Foreign Policy and the New America Foundation bring you a weekly brief on the legal war on terror. You can read it on ForeignPolicy.com or get it delivered directly to your inbox -- just sign up here.
Civil liberties groups file eavesdropping lawsuit against government
A 2008 amendment to the Foreign Intelligence Surveillance Act (FISA) was challenged by a collection of journalists, civil liberties advocates, and lawyers working on terrorism and detention issues in a federal appeals court late last Friday (Wash Post). The amendment eliminated a requirement that the government name the subjects of surveillance operations, which the plaintiffs argue increases their risk of government surveillance due to the nature of their work. However, the suit faces dismissal if the appeals court upholds a lower-court ruling that the plaintiffs must prove they are subject to surveillance -- a nearly impossible task, given the classified nature of government intelligence-gathering programs.
The Washington Post's Ellen Nakashima reported this week that the National Security Agency (NSA) has temporarily and voluntarily stopped collecting certain kinds of "metadata" after the Foreign Intelligence Security Court raised concerns about the legality of such collection (Wash Post). The data includes information on the origin and destination of phone calls, emails, and Internet calls, but not their content.
Habeas writ granted to Gitmo detainee
On April 21, U.S. District Court Judge Henry H. Kennedy released the written opinion from late February that granted Guantánamo Bay detainee Uthman Abdul Rahim Mohammed Uthman's petition of habeas corpus (Legal Times). In ordering the release of Uthman, Kennedy found that the government had not sufficiently proved their claim that Uthman was a bodyguard for Osama bin Laden and a member of al Qaeda. The government's case rested largely on the testimony of two men, Sharqwi Abdu Ali Al-Hajj and Sanad Yislam Ali Al Kazimi, whose evidence the court deemed unreliable due to the fact that they were allegedly tortured while in foreign and American custody (D.C. Circuit Court, Firedoglake).
This order comes as lawyers at Gitmo prepare for opening hearings next week in the military commission trial of detainee Omar Khadr, who is charged with the killing of a U.S. Special Forces soldier in Afghanistan. The American Prospect's Adam Serwer, who recently returned from observing hearings in the case of Noor Uthman Mohammed at the base, writes that while conditions and some legal protections for suspects have improved, the broad outlines of George W. Bush's detention policies remain unchanged (TAP):
The more humane conditions at Guantánamo reflect the path the Obama administration has chosen to take on national security -- embracing Bush-era policies with minor substantive changes and a dramatic change in tone. This is Bush with a smile. Unsurprisingly, many of the underlying problems remain.
And this week The Guantanamo Files author Andy Worthington launched his must-read collection of information and analysis on the resolved and still-pending Gitmo habeas cases (Andy Worthington). Worthington notes:
I remain impressed that the judges involved have ruled in the prisoners' favor in 34 of the 47 cases (that's 72 percent of the total), especially as they have exposed, in the most objective manner available, the lack of oversight in the Justice Department (first under Bush and now under Obama) regarding pursuing cases that should have been dropped, as well as persistent obstruction by the Justice Department when it comes to providing material necessary for the prisoners' defense.
Moreover, the judges' rulings have also revealed the alarming flimsiness of most of the material presented by the government as evidence. Primarily, the judges have exposed that the government has been relying, to an extraordinary extent, on confessions extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners, either in Guantánamo, the CIA's secret prisons, or proxy prisons run on behalf of the CIA in other countries.
Congress challenges Obama on Fort Hood investigation
Sen. Joseph Lieberman (I-Conn.) and Sen. Susan Collins (R-Maine), the chairman and ranking member of the Senate Homeland Security and Governmental Affairs Committee respectively, issued a subpoena for information on the government's prior knowledge regarding Nidal Malik Hasan, the gunman in the November 2009 shootings at Fort Hood (Wash Post). Accusing the Obama administration of obstructing the committee's investigation into the attack, Lieberman and Collins have given the White House and Pentagon until April 26 to provide information on previous Army inquiries into Hasan's potential radicalization and what the government knew about his communications with radical American cleric Anwar al-Awlaki. The White House is unlikely to comply with the request, however, out of concern that information given to Congress would be leaked and thus compromise the Pentagon's investigation and eventual court-martial of Hasan (Miami Herald).
Trials and tribulations
- This Monday marked the 15-year anniversary of the Oklahoma City bombing. MSNBC ran a TV special featuring taped conversations between bomber Timothy McVeigh and his lawyer (NYT). Meanwhile, former President Bill Clinton commemorated the attack in part by warning against the persistent danger of right-wing anti-government terrorism (CBS, NYT).
- The Obama administration April 22 attempted to halt further hearings for five Uighurs who refused to go to Palau, where they were offered resettlement after their release from Gitmo (AP). The five instead demanded to be released into the United States or a country of their choosing.
- Pakistan's Inter-Services Intelligence (ISI), the country's powerful intelligence agency, has reportedly given U.S. interrogators increased access to Taliban leader Mullah Abdul Ghani Baradar, arrested in Karachi in January (BBC).
- Alarmed by the sharp increase of Austrians reportedly training in al Qaeda-linked camps, the Austrian government this week proposed an amendment to anti-terror laws that would punish "preachers of hate" and Austrians who pass through terrorist training camps abroad (AFP).
- A New York-area businessman was sentenced to 10 years in prison on April 20 for attempting to transfer over $150,000 to terrorist training camps in Afghanistan (AP).
- Russia's Constitutional Court on April 20 upheld a law that prevents terrorism suspects from receiving jury trials (UPI). The law was reportedly passed by the Kremlin to reduce the number of acquittals of terrorism suspects.
- A week after British Justice Secretary Jack Straw refused parliamentary proposals to outlaw renditions, several anti-torture groups wrote a letter calling on the British government to explain its position on rendition and torture and to hold an inquiry into Britain's treatment of terrorism suspects after 9/11 (The LWOT, The Guardian).
PAUL J. RICHARDS/AFP/Getty Images