The LWOT: Torture Memo Lawyers Cleared; Zazi Pleads Guilty

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Yoo and Bybee cleared -- barely

In a document dump last Friday evening, the Department of Justice released a report effectively clearing Bush administration "torture memo" lawyers John Yoo and Jay Bybee of professional misconduct.

The long-anticipated Office of Personnel Responsibility (OPR) report concludes that Yoo and Bybee did commit professional misconduct -- Yoo "when he violated his duty to exercise independent legal judgment" and Bybee by "[acting] in reckless disregard" of the law.

But David Margolis, the career Justice Department lawyer heading the investigation, wrote in a separate, overriding memo that "misconduct depends on application of a known, unambiguous obligation or standard," a legal standard that did not exist when Yoo and Bybee wrote the memos allowing for the "enhanced interrogation" of detainees. Margolis controversially cites the security atmosphere just after the 9/11 attacks as a mitigating factor, a defense other lawyers and the initial report authors have explicitly rejected.

The effect of the report: Yoo and Bybee will not be disbarred or otherwise disciplined. Bybee is currently a federal judge and Yoo a law professor at the University of California, Berkeley.

Yoo: The president could have a village "massacred"

The OPR report includes interviews with Bybee and Yoo. In one, Yoo says a president in wartime has the power to order civilians to be "massacred" -- a catch made by Newsweek's Michael Isikoff.

Isikoff also flags another good detail in the OPR report. Former Vice President Dick Cheney has called for the release of a still-classified CIA memo he says proves that information procured in "enhanced interrogations" stopped terrorist plots. The OPR report says that the memo Cheney wants released contains "plainly inaccurate information" and that enhanced interrogations happened after the plots Cheney cites were disrupted. 

Rep. Reyes wants torture illegal, violators punished

The House Intelligence Committee Chairman Rep. Sylvestre Reyes inserted an 11-page manager's amendment into the 2010 Intelligence Authorization Act yesterday, forcing House Democratic leaders to pull the bill temporarily. The amendment explicitly prohibits the use of cruel, degrading, or inhumane treatment during interrogations -- including waterboarding, the use of dogs, forced nudity, stress positions, sleep deprivation, the withholding of necessary food and medical care, and mock executions.

More controversially, it requires the criminal punishment of "any officer or employee of the intelligence community" in violation of the proposed law. It says that if a person interrogating a prisoner commits an "act of cruel, inhuman, or degrading treatment," he or she should be imprisoned for 15 years to life.

Such brutality during interrogation was already determined to be illegal by the 2005 Detainee Treatment Act. But who could be prosecuted for what has been a source of legal dispute. The White House has said it will veto the bill if it has the amendment.

Holder and Gates pen letter in support of civilian trials for terrorists

Attorney General Eric Holder and Secretary of Defense Robert Gates have written a letter to House leaders, warning that a proposed bill cutting the funding civilian trials for terrorists might be unconstitutional. They argue that the right to choose the trial venue (in this case, military or civilian court) has traditionally been an executive branch function. The legislation would set a "dangerous precedent," they say.

Zazi pleads guilty

On Feb. 22, Afghan native Najibullah Zazi pled guilty to conspiring to use weapons of mass destruction, conspiring to commit murder in a foreign country, and providing material support to a terrorist organization. Arrested in September, he now faces life in prison. Zazi and his associates -- two of whom were charged on Feb. 25 -- had allegedly planned to bomb targets in New York City.

The plea deal marks a victory for Attorney General Holder, who said that "the criminal justice system has proved to be an invaluable weapon for disrupting plots and incapacitating terrorists, one that works in concert with the intelligence community and our military."

Zazi is reportedly cooperating with authorities,  providing information on al Qaeda and his training in Pakistan.

Congress extends Patriot Act provisions

Both the Senate and House have voted to extend three controversial, expiring provisions of the Patriot Act. The provisions allow for "roving wiretaps" of terrorism suspects; the collection of a broad range of evidence, including sensitive personal information; and the surveillance of "lone wolf" suspects.

Supreme Court weighing First Amendment v. terrorism case

This week, the U.S. Supreme Court is considering whether or not free speech protects the right to give advice to a terrorist group, in Holder vs. the Humanitarian Law Project (HLP).

The case concerns whether Ralph Fertig, a University of Southern California professor and the head of the HLP, broke any laws by advising the Kurdistan Workers Party. Current law is vague, and bars giving any "material support" to registered terrorist groups. The case concerns whether "material support" includes advice.

U.S. Solicitor General Elena Kagan, arguing on behalf of the government, noted that it is legal to join a terrorist group, but not to file a legal brief on its behalf.

Trials and tribulations

  • Four Guantánamo detainees were released on Feb. 24, three to Albania and one to Spain. 188 detainees remain at the base.
  • On Feb. 25, a federal judge ruled that prosecutors must produce classified memos explaining why accused terrorist and former Gitmo detainee Ahmed Khalfan Ghailani was held without trial for five years.
  • A former board member of the Muslim advocacy group Council on American-Islamic Relations was deported to his native Jordan on Feb. 19. The organization helped alert U.S. authorities to the suspicious departure of five northern Virginia Muslims for Pakistan in December. But it has been accused of having links to Hamas.
  • An Indonesian court charged two men with helping to finance last summer's twin bombings in Jakarta. Both men claim to be innocent -- but supporters of the younger defendant came to court wearing leather jackets emblazoned with the word "mujahedeen," or "holy warriors."
  • U.S. authorities arrested three Miami businessmen for smuggling not guns or drugs but video games to a Paraguayan shopping mall with suspected links to Hezbollah.

