–Colombia’s FARC.

The DEA maintains that Mr Bout agreed to supply ground-to-air missiles that could have been used to target agency operatives assisting Colombia’s attempts to wipe out cocaine crops.

But on Tuesday the court found in favour of Mr Bout.

“The US charges are not applicable under Thai law,” said the judge delivering the hour-long verdict at Bangkok’s Criminal Court. “This is a political case. The Farc is fighting for a political cause and is not a criminal gang. Thailand does not recognise the Farc as a terrorist group.”

The court “does not have the authority to punish actions done by foreigners against other foreigners in another country”, the judge said.

The FT goes on to describe allegations of attempts, by both the Americans and Russians, to bribe the judges in this case. Who knows the relative truth to that claim? But the decision is interesting because the Thais have thus far refused to follow US bidding in what is undoubtedly an attempt to shut down a horrible arms trafficker (though one we have used in the past), but is also an attempt to shut down a challenge to US influence in developing nations around the world.

And yes, I do find it ironic that Thailand–the country that hosted Abu Zubaydah’s torturers–has refused to accept our representations about who is, and who is not, a terrorist.

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On PDB Day, a New Direction against Terrorism? John Brennan’s Coming Out Party?

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Eight years ago, our President was on vacation, ignoring a Presidential Daily Brief that warned, "Bin Laden Determined to Strike in US." The brush on a pig farm in Texas, you see, was far more  important.

And here we are now, six whole days in to August, and Obama’s just got one week planned on Martha’s Vineyard. How will the brush get cleared? How will the PDBs get ignored?

Obama has chosen today, PDB day, for John Brennan’s coming out party, where Brennan will present Obama’s new direction in counterterrorism. (Spencer will be liveblogging from the talk at the Windy).

There are parts of today’s speech that are welcome. This is a reiteration of Obama’s March renunciation of the War on Terror.

"This is not a ‘war on terror.’ . . . We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world." 

It’s an embrace of soft power–a real engagement with the rest of the world. (Mind you, Bush tried it, but sent Karen Hughes to do the job.)

Washington must couple the military strikes that have depleted al-Qaeda’s middle ranks with more sustained use of economic, diplomatic and cultural levers to diminish Islamist radicalization, he said, exercising "soft power" in ways that President George W. Bush came to embrace but had trouble carrying out.

 But it also seems to represent the ascendancy of John Brennan, Obama’s holdover from Bush’s War on Terror team.

"His portfolio is growing, not shrinking," said Mark Lippert, a longtime Obama foreign policy aide and now chief of staff for the National Security Council, which is run by Brennan’s boss, national security adviser James L. Jones. Brennan’s role spans terrorism, cybersecurity, swine flu and some intelligence matters. "He has the president’s trust. . . . Folks from all parts of the policy and intelligence community respect him," Lippert said. 

I’m sure John Brennan is very knowledgable and all. But he was also, apparently, intimately involved in the illegal activities of the Bush Administration, particularly Bush’s domestic surveillance program. 

So soft power is all well and good–provided we make a more competent attempt at it than Karen Hughes was able to muster. But will it move beyond the abuse of power Brennan was involved in under Bush?

Spencer has an appropriately skeptical look at this at the Windy:

… it’s on Brennan to explain how this approach is Read more →

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The US Government Owns Abu-Zubaida’s Thoughts

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I just found an interesting article by Walter Pincus tucked away in the lower half of the Washington Post website. It contains no new or breaking news, but is an interesting description of just how far the government has run amok in their over-classification and demand to control information flow to the American people and the world.

Abu Zubaida’s writings are being used against him but being withheld from the public. For example, within days of the Sept. 11, 2001, attacks, according to a summary of his diary entry read aloud at his military tribunal hearing on March 27, 2007, the Palestinian detainee wrote that he was buying and storing weapons as part of a plan that Osama bin Laden devised in expectation of U.S. military action.

At the tribunal hearing, which was designed to inform Abu Zubaida of the charges against him, a summary was read of an entry from early 2002 in which he wrote that he would wage war against the United States, using explosive attacks, attacking gas stations and fuel trucks.

