The LWOT: U.S. Confirms Awlaki on CIA Hit List; Gitmo Military Trial Begins

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U.S. citizen Anwar al-Awlaki placed on CIA hit list

U.S. officials confirmed this week that U.S.-born cleric Anwar al-Awlaki has been added to a CIA and Joint Special Operations Command list of suspected terrorists to "capture or kill," and Rep. Jane Harman (D-Calif.) on Tuesday referred to Awlaki as "terrorist number one." Awlaki has been linked to Maj. Nidal Malik Hasan, who perpetrated the November 2009 Fort Hood shooting, and Umar Farouk Abdulmutallab, who attempted to bomb Northwest Airlines Flight 253 on Christmas Day, 2009.

Despite intelligence agency claims that Awlaki has moved beyond preaching in support of terrorism and "gone operational," doubts remain about Awlaki's actual links to al Qaeda in the Arabian Peninsula (AQAP) and the potential benefits of targeting him. More seriously, the authorization to kill Awlaki without judicial process or oversight, and without publicly demonstrating his links to terrorist operations, raises grave legal questions about the president's authority to kill suspected terrorists, let alone a U.S. citizen. Even National Review Online writer Kevin D. Williamson wrote, "Odious as Awlaki is, this seems to me to be setting an awful and reckless precedent."

Military commission opens, immediately faces difficulty

The first of five military commissions authorized by Attorney General Eric Holder opened at Guantánamo Bay April 7 with a pretrial motion for accused terrorist Noor Uthman Mohammed, arrested in 2002 and charged with having helped run al Qaeda's Khalden training camp in Afghanistan. Yet the commission immediately faced critiques, from military lawyers and civil liberties advocates alike, for taking place while Barack Obama's administration is still revising the procedures governing these commissions. The next military commission hearing is scheduled for April 28, when it will hear the case of Canadian Omar Khadr.

The Navy judge presiding over Mohammed's proceedings said it could take her a year to sift through and evaluate the classified evidence for the case, potentially delaying the trial's start until 2011. And despite arguments that military commissions are better-equipped to handle classified information than civilian courts, chief military commissions prosecutor Capt. John F. Murphy told reporters that there is "little practical difference" between the way civilian and military courts deal with secret material.

Judge voids habeas cases

Last week, U.S. District Court Judge Thomas Hogan dismissed the habeas corpus petitions of 105 Guantánamo detainees who have already been released, sometimes to third countries. Hogan ruled that, because the men had been released, the court did not need to decide whether their detention was illegal. However, lawyers for the former detainees argued that a ruling is still necessary to clear their clients of suspicion and, in some cases, remove them from terrorist watch lists. In this week's must-read article, the New York Times' Mike McIntire details the proliferation of these watch lists under Obama and the often murky process for adding or removing a name from them.

Meanwhile, lawyers for five Guantánamo detainees urged the D.C. Circuit Court to oppose a Justice Department brief that would inhibit the federal courts' ability to order Gitmo detainees released as a result of habeas rulings.

Subtle change in Obama's approach to the Muslim world?

Anonymous sources reported this week that Obama's forthcoming National Security Strategy will not contain words like "Islamic radicalism." The subtle rhetorical shift would mark a break from the National Security Strategy of George W. Bush, which argued: "The struggle against militant Islamic radicalism is the great ideological conflict of the early years of the 21st century."

The new approach is meant to show that U.S. engagement with Muslim countries will extend beyond counterterrorism issues. However, observers such as the Washington Times' Eli Lake continue to question whether Obama's counterterrorism policy is different in practice from that of George W. Bush.

Trials and Tribulations

  • The Qatari diplomat briefly detained April 7 after making a very bad joke to a U.S. marshal on a flight to Denver, was on an official visit to convicted terrorist Ali al-Marri, currently held at the supermax prison in Florence, Colorado.
  • Former Gitmo detainee Adel Hassan Hamad, released in 2007 without charge, sued two dozen U.S. officials April 7 for his "forced disappearance and torture." In support of the suit Col. Lawrence Wilkerson, former chief of staff to Secretary of State Colin Powell, signed a statement saying Secretary of Defense Donald Rumsfeld, Vice President Dick Cheney and President Bush covered up the presence of innocent men at Gitmo to avoid a political backlash.
  • In comments to students at Fordham University, Michael Sulick, head of the CIA's National Clandestine Service, said "I don't think we've suffered at all from an intelligence standpoint" from the Obama administration's ban on waterboarding.
  • Chicago taxi driver Raja Lahrasib Khan pleaded not guilty April 5 to attempting to send money to al Qaeda via terrorist leader Ilyas Kashmiri.
  • German Interior Minister Thomas de Maizière faced criticism this week from his own conservative party for saying Germany would consider accepting Gitmo detainees. And in meetings with Attorney General Holder April 8, Spain agreed to resettle four additional Gitmo prisoners.
  • On April 2 federal prosecutors filed terrorism charges against Jamie Paulin-Ramirez, known in the media as "Jihad Jamie," in relation to a series of arrests last month over an alleged plot to kill a Swedish cartoonist who depicted the Prophet Mohammed. Paulin-Ramirez entered a plea of not guilty on April 7.
  • Influential Spanish judge Baltasar Garzón was indicted April 7 for overstepping his authority in investigating crimes committed during the brutal dictatorship of Gen. Francisco Franco.
  • Attorney General Holder this week signed the first criminal law enforcement agreement between the United States and Algeria, covering issues from organized crime to terrorism.



The LWOT: Judge Overrules Obama On Wiretapping; Domestic Terror Plots Disrupted

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.

