The LWOT

The LWOT: White House releases National Security Strategy; Bagram detainees denied habeas rights

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.

New National Security Strategy focuses on terror threat, domestic radicalization

U.S. President Barack Obama's administration released its National Security Strategy (available here) May 27, focusing extensively on the threat from international and, for the first time, domestic terrorism (CNN, AJE, Washington Post). As part of the strategy's rollout, senior White House counterterrorism advisor John Brennan spoke at the Center for Strategic and International Studies May 26, focusing specifically on the domestic terror threat (CNN, White House). Brennan defined the threat as coming from ill-trained "foot soldiers" attempting small-scale attacks against the United States. He noted that the new NSS does not view terrorism through the lens of the Bush-era "War of Ideas" and spoke strongly about the need to not regard American Muslim communities as potential threats, but instead to support them in preventing the radicalization of Muslim youth (WIND).

The NSS remains vague on the legal structures governing the treatment and prosecution of terrorists. In a section titled, "Strengthen the Power of Our Example," the document highlights the importance of prohibiting torture "without Exception or Equivocation," and protecting the rule of law and civil liberties. However, the same section also leaves open the possibility of creating new legal institutions for prosecuting terrorists, conducting terrorism-related trials in both military and civilian courts, and implementing procedures for legally-regulated detention without trial (page 36):

"The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted-but pose a danger to the American people-we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government."

Obama administration pushes back on closing Gitmo

The National Security Strategy reaffirms on page 22 the administration's goal to close the prison at Guantánamo Bay. This step, the strategy argues, will "deny violent extremists one of their most potent recruitment tools" (NSS). In a bid to counteract Congressional efforts to keep the prison open, National Security Advisor Gen. James L. Jones wrote a letter May 27 to the chair and ranking member of the House Appropriations Committee describing the administration's efforts to ensure that all prisoners repatriated from Gitmo are vetted and monitored, to ensure they do not return to militancy (Atlantic). In the letter, Gen. Jones also writes that two congressional proposals to block the closure of Guantánamo "are counter to the national-security interests of the United States" (Newsweek).

New York Times reporter Charlie Savage on May 25 described the uproar caused by a provision in the defense authorization bill currently before Congress that would order the Pentagon to investigate lawyers for Gitmo detainees if there was "reasonable suspicion" that they violated Pentagon policies, put members of the armed forces at risk, or "interfere" with the operations at Gitmo (NYT, ABC). State Department legal advisor Harold Koh this week defended administration lawyers who worked pro bono for detainees, saying, "They are heroes. They are among the finest lawyers I have ever known" (TAP).

The UN special rapporteur on extrajudicial, summary or arbitrary executions will issue a report June 3 arguing that the CIA should discontinue using armed drones in attacks, instead giving that responsibility to regular armed forces (AJE). Charlie Savage writes that State Department and Defense Department lawyers have worked for months to explain the legality of using CIA operatives, who do not wear uniforms like conventional soldiers, to operate the drones. At the same time, the administration is attempting to try Guantánamo detainees like Omar Khadr for murder in a war zone, based in part on the argument that the detainees did not follow the laws of war, for instance by not wearing uniforms (NYT).  He reports that a part of the newest version of the military commissions manual was edited to protect drone operators from possible prosecution in international or U.S. courts.

On May 26, a federal judge granted the habeas petition of Yemeni Gitmo detainee Mohammed Hassan, bringing to 36 the number of detainees who have successfully argued for their release (Miami Herald). And a new video from Al Qaeda in the Arabian Peninsula named Othman Ahmed al-Ghamdi, a former Gitmo detainee released in 2006, as one of its senior members (Reuters).

Court rules Bagram detainees do not have habeas rights

A U.S. appeals court panel ruled May 21 that detainees at Afghanistan's Bagram Air Base do not have the right to appeal their incarceration, overruling a lower court decision and siding with the Obama and Bush administrations (LAT, Reuters, McClatchy). The three-judge panel ruled that, given Bagram's location in an active war zone, as well as the fact that Afghanistan's government holds sovereignty over Bagram, detainees there do not fall under the jurisdiction of U.S. courts (CNN).