In all, Abu Zubaida has nine handwritten volumes of diaries. Six of them, totaling about 1,500 pages, were written before he was captured, and three were composed after his capture. So far, the government has kept all nine volumes sealed, though they are apparently considered unclassified. Even the government’s court motion on their status has remained sealed.

Marcy discussed the initial rumblings of this back in May when Abu Zubaida’s attorneys first raised the matter. It was at that point the government admitted it could not or would not produce key volumes of Abu Zubaydah’s diaries in preparation for his Combat Status Review Tribunal hearing. As Marcy noted:

The whole filing is worth reading for the Kafkaesque situation it describes, in which AZ, whose memory is described to be completely dysfunctional, has been refused the sole record he has of the events of which he has been accused, even though at least three of those accusations come directly from his diary.

Abu-Zubaida’s attorneys, because of the hyper degree of over-classification by the government, cannot fully discuss their case with their client, cannot discuss information learned from their client with their own investigators, experts and other potential witnesses, and cannot correct lies and misinformation the government has put in the public record about their client. This is a gross and intentional invasion of the attorney-client relationship and a denial of full and effective assistance of counsel.

How exactly has the government (yes, again it is both Bush and Obama, a oneness no longer shocking) effected this information and thought seizure?

While the executive order authorizing classification requires the information to be "owned," "produced," or "controlled" by the U.S. government, Abu Zubaida’s attorneys say the Justice Department has made a novel argument, that "to detain a prisoner creates a new, parallel authority to classify any and all utterances made by that prisoner for the period he is incarcerated." "Control" means government control over the agency that originates the information, not control over Abu Zubaida "by virtue of Read more →

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Gravely Damaging Intelligence Gaps

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Just two or three more bits on this Panetta declaration and the related Vaughn Index (Part One, Part Two).

Before he insisted in his declaration, implausibly, that he wasn’t trying to hide embarrassing information that might show legal wrong-doing, Leon Panetta gave this general explanation for why he couldn’t release this information:

I want to emphasize to the Court that the operational documents currently at issue contained detailed intelligence information, to include: intelligence provided by captured terrorists; intelligence requirements that CIA prioritized at specific points in time; what the intelligence community did not know about enemies in certain time frames, i.e., intelligence gaps;

[snip]

Much information in the documents is intelligence that was being provided to the field and intelligence that was being gathered from the interrogations. This sensitive intelligence provides important insight into what the CIA knew–and did not know, i.e. intelligence gaps–at specific points in time on specific matters of intelligence interest. I have determined that the disclosure of intelligence about al Qai’da reasonably could be expected to result in exceptionally grave damage to the national security by informing our enemies of what we knew about them, and when, and in some instances, how we obtained the intelligence we possessed.

Remember, earlier this year the ACLU and CIA agreed that the Agency could exclude raw intelligence cables from this FOIA response.

In response to earlier orders, the CIA originally identified appropximately 3,000 documents potentially responsive to paragraph 3 of the Court’s April 20, 2009 Order. Those 3,000 records included "contemporaneous records," which were created at the time of the interrogations or at the time the videotapes were viewed, "intelligence records," which do not describe the interrogations but contain raw intelligence collected from the interrogations, "derivative records," which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations that, upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.

With respect to paragraph 3 of the April 20, 2009 Order, the parties jointly propose that the Government address the contemporaneous and derivative records, but not the intelligence records or the other records that ultimately proved to be unrelated to the interrogations or the videotapes. [my empahsis]

Nevertheless, even before Panetta says he can’t turn over this material because it would reveal the identities of our counterintelligence officers and the location at which we conducted these interrogations, he says he can’t turn over this material because it’ll reveal the intelligence that went into and came out of the interrogations, even though this is not the primary record of intelligence gathered in the interrogations.