Federal judge rules against Obama on state secrets

U.S. Federal District Court of San Francisco Judge Vaughn R. Walker dealt a blow Tuesday to the position taken by both Barack Obama and George W. Bush's administrations by ruling that the National Security Agency (NSA) illegally wiretapped an Oregon-based Islamic charity in 2004. The ruling found that the NSA violated the Foreign Intelligence Surveillance Act by tapping the Al-Haramain organization's and two of its lawyers' phones without a warrant, invalidating a key component of the Bush administration's post-September 11 counterterrorism approach.

Both Bush and Obama sought the case's dismissal on the grounds that it would reveal "state secrets"; the Obama Justice Department has invoked this rationale in several other cases whose outcome is pending. The DoJ is is currently reviewing Judge Walker's ruling, and must navigate a complex set of choices before deciding on its course of action.

White House continues to stall on terrorist trials

Top Obama advisors continued to waffle this week on closing the Guantánamo Bay detention facility, as they debate whether to try alleged 9/11 mastermind Khalid Sheikh Mohammed and other suspected terrorists in civilian or military court. Despite the continued legal challenges to military tribunals, White House spokesman Robert Gibbs told MSNBC that KSM will be brought to justice, "in some form or another." Meanwhile, senior Obama advisor David Axelrod told CNN Sunday that he did not know when Gitmo would be closed, saying, "it's complicated." And the New York Times' Charlie Savage reports on the sharp divisions among senior administration lawyers over the president's power to detain terrorist suspects without trial.

In the meantime, polls show a 12-point drop in support for closing the prison since Obama took office. This revelation comes in a week when the Justice Department released new statistics supporting the administration's assertions that hundreds of terrorists have been successfully prosecuted in U.S. civilian courts since 9/11. And while Obama's deadline for closing Gitmo has come and gone, the Defense Department announced this week that it had designated a new commander of prison camps at the base, in time for the Military Commission trial for Sudanese man Noor Mohammed, charged with running a paramilitary camp in Afghanistan before 9/11.

The Christian Science Monitor this week has a fascinating profile of two of the nearly 500 lawyers who have worked pro bono to defend Guantánamo detainees. And under the headline "A Terrorist Lawyer, and Proud of It," Guantánamo defense attorney Nancy Hollander writes:

I am a terrorist lawyer, if that means I am willing to defend those accused of terrorism. I am currently defending two men imprisoned in Guantánamo and I defend others accused of terrorism.

Contrary to recent attacks by those who claim to be supporters of American justice, my defense of people accused of serious and sometimes horrific crimes is not an endorsement of those crimes. Rather, it is a testament to the strength of my belief in, and commitment to, the American system of justice.

Why? Because in my defense of every client, I am defending the United States Constitution and the laws and treaties to which it is bound, and I am defending the rule of law. If I am a terrorist lawyer, I also am a rule-of-law lawyer, a constitutional lawyer and a treaty lawyer.

Government offers legal arguments for drone strikes

Late last week, the State Department's legal advisor Harold Koh offered a fuller explanation for the legality of drone strikes than has been given to date, saying that the strikes comply with "all applicable law, including the laws of war." Yet the justifications offered by Koh, a noted human rights lawyer and former dean of Yale Law School, only raised more questions among many commentators, who continue to doubt the program's legality under international law. The American Civil Liberties Union will reportedly sue the government for the release of the full legal justification for these strikes.

Arrests made in two different terror plots

Raja Lahrasib Khan, a Chicago cab driver and naturalized American citizen, was arrested and charged March 26 with attempting to send money to al Qaeda by way of terrorist leader Ilyas Kashmiri. In statements made to an undercover FBI agent, the man claimed that he had known Kashmiri for 15 years and that Osama bin Laden is alive and giving orders to al Qaeda, as well as allegedly discussed a plot to blow up a Pakistani sports stadium. The government's complaint can be found here.

Nine members of a radical Christian group known as the Hutaree were arrested in Michigan and several other states this week for plotting to kill a  police officer and then launch an attack, employing guns and improvised explosive devices, on the officer's funeral.  In an interesting twist, the New York Times reports that other militia groups in the area refused aid to the group -- the head of the Michigan Militia, a convert to Islam, even gave police information on the locations of several Hutaree members.

Trials and tribulations

  • The Obama administration is set to change controversial air traveler screening protocols enacted after the failed Christmas day bombing of Northwest 253, relying on intelligence data and behavioral observations rather than the country of origin of travelers to decide who merits extra airport security attention.
  • On April 1, the Treasury Department froze the assets of two alleged Europe-based terrorist facilitators, working for al Qaeda in Iraq and the Islamic Jihad Union.
  • The trial for five Americans arrested in Pakistan in November 2009 on suspicion of terrorist activity opened March 31 in the city of Sargodha. The trial will resume again April 17.
  • India continued this week to push for direct access to Mumbai attack plotter David Coleman Headley, who is currently in the United States after pleading guilty to federal terrorism charges in mid-March. The U.S. refusal is causing increasing strain between the two allies.
  • In the wake of the dual suicide bombings in the Moscow subway that killed at least 39 people March 29, Russian President Dmitry Medvedev ordered authorities to use "more cruel" measures to hunt down terrorists, opening the possibility for more violence in the Caucasus and elsewhere in Russia.
  • Germany has reportedly re-entered negotiations with the United States to take detainees from Guantánamo, and German officials have recently traveled to the prison to meet with several inmates.
  • Time has finally run out for Jack Bauer: On March 26, Fox television announced that "24", the show that captured the fear and insecurity of many Americans after September 11 and may have influenced enhanced interrogation techniques used on detainees, has been canceled.

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