Melissa Golden/Getty Images


The LWOT: Who’s Interrogating Mullah Baradar?; Scoring Biden vs. Cheney

Foreign Policy and the New America Foundation bring you a new weekly brief on the legal war on terror. You can read it on or get it delivered directly to your inbox -- just sign up here.

Taliban No. 2 arrested

In late January, Pakistan's Inter-Services Intelligence (ISI), supported by the U.S. CIA, arrested (perhaps by accident) Mullah Abdul Ghani Baradar, the operational commander of the Taliban. This is not an LWOT story yet, per se. But it will be. Look for details about which force (Pakistani, Afghan, or U.S.) is holding and interrogating him and whether he might be tried for crimes to come in the next few weeks.

Hoover Institution fellow Kori Schake, at Foreign Policy's Shadow Government blog, for one, asks: "Is the administration permitting the Pakistani interrogators to employ harsh methods the administration has put off limits to American intelligence professionals? They are unlikely to feel bound by our definitions of harsh interrogation."

Rumors abound that Baradar's successor might be one Abdul Qayum Zakir, who spent time at Guantánamo Bay before being inexplicably released to Afghan custody in 2007, despite apparently failing to renounce his jihadist views.

Biden and Cheney spar over interrogation and detention policy -- again

In a special Valentine's Day edition of the battle of the Sunday talk shows, former U.S. Vice President Dick Cheney and current veep Joe Biden continued to fight over how to best handle terrorism suspects.

Cheney said that as early as 2002 he disagreed with the Bush administration's decisions to try shoe bomber Richard Reid as a civilian, release prisoners from Guantánamo Bay, and discontinue the CIA's use of enhanced interrogation techniques. Biden said Cheney is "misinformed or ... misinforming." But he left open the possibility that alleged 9/11 planner Khalid Sheikh Mohammed (KSM) and four others could face a military tribunal rather than a civilian trial.

A quick update of the score card suggests Biden won this round, as ABC's Jonathan Karl caught Cheney out.

The gallery chimes in ...

Sen. Lindsey Graham (R-S.C.) also took to the airwaves to protest against trying detainees in civilian courts. He went so far as to define all U.S. territory as the "battlefield" in the war on terror:

As we all know, this was a failed attempt to blow up an airliner over Detroit by a trained al Qaeda operative. After being captured and fresh off the battlefield, he was read his Miranda rights within one hour of questioning and asked for a lawyer. Days later and only after his parents encouraged him to cooperate did he begin talking again. Can we really rely on the parents of future terrorists to work with the FBI?

... as does the White House

The New York Times published a long profile of U.S. Attorney General Eric Holder, as well as excerpts from the interviews that went into the story. Holder praises President Barack Obama's support for a civilian trial for KSM:

[Obama understands the example we would set] trying this case in the criminal justice system that we say is the best in the world.... [That this] country sucked it up, did it, and did it successfully, and did it in a way that is consistent with who we say we are is a strong, strong message, both to those who want to work with us and those who seek to do us harm.

Obama orders review of Miranda rules

In an apparent response to criticism over the government's handling of failed airplane bomber Umar Farouk Abdulmutallab, Obama has ordered a review of how suspected terrorists in the United States are arrested and held. One plan under review would require the FBI and Justice Department to notify intelligence agencies before Mirandizing a suspected terrorist. Walter Pincus of the Washington Post noted the divide between law enforcement officials and important members of Congress over this issue.

No Canadian evidence for Gitmo detainee

The Canadian government asked the United States to use intelligence gathered by Canada in its planned July military commission trial against Gitmo detainee Omar Khadr. The Canadian evidence reportedly comes from interviews of Khadr conducted by Canadian agents at Gitmo in 2003 and 2004. Canada's Supreme Court condemned the interviews last week. In a motion filed Feb. 18, Khadr's lawyers criticized Canada's refusal to demand their client's return to Canada.

Canada's Supreme Court also refused to hear arguments from another Gitmo detainee seeking access to Canadian intelligence files.

Trials and tribulations

  • A U.S. District Court judge dismissed a lawsuit filed against the U.S. government by the families of two men who allegedly committed suicide while in custody at Guantánamo in 2006.
  • Spain has offered to take in three Guantánamo detainees, in addition to the Yemeni and Palestinian detainees the country had previously agreed to accept. This makes Spain the leader among nine European countries accepting former prisoners.
  • A Pakistani judge refused to grant bail to five Americans imprisoned in Pakistan on suspicion of terrorism. Lawyers for the five had argued that the accusations and evidence against their as-yet uncharged clients was unsubstantiated.
  • An Australian court sentenced five Muslim men to up to 28 years in prison for "conspiracy to commit acts of terror."
  • It turns out that the CIA does not have Americans on its "hit list," as the Washington Post had previously reported. The military's Joint Special Operations Command reportedly still has several Americans on its list.