Read more →

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Richard Clarke Reminds Cheney and Condi of Their Incompetence

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When I saw Condi saying, "unless you were there, in a position of responsibility, you cannot possibly imagine the dilemmas we faced in trying to protect Americans," to Stanford students, my instinct was to remind everyone that she was forced to admit, "I believe the title was ‘Bin Laden determined to attack inside the United States.’"

Richard Clarke, after listening to Cheney and Condi make similar statements for a month, has a similar instinct (and of course, he’s in a position to make the argument more strongly than I). Today, he’s got an op-ed reminding readers of how Cheney and Condi refused to take terrorism seriously until it was too late. And once they did, they overreacted.

He describes the panic with which Cheney responded on 9/11.

I remember that morning, too. Shortly after the second World Trade Center tower was hit, I burst in on Rice (then the president’s national security adviser) and Cheney in the vice president’s office and remember glimpsing horror on his face.

And then he catalogs how the excessiveness of Cheney’s and Condi’s response led to more failures (click through for his discussion of the Iraq debacle).

On detention, the Bush team leaped to the assumption that U.S. courts and prisons would not work. Before the terrorist attacks, the U.S. counterterrorism program of the 1990s had arrested al-Qaeda terrorists and others around the world and had a 100 percent conviction rate in the U.S. justice system. Yet the American system was abandoned, again as part of a pattern of immediately adopting the most extreme response available. Camps were established around the world, notably in Guantanamo Bay, where prisoners were held without being charged or tried. They became symbols of American overreach, held up as proof that al-Qaeda’s anti-American propaganda was right.

Similarly, with regard to interrogation, administration officials conducted no meaningful professional analysis of which techniques worked and which did not. The FBI, which had successfully questioned al-Qaeda terrorists, was effectively excluded from interrogations. Instead, there was the immediate and unwarranted assumption that extreme measures — such as waterboarding one detainee 183 times — would be the most effective.

Finally, on wiretapping, rather than beef up the procedures available under the Foreign Intelligence Surveillance Act (FISA), the administration again moved to the extreme, listening in on communications here at home without legal process. Read more →

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Cheney’s So-Called Recidivists

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There’s a number of impressions I get from the DOD "report" on the number of Gitmo detainees who have joined terrorists groups, including al Qaeda, since being released. First, while it appears to be what ABC billed it as–the report showing 14% of the people freed from Gitmo purportedly returning to the fight, the one that was used to scare the Senate into refuse funding for Gitmo–it looks fairly laughable. This is a DOD document, mind you, that has no originator or tracking information, and not even headers and footers. It sure doesn’t look to me like a finished report–it looks like some guys’ notes.

Then, look at the dates. The list confirms a point Lawrence O’Donnell made when he was debating Liz Cheney. If anyone is responsible for freeing these guys, it’s Dick Cheney and his buddies. The sole 2009 date I see is this one:

Abu Sufyan al-Azdi al-Shihri–repatriated to Saudi Arabia in November 2007, and Mazin Salih Musaid al-Alawi al-Awfi–repatriated to Saudi Arabia in July 2007. On 24 January, a 19-minute video was released wherein al-Shihri and al-Awfi announced their leadership within the newly established al-Qaida in Arabian Peninsula.

Call me a cynic, but any video released just days after Obama became President and two days after he signed an order to close Gitmo ought to be treated with caution.We’ve seen way too much explicit propaganda in the last eight years to take this as face value.

Also note the standards involved. The report tries to refute a criticism made of it–that among the so-called recidivists included is a guy, Mohammed Ismail, who made a critical comment about the US. In its definitions section, the report says:

For the purposes of this definition, engagement in anti-U.S. propaganda alone does not qualify as terrorist activity.

Oh, okay. In the case of Ismail, the report claims he engaged in an attack on US forces in Afghanistan and was carrying a letter "confirming his status as a Taliban member in good standing."

Which brings us to another point. A number of these so-called recidivists joined not al Qaeda, but the Taliban, upon their return. That’s different than al Qaeda membership, and I challenge it as a designation of "terrorist" membership. Anti-US, certainly (at least before we entered into talks with the Taliban), but strictly speaking not a terrorist organization.

