The LWOT

The LWOT: House effectively bans Gitmo closure, KSM civilian trial; Judge dismisses Awlaki targeted killing lawsuit

Foreign Policy and the New America Foundation bring you a twice 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.

House effectively bans Gitmo transfers, KSM civilian trials

By a vote of 212-206 Congress on Dec. 8 approved a provision, secreted away in a vital omnibus spending bill authorizing the government's spending through next year, banning the use of government funds to transfer to the United States or try in civilian courts Guantánamo Bay detainees, and specifically 9/11 plotter Khalid Sheikh Mohammed (AJE, AP, BBC, Lawfare Blog). The passage of the bill surprised some observers given the still Democratic majority in the House of Representatives. If the bill passes the Senate and gets approval from President Barack Obama, it would effectively eliminate any chance for Guantánamo's closure or a civilian trial for KSM before at least next September, when the funding provisions expire (Politico, Telegraph).

The administration and the Justice Department virulently opposed the provision, with U.S. Attorney General Eric Holder writing a letter to Senate Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY), calling the legislation "an extreme and risky encroachment" on Executive authority. He continued (NYT, Miami Herald, CBS):

This provision goes well beyond existing law and would unwisely restrict the ability of the executive branch to prosecute alleged terrorists in federal courts or military commissions in the United States as well as its ability to incarcerate those convicted in such tribunals.

The vote came on the heels of a brief unclassified report (available here) required by the 2010 Intelligence funding bill and released by the Office of the Director of National Intelligence on Dec. 7 suggesting that nearly 25% of Gitmo detainees released, about 150 out of 598, had either returned or were suspected to have returned to militant activity (CNN, WSJ, Miami Herald, Bloomberg, NYT).While the overwhelming majority of the detainees were released under President Bush, the report states that out of 66 detainees released under Obama, two are "confirmed" to have returned to militancy, while three are "suspected" of such actions (Washington Post, ABC). The number is an increase from last year's Department of Defense analysis that roughly 14% of detainees had returned or were suspected of having returned to the battlefield, though the White House pushed back on critiques of detainee transfers and the overall policy of closing Gitmo (ABC).

WikiLeaks founder Julian Assange reportedly has the personal files of every Gitmo detainee, sensitive information that could reveal internal government analysis of the threat posed by detainees, including some who have been released from the prison (NYT, Reuters).  And Lyle Denniston has a helpful primer on the eight detainee-related cases seeking review in the Supreme Court (SCOTUS Blog).

Judge dismisses Awlaki targeted killings lawsuit

In a ruling filed Dec. 7 (available here) Federal Judge John Bates dismissed the lawsuit filed on behalf of radical cleric and alleged Al Qaeda in the Arabian Peninsula (AQAP) figure Anwar al-Awlaki by his father, represented by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) on the grounds that Awlaki's father does not have standing to bring suit in the case (Washington Post, CNN, Reuters, AJE). While the ruling was made on procedural grounds, Bates also wrote that the case poses "stark, and perplexing, questions" about the government's ability to target a citizen based merely on the assertion of his membership in a terrorist group.

However, Bates ultimately ruled that targeting decisions in a time of conflict are political and in this specific case could not be evaluated by the court (NYT).The ruling thus does not grant, according to Bates, "unreviewable authority" for the government to target its own citizens (Politico). And while Bates did not rule on the government's reluctant invocation of the state secrets doctrine, he indicated that it would have likely succeeded (Lawfare Blog). The plaintiffs have reportedly not decided if they intent to appeal the ruling or not.

The success of the standing argument rests, according to Bates, on the evidence that Awlaki was not incommunicado during the period he was being targeted, and had clearly chosen not to avail himself of his Constitutional rights as a citizen. However, as former Bush administration lawyer Jack Goldsmith points out, Bates' ruling still found that a terrorist abroad could still have standing in a U.S. court, and affirmed the protections guaranteed Awlaki should he want to challenge his targeting, even if done via remote connection (Lawfare Blog).

Maryland man arrested in sting operation

Authorities on Dec. 8 arrested Antonio Martinez, a U.S. citizen and recent convert to Islam, on charges (criminal complaint available here) that he attempted to set off an FBI-supplied inert explosive outside of an army recruiting station in Maryland (Washington Post, CBS, AFP, NYT,  Lawfare Blog). Martinez, who changed his name (though not officially) to Muhammad Hussain, reportedly came to the attention of federal authorities after a confidential informant showed them Martinez' Facebook postings starting in late September about violence in the name of Islam and his desire to fight American troops in Afghanistan and Pakistan (LAT, Reuters).