Civil libertarians and others have expressed concern that this ruling will result in Bagram becoming a "second Guantánamo," where the United States can indefinitely detain terrorism suspects. However, Politico's Josh Gerstein notes that the Circuit Court opinion pointedly chose to rule on the status of current, not future, detainees sent to Bagram or another detention site in an active conflict zone in order to avoid judicial review (Politico). This leaves open the possibility, should the Obama administration choose to improperly send non-Afghan detainees to Bagram for detention, that a court could potentially grant those detainees habeas rights.

Trials and Tribulations

  • In two must-read articles this week, Mark Mazzetti and Marc Ambinder separately detail a heretofore secret executive order allowing CENTCOM, under the command of Gen. David Petraeus, to conduct secret surveillance, intelligence-gathering, and direct action missions outside of conflict zones with little oversight (NYT, Atlantic).
  • During a visit to Islamabad last week by CIA Director Leon Panetta and National Security Advisor Jones, U.S. officials reportedly provided Pakistan's government with new evidence of Times Square bomber Faisal Shahzad's links to the Tehrik-i-Taliban Pakistan (LAT, ET).
  • A Mauritanian court May 25 sentenced three members of Al Qaeda in the Islamic Maghreb to death for their roles in the murder of four French tourists in 2007 (AP). Four others received lighter sentences, and two were acquitted.
  • The inquest into the 7/7 London transportation bombings will investigate whether or not British intelligence agencies could have prevented the 2005 attacks (AP). It is still unclear if MI5 agents will be called to testify.
  • Italy announced May 25 that it would take two as-yet undetermined prisoners from Gitmo; the Italian interior minister is examining a list of eligible detainees, which implies that the men may be allowed to resettle in Italy (Miami Herald).
  • A Chilean appeals court ruled that a Pakistani student originally detained at the U.S. Embassy in Santiago for having traces of explosives on his person, and then freed after several days, must return to jail (Dawn).

Alex Wong/Getty Images

The LWOT

The LWOT: US asserts right to target Americans; Shahzad appears in court

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.

Drones may target more Americans

In a May 18 speech, U.S. President Barack Obama's chief counterterrorism advisor John Brennan reiterated the government's right to kill Americans who join terrorist groups without judicial review (Reuters). Brennan said that the strikes were legal, and that the Obama administration was determined to prevent militants from "hid[ing] behind their U.S. passport." In this week's must-read article, Reuter's Adam Entous details the Obama administration's escalating policy of targeted killings; he writes that, according to senior officials, one reason for the increase in drone strikes under Obama is confusion over how to deal with captured terrorists, in the wake of the announced closing of the Guantánamo Bay detention center (Reuters).

However, closing Gitmo may have just gotten more difficult. The House Armed Services Committee this week inserted a provision in the 2011 defense spending bill expressly prohibiting the use of Pentagon money to buy the Thomson Correctional Facility in Illinois, where the White House wants to move the remaining Gitmo detainees (WIND).

Shahzad gets his (delayed) day in court

Failed Times Square bomber Faisal Shahzad appeared in court for a brief pre-trial hearing May 18, over two weeks after his arrest (WSJ). Shahzad was informed of his rights, as well as the charges against him, but did not enter a plea. Shahzad has been cooperating with federal authorities since his arrest, and has waived his right to a speedy hearing before a judge (NYT). The U.S. Attorney's office also submitted a letter to the court, explaining Shahzad's status. (U.S. Attorney's letter) The government may seek to alter laws requiring rapid hearings for terrorism suspects as part of a broader proposal to change how suspects can be questioned after their arrest (NYT).