Finally, there’s the question of how these classifications of confirmed and suspected were collected. Read more →

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Preventative Detention and Our Crimes

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I guess the news that came out of yesterday’s great chat (if I do say so myself) with Sheldon Whitehouse is his analogy on preventative detention.

To argue by analogy, one can go to court and to a civil standard of proof show that someone is a danger to themselves or others, and obtain a civil commitment restricting their freedom. If we can do this with Americans, it seems logical that we could also do it with foreign terrorists. The question is, what checks and balances should surround the initial determination of danger, and what safeguards should stay with the person through the period of confinement? I look forward to hearing more from the Obama Administration about what schedule of rule of law safeguards they intend to apply, but I think that the example of civil commitment shows that it is not categorically forbidden to restrict someone’s freedom based on a finding of danger.

I was already thinking of what it means to use the analogy from psychiatric detention, but reading Digby talk about issues has a way of bringing them into focus. 

I think that may be even scarier than Gitmo. It implies use of psychiatric hospitals for political prisoners, a la the Soviet Union. It’s a terrible analogy.

Whitehouse is a good guy and I don’t mean to pick on him, but this just won’t do, even to make a point. Involuntary committment cannot be used for criminals, who everyone knows may very well re-offend when they are released, so it certainly cannot be used for terrorist suspects who are accused of being at war with America. (Unless, of course, you think it is insane to be at war with America.) The history of involuntary commitment is hideous throughout world history and it remains controversial to this day, even when it is used for people who are truly mentally ill. To even think of it as a way to argue that such policies are analogous to the indefinite detention of terrorist suspects is really dangerous.

You see, while I know this whole preventative detention thing is being proposed for a range of detainees, having read two recent filings from Abu Zubaydah’s lawyers and TheraP’s take on those filings, I’m mostly thinking of Abu Zubaydah, whom our government has been calling one of the 9/11 plotters for years, but who did not get charged when KSM and the others got charged. I can’t help to shake the notion that this preventative detention stuff is supposed to solve what we do with Abu Zubaydah. Read more →

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Gitmo as OUR Recruitment Tool

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The NYT is out with another report of the Pentagon stat that 14% of those released after being held in Gitmo subsequently engaged in terrorism.

An unreleased Pentagon report concludes that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guantánamo Bay, Cuba, has returned to terrorism or militant activity, according to administration officials. 

[snip]

The report, a copy of which was made available to The New York Times, says the Pentagon believes that 74 prisoners released from Guantánamo have returned to terrorism or militant activity, making for a recidivism rate of nearly 14 percent.

There’s something that all of the discussion on so-called "recidivism" from Gitmo never considers.

What are the chances that some, or even most, of these "recidivist" terrorists are actually men we recruited to spy for us? That is, they may have "returned to terrorism or militant activity," but did so with our blessing, with the understanding they’d send back information on what those militant groups were doing.

We do know the US and its allies were using those captured as spies of a sort. Just last weekend, for example, newspapers in the UK reported that an "Informant A" was used by the Brits and Morrocco to try to get Binyam Mohamed to "cooperate" with his captives. 

Mohamed, 31, says that in September 2002, after his ‘extraordinary rendition’ to North Africa, an agent known only as Informant A told him the torture would stop if he gave intelligence to the British.

The offer from the agent, a UK citizen of Moroccan descent, suggests that British security forces had the power to end his treatment, Mohamed’s lawyer claims.

Mohamed already knew the agent from London.

[snip]

Clive Stafford Smith said: ‘The Moroccans told Mr Mohamed that Informant A was working with the British Government and pressed Mr Mohamed to do the same if he wanted to end his torture.

[snip]

Informant A is said to have fought alongside Osama Bin Laden in the caves of Tora Bora.

He was said to have been captured and held at a U.S. base in Afghanistan in 2002, when he agreed to turn informant.

Terek Dergoul, held at the same base, said: ‘One of the guards was saying, "We’ve got another 007".’

The language here is particularly interesting: the reference to Informant A as "another 007" and the suggestions that Mohamed should "work with the British Government." Read more →

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