The LWOT: NSA under fire; Gitmo gears up for Khadr hearings

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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).



The LWOT, 4/9-4/16: Emails reveal new details about CIA tape destruction; Holder goes back to the Hill

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

Emails reveal new details about CIA tape destruction

CIA emails released April 16 as part of an American Civil Liberties Union Freedom of Information Act request shed fresh light on the CIA's November 2005 destruction of 92 tapes documenting the brutal waterboarding in Thailand of suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri. The emails, written by an author whose name was redacted, seem to imply that while then-CIA Director Porter Goss did not previously authorize the tapes' destruction, conducted by then-Directorate of Operations head Jose Rodriguez, he "agreed" with Rodriguez's actions. The emails also reveal that Rodriguez, who allegedly said the tapes would be "devastating" for the CIA if released, did not consult either CIA counsel John A. Rizzo or White House Councel Harriet Myers before destroying the tapes. The destruction of the tapes is the subject of a two-year old investigation by federal prosecutor John Durham, whose mandate was expanded in 2009 by U.S. Attorney General Eric Holder to include the actions of CIA contractors and interrogators at so-called "black" prison sites.

Holder goes back to the Hill

Attorney General Holder faced tough questions from Republicans and even some Democrats when he appeared before the Senate Judiciary Committee on April 14 to discuss the Obama administration's handling of suspected terrorists. Holder told the committee that no final decision had been made on whether to try 9/11 plotter Khalid Sheikh Mohammed in a civilian or military court, but rehashed the idea of prosecuting KSM and the other accused 9/11 planners in Manhattan. Holder also pushed back on congressional criticism of the Justice Department's role in terrorism investigation and prosecutions. "[T]here's been a lot of unnecessary politicization of national security issues that I don't believe has benefited this country," he stated.

In a speech April 15 to the legal issues group the Constitution Project, Holder reportedly defended using both military and civilian courts to try terrorists, while emphasizing the importance of civilian criminal courts in terrorism investigations and prosecutions. And the Los Angeles Times reports that the Obama administration is drafting its first set of guidelines for how to deal with newly-arrested terrorism suspects.

And Justice Department Inspector General Glenn Fine appeared alongside FBI General Counsel Valerie Capronie April 15 to face withering questioning before a House Judiciary subcommittee over the FBI's use of "exigent letters" and National Security Letters in order to access personal data and records.

D.C. federal court makes Gitmo habeas petitions public

Late last Friday, the U.S. District Court for the District of Columbia released court documents related to the habeas corpus petitions for two Guantánamo Bay detainees. One of the petitions regarded Mohamed Ould Slahi, a native Mauritanian who has been held at Gitmo for over seven years. U.S. District Court Judge James Robertson ordered that Slahi be freed on March 22, stating in his decision that the government had not proved Slahi's connection to al Qaedaor the 9/11 attacks, and could not hold Slahi based purely on suspicion of terrorist ties. In 46 habeas petitions filed since the June 12, 2008 Boumedienne v. Bush ruling, the U.S. District Court in Washington D.C. has granted 34 habeas petitions while rejecting 12 others -- it has roughly 200 petitions still outstanding. The Miami Herald details the changes the court has made to accommodate its unique caseload.

In a case that could have far-reaching effects on judicial authority to determine the fate of prisoners held at Guantánamo Bay, the D.C. Circuit Court is scheduled to hear arguments next week on whether five Uighur detainees can be released into the United States. The Obama administration filed a brief Monday defending Congress's ability to overrule court decisions to release detainees into the United States. Lawyers for the detainees have argued that Congressional legislation forbidding their clients' entry into the United States violated several constitutional rights.

Awlaki announcement provokes further reactions

Last week's confirmation that radical American cleric Anwar al-Awlaki has been placed on a CIA "hit list" continued to generate passionate reactions. Awlaki's tribe threatened retaliation for any strike against him and warned Yemenis of cooperating with U.S. attempts on his life. Yemen's government claimed they were not hunting Awlaki, an accused al Qaeda operative who is believed to have helped inspire the attacks at Fort Hood and the failed Christmas day bombing of Northwest Airlines Flight 253. Meanwhile, Awlaki's father told Al Jazeera English that his son would stop criticizing the United States if the government agreed to cease targeting him.

Yemen expert Greg Johnsen, writing in Newsweek, questioned the wisdom of killing Awlaki:

Unfortunately, the administration's argument [for killing Awlaki] is based more on frustration and assumption than real strategy... Inside that organization, he is a nobody -- at best, a midlevel functionary in a local branch. There are dozens of men who could do more harm to the United States, and killing Awlaki would only embolden them and aid in recruitment. For an organization as resilient and adaptive as AQAP, his death would be a minor irritant, not a debilitating blow. The futility of such a strike should give Obama pause before he greenlights the assassination of a fellow citizen.

Trials and tribulations

  • Despite police inquiries and parliamentary criticism, UK Justice Secretary Jack Straw has reportedly rejected parliamentary proposals for legislation outlawing involvement in the rendition of suspected terrorists. In other British counter-terrorism news, a new BBC Radio report claimed that government de-radicalization efforts targeting imprisoned terrorists are ineffective.
  • A federal judge held a brief hearing on April 13 to "take the temperature" of the case against attempted Christmas Day bomber Omar Farouk Abdulmutallab. Abdulmutallab was not present at the hearing, and no date has been set for his trial.
  • Pakistani authorities have arrested a fourth suspect allegedly involved in Najibullah Zazi's plot to attack the New York City subway system. The Wall Street Journal reports that the suspect has been in Pakistani custody for several months, and could be extradited to face charges in the United States.
  • With German Chancellor Angela Merkel set to visit the United States next week, her governing coalition remains locked in a battle with opposition parties over whether to accept additional Gitmo detainees for resettlement. While Germany's government has reportedly been negotiating a resettlement, it is Merkel's coalition that remains undecided about whether or not to support the move.
  • Defense attorneys for five northern Virginia men arrested in Pakistan in November on suspicion of terrorism intend to argue that police fabricated evidence in the case. The lawyers will contend at the court hearing on April 17 that Pakistani police described evidence against the men sometimes days or weeks before the evidence was "discovered." The Washington Post has a useful timeline of events in this still-mysterious case.
  • President Obama authorized the Treasury Department this week to sanction or freeze the bank accounts of individuals suspected of financing or otherwise supporting Somali militants, including 12 individuals linked to the al Qaeda-linked al-Shabab group.

Alex Wong/Getty Images