U.S. officials confirmed this week that the recently-created High Value Interrogation group, composed of interrogation specialists, linguists and others largely from the FBI, Pentagon and CIA have aided in Shahzad's questioning (LAT, Reuters). While there is no express prohibition on CIA employees interrogating suspects in American custody, the agency has reportedly avoided directly interrogating Shahzad (Politico).

As new evidence of Shahzad's ties to the Tehrik-i-Taliban Pakistan (TTP) emerged, Pakistan announced the arrest of an army officer reportedly linked to Shahzad (LAT). The announcement came during a visit to Pakistan by CIA Director Leon Panetta and National Security Advisor James L. Jones (Washington Post, NYT). The two U.S. officials reportedly pushed Pakistani security officials for more aggressive military actions against militants in Pakistan's tribal areas, though Defense Secretary Robert Gates and Chairman of the Joint Chiefs of Staff Adm. Mullen said yesterday the United States was not pressuring Pakistan to begin an offensive in North Waziristan (Dawn).

Senate Intel Committee releases scathing report on Abdulmutallab

On May 18 the Senate Select Committee on Intelligence released a harshly-worded report on the intelligence failures that allowed Christmas Day bomber Omar Farouk Abdulmutallab to board the flight to Detroit that he attempted to destroy (Committee Report). The report in particular blames the National Combating Terrorism Center (NCTC), created based on a recommendation of the 9/11 Commission, for not pursuing and investigating evidence that could have prevented Abdulmutallab from boarding his flight (NPR). The report also found that the NCTC is not sufficiently organized or funded to pursue its mission of coordinating intelligence collected from all of America's intelligence agencies (WIND).

And Adm. Dennis Blair on May 20 resigned his post as Director of National Intelligence after being asked to step down by President Obama (NYT).

One confesses, one charged with aiding al Qaeda

Khalid Ouazzani, a naturalized U.S. citizen living in St. Louis, Missouri, confessed May 19 to funneling $23,500 to al Qaeda. The U.S. attorney said that Ouazzani was not planning attacks in the United States according to reports (AP). He was arrested in February, and could face up to 65 years in prison for bank fraud, money laundering, and conspiracy to provide financial support to a terrorist organization. In a separate case, former Brooklyn resident Sabirhan Hasanoff pleaded not guilty May 17 to charges that he planned to use his skills with computers to "modernize" al Qaeda (AP, Reuters).

A U.K. immigration court ruled that alleged al Qaeda plotter Abid Naseer cannot be extradited to Pakistan for trial, because of fears he will be tortured or illegally detained there (BBC). However, the court, basing its decision on secret evidence, found that Naseer was in fact an al Qaeda operative who poses a security risk to the United Kingdom. He and a co-defendant will likely have their movements and communications curtailed while they remain in the country (Guardian).

Trials and Tribulations

  • British Foreign Secretary William Hague announced May 20 that a British judge would open an official investigation into whether or not Britain's intelligence services were complicit in the torture of suspected terrorists (AFP).
  • The first Gitmo detainee to face a civilian trial, Ahmed Khalfan Gailani, told a court-appointed psychologist that he would prefer a trial before a military commission, saying he felt a military trial would be fairer (AP).
  • A Pakistani man in Chile was charged May 15 with possession of illegal explosives after attempting to enter the U.S. Embassy in Santiago with explosives residue on his person; he has denied the charges, and is free from custody while he awaits a full investigation into his case (AFP, Dawn).
  • The United States will relocate two unnamed Gitmo detainees to the Maldives (BBC).
  • Five Americans currently on trial in Pakistan on terrorism-related charges submitted statements to the presiding judge this week declaring their innocence, and stating their desire to return to the United States (Washington Post, Dawn).
  • A Mauritanian court this week sentenced a man to six years in prison for links to an attack committed by Al Qaeda in the Islamic Maghreb (AQIM) that killed four French tourists in 2007 (AFP). 12 other men are on trial in the same case.

Christine Cornell/Getty Images