The FBI then initiated contact with Martinez, eventually introducing him to an "Afghani brother" who was actually an FBI agent, who offered to help Martinez build a bomb. According to the complaint Martinez was recorded speaking about his obsession with jihad, his attachment to the sermons of radical cleric Anwar al-Awlaki, and his desire to strike the U.S. military (ABC, VOA). The arrest is one in a string of similar sting operations in the last two years, and the White House said the operation showed the need for "vigilance" against domestic terrorism (AP, CNN).

Martinez' radicalization was reportedly driven largely through the internet, though he bounced from religion to religion, and even allegedly considering joining the military before his conversion, and clashed with his mother about his new religion (AP, LAT).  Dina Temple-Raston reports on concerns among authorities about the radicalization of  some Latino converts to Islam, while Paul Cruickshank and Tim Lister explore the world of internet jihad (NPR, CNN).And a leaked Department of Homeland Security report details concern about efforts from jihadist supporters and terrorist groups to recruit and disseminate information using Facebook (Fox).

Trials and Tribulations

  • On Dec. 7 the United States State Department listed U.S.S. Cole bomb plotter and purported key AQAP figure Fahd al-Quso as a "specially designated global terrorist" freezing his assets in the United States and forbidding Americans to engage in transactions with him (State, AFP, WSJ).
  • Mohamed Wali Zazi, whose son Najibullah Zazi pled guilty earlier this year to plotting a bomb attack against New York's Subway, pled not guilty Dec. 9 to charges that he obstructed evidence and lied to authorities during the investigation of his son's plot (AP). And Adis Medunjanin, accused of involvement in the plot, sought to have statements he made to police after his arrest, which Medunjanin claims were made after police threatened to arrest his family, suppressed (WSJ).
  • A document released by the website WikiLeaks details suspicions of diplomats stationed in Morocco that six defendants sentenced as part of the terrorism trial of Abdelkader Bellraj were punished for their political connections, rather than any links to terrorism (Legal Lift). And according to another document, American television programming rebroadcast to Saudi Arabia - such as Desperate Housewives and The Dave Letterman Show - were having a more positive impact on impressions of the United States than U.S. government-funded programming in the region, such as al-Hurra (Guardian, Time).
  • The Pentagon mental health evaluation continued this week for Maj. Nidal Malik Hasan, accused of killing 13 soldiers in a shooting last November at Ft. Hood (CNN). If deemed competent Hasan will go before a courts martial, which could sentence him to death if he is found guilty.

Virginie Montet/AFP/Getty Images

The LWOT

The LWOT: WikiLeaks: Saudi citizens "most significant" terrorism funders

Foreign Policy and the New America Foundation bring you a twice 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.

WikiLeaks reveal role of Saudis in terrorist financing

Despite progress in blunting the movement of money destined for terrorist groups, U.S. State Department cables released by the website WikiLeaks reveal concern among officials of the continued flow of money to groups like al Qaeda, Lashkar-e-Taiba (LeT), the Taliban, and Hamas (AJE, Bloomberg). While the cables cover various means terrorist groups use to raise money, from tours of Scandinavia to bank robberies in Yemen, cables from Washington expressed concern about the role of Saudi citizens in funding these groups, especially during the Hajj pilgrimage and the holy month of Ramadan (CNN).

According to one cable signed by Secretary of State Hillary Clinton, "Donors in Saudi Arabia constitute the most significant source of funding to Sunni terrorist groups worldwide," though countries like Kuwait, Qatar and the United Arab Emirates also reportedly pose problems in policing terrorist financing (Guardian, WSJ). Other cables noted Saudi improvement in prosecuting terrorism financiers, while senior administration officials privately expressed divergent opinions of the financial strength of al Qaeda and its affiliates (NYT).

Separately, Jordan has stepped up efforts to protect the Jordan-headquartered Arab Bank PLC, currently facing lawsuits in New York over payments from the bank that allegedly went to support the families of Palestinian suicide bombers and terrorist groups (WSJ).

WikiLeaks lists foreign sites, Assange arrested in London

WikiLeaks this weekend also released a State Department list of key infrastructure sites whose loss "could critically impact" the national security and public health of the United States, ranging from Bauxite mines in Guinea to a snake-bite anti-venom manufacturer in Italy to a hydroelectric dam in Canada (NYT, BBC, AFP). The lists' release prompted concern that the sites could become targets for terrorist attacks.

In other documents, diplomats reported that Yemeni president Ali Abdullah Saleh offered the United States an "open back door" for dealing with terrorists in his country, while others detailed the sometimes frustrating relationship between Saleh and American officials (Guardian, Washington Post). Yemen's Deputy Prime Minister faces a parliamentary inquiry due to a leaked cable implying a Yemeni coverup of American airstrikes in Yemen (Reuters). And an unreleased cable given to the New York Times reportedly notes that 23 Australians, many of them women, were added to a U.S. terrorism watch list this year due to their activities in Yemen (Australian Broadcasting Corporation).

After threatening to release over 250,000 remaining classified State Department documents in the event of legal action against him, WikiLeaks founder Julian Assange surrendered to U.K. authorities on Dec. 7 to face a Swedish arrest warrant for suspicion of rape (NYT, Washington Post, LAT, CNN, AJE, BBC, Guardian).

Headley interrogations provided new Mumbai details

In an interview with the Wall Street Journal, Indian Home Secretary G.K. Pillai said that during interrogations with Indian agents in early June 2010, Mumbai attack plotter David Coleman Headley identified the voices of three out of four "handlers" who supervised and coordinated the devastating attacks on India's economic hub allegedly perpetrated by the militant LeT organization (WSJ). Pillai said that despite information given to Pakistan on those responsible for attacks this summer, he believed that Pakistan is making "no progress" towards their arrest; Pakistani officials say they have been unable to identify the six names of attack planners given to them by Indian officials.

Tawwahur Hussain Rana, accused of helping cover Headley's trips to Mumbai to scout targets for the attack, is scheduled to face trial in Chicago starting February 14, 2011 (Fox, AP). And a State Department cable from June 2009, released by WikiLeaks, claimed that LeT plotted to assassinate the Hindu nationalist minister of India's Gujarat state, and scouted possible training camp locations in India (Telegraph).

Trials and Tribulations

  • Jerry Markon tells the story of a former FBI informant currently suing the Bureau, who claims he was asked to spy on a California mosque, and "entrap Muslims as he infiltrated their mosques, homes and businesses" (Washington Post). His behavior and comments while undercover prompted mosque-goers to report the informant to the FBI, on the suspicion that he was a terrorist.
  • New York magazine this weekend profiles Evan Kohlman, the jihadi internet watcher who has become a go-to "expert witness" for the prosecution in federal terrorism cases, but has amassed serious criticisms of his work along the way (New York).
  • Federal prosecutors unsealed an indictment (available here) last Friday against a San Diego man, Ahmed Nasir Taalil Mohamud, for conspiring to provide material support to the Somali al-Shabaab group (AP, WSJ, Sign On San Diego). Mohamud allegedly conspired with three other San Diego men already indicted in the case, Basaaly Saeed Moalin, Mohamed Mohamed Mohamud and Issa Doreh. And the AP writes about the two lives and personalities of Mohamed Osman Mohamud, arrested in a sting operation after he allegedly tried to explode an inert bomb during Portland, Oregon's Christmas Tree lighting ceremony (AP).
  • Several Guantánamo Bay detainees, including Omar Khadr, have filed petitions related to several provisions about relocating detainees to third countries derived from a 2008 judge's ruling (Lawfare Blog). And the former chief military prosecutor at Guantánamo, Col. Morris Davis, is battling to get his job back at the Congressional Research Service a year after he says he was fired for writing two op-eds criticizing the Obama administration's detainee policies (LAT).
  • Greek security forces raided several purported terrorist safe houses this weekend, reportedly seizing weapons and explosives, and arresting at least 10 members of a suspected left-wing group (AP, AFP).
  • Saudi officials told Al Jazeera this week that interrogations of alleged al Qaeda operatives rounded up in recent months reveal that the group planned to send "poisoned gifts" to the offices of Saudi government and security officials, as well as members of the media (AJE).
  • The AP looks at how anti-terrorism measures have changed New York City in obvious and also subtle ways, especially as the holidays approach (AP). And Benjamin Weiser this weekend spoke to six jurors from the 2001 trial of four defendants convicted of plotting to blow up the U.S. embassies in Tanzania and Kenya in 1998, as they reflected on the conviction, on one count of conspiracy in the same case, of former CIA and Gitmo detainee Ahmed Khalfan Ghailani (NYT).

TIM SLOAN/AFP/Getty Images