The LWOT: Obama to resume Gitmo trials; Supreme court declines habeas case

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

Obama to resume Gitmo trials

 Charlie Savage reported Jan. 20 that U.S. Secretary of Defense Robert Gates will soon authorize new military commissions trials at Guantánamo Bay for several detainees, including "high-value" detainee Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 U.S.S. Cole bombing (NYT). The move is yet another sign that Guantánamo will be open for the foreseeable future, in the face of political pressure against closing the prison and pursuing civilian trials for detainees (WSJ, AFP). 

Nashiri's case presents challenges for any future commission, due to his torture during CIA interrogations at secret sites in Poland and Thailand (Guardian, RFE/RL). Nashiri's treatment while in CIA custody is currently under investigation in Poland, where Nashiri was granted "victim status" in October 2010. His trial will also test jurisdictional rules and the looser military commissions statutes regarding the admission of hearsay evidence (NYT).   

U.S. Attorney General Eric Holder authorized Nashiri's military trial along with four others last year, as well as five civilian trials for Guantánamo detainees. Orders for trial will likely also be filed for Ahmed al-Darbi, accused of plotting an attack against oil tankers in the Straits of Hormuz, and an Afghan named Obaydullah, accused of planting explosives that targeted American forces (ProPublica). Only one of the civilian trials, that of Ahmed Khalfain Ghailani, has gone forward, and a federal judge heard arguments from Ghailani's lawyers Jan. 20, seeking a new trial for their client (CNN, NYT, VOA, AP).  

Supreme Court declines habeas case

The Supreme Court on Jan. 18 declined to hear the habeas petition of Yemeni Gitmo detainee Mohammed al-Adahi, letting stand a D.C. Circuit court reversal of a 2009 order freeing al-Adahi (AP, CSM, Bloomberg). The reversal could help set precedent on several evidentiary rules for evaluating habeas petitions, and Lawfare Blog's Benjamin Wittes writes that (Lawfare Blog):

The Supreme Court's unwillingness to hear the case suggests a comfort level with letting the D.C. Circuit continue writing the rules of these habeas cases and a lack of interest in getting down and dirty with the nitty gritty of detention.

In a statement Jan. 18, chairman of the House Armed Services Committee Buck McKeon (R-MO) spoke out in favor of Gitmo, saying, "I would like to see if we have detainees in other parts of the world that we can't seem to decide what to do with, that would be a place for them" (CNN, Lawfare Blog).

Lawyers for five former detainees currently on trial on terrorism charges in France, Ridouane Khalid, Khaled Ben Mustafa, Brahim Yadel, Nizar Sassi and Mourad Benchellali, used documents released by the website WikiLeaks in court on Thursday to argue for their clients' acquittal (The Canadian Press). And the Swiss government this week denied a claim in a document released by WikiLeaks that the Swiss, in discussions with the U.S. government, linked Swiss cooperation on resettling two Gitmo detainees and Iran sanctions to a U.S. lawsuit against the bank UBS AG (WSJ).  

Report offers new evidence in Daniel Pearl killing

A lengthy investigation by students and instructors at Georgetown University and the Center for Public Integrity has provided new details into the 2002 kidnapping and killing of Wall Street Journalist Daniel Pearl in Pakistan, unearthing evidence to support 9/11 planner Khalid Sheikh Mohammed's 2007 claim to have killed the journalist himself (BBC, CNN, Guardian, NYT). Using "vein matching" the researchers linked the hand in the video of Pearl's killing to a photograph of KSM taken at Guantánamo. The investigation also found that 14 out of 27 of the individuals involved in the plot are free and that some key figures in the plot, such as Briton Omar Sheikh, could be released from prison due to the use of tainted or false evidence by Pakistani prosecutors (BBC, Telegraph, The Canadian Press).

The report also details how Pearl was originally kidnapped by Sheikh and others from the group Lashkar-e-Jhangvi, before al Qaeda figures including KSM and Saif al-Adel took over the operation, dooming Pearl to his brutal murder (Washington Post).

U.S., Britain target Pakistani Taliban

The U.S. State Department announced Jan. 20 that it had designated top Pakistani Taliban commander Qari Hussain a "specially designated global terrorist" freezing any assets in the United States and forbidding Americans from helping Hussain or engaging in trade with him (CNN, Politico, AP). Hussain is notorious for his viciousness and is allegedly a major trainer of suicide bombers for the Pakistani Taliban, reportedly specializing in training children for those operations. He is believed to have been responsible for training the suicide bomber who killed seven CIA agents at their base in Eastern Afghanistan in late 2009 (WSJ).  

The designation comes after British Home Secretary Theresa May on Jan. 18 moved to ban the Pakistani Taliban (Reuters, AP).  

MLK Day march targeted by backpack bomb

City workers in Spokane, Washington on Jan. 18 discovered what the FBI has described as a "viable" explosive that could have caused "multiple casualties" along the planned route for a Martin Luther King Day parade (ABC, NYT, LAT, VOA). The local FBI Joint Terrorism Task Force is investigating the attempted bombing, and the intended target cast suspicion on the reportedly 15 Washington-based white supremacist groups (Washington Post, MSNBC).

Though he has not been in court since pleading guilty last February to plotting coordinated suicide attacks against the New York Subway, Najibullah Zazi may be called to testify against his father, charged with obstructing the investigation into his son, and Adis Medunjanin, charged with being a co-conspirator in Zazi's plot (The Canadian Press). Zazi is in prison awaiting his June 24 sentencing hearing, at which he is likely to receive life imprisonment.

A federal appeals court this week upheld the 2009 conviction and life sentence of Oussamma Kassir, who attempted to set up a training camp in Oregon in 1999 and 2000 for al Qaeda operatives to train with firearms for attacks in Europe (AP).

And a decision by Rep. Peter King (R-NY), the chair of the House Homeland Security Committee, not to include certain critics of American Muslim leaders as witnesses in his upcoming hearings on American Muslim radicalization has sparked protest from some of those excluded from the hearings, including Steve Emerson of the Investigative Project on Terrorism, who wrote an angry letter to King in response (Politico).

Trials and Tribulations

  • After suing the U.S. government for not allowing him to leave Kuwait, where he was detained at the behest of U.S. authorities (and allegedly beaten), American Gulet Mohamed reportedly was set to arrive at Dulles International Airport outside of Washington, D.C. this morning (Washington Post, CNN).
  • British Home Office Minister Damian Greene announced to parliament on Jan. 20 that the government would let lapse laws allowing the detention of terrorism suspects for 28 days without charge (BBC, CNN, Guardian, Reuters). Terror suspects after Monday can be held for 14 days without charge. Britain's governing coalition is expected to announce other reforms to controversial anti-terrorism practices next week.
  • Canadian police on Jan. 19 arrested Faruq Khalil Muhammad 'Isa on a U.S. warrant for allegedly giving support to an unnamed transnational terrorist network responsible for a 2009 suicide bombing at a U.S. base in Mosul, Iraq which killed five American soldiers (FBI, CNN, AP, Toronto Sun).
  • Both the Taliban and Pakistan's powerful intelligence agency the ISI denied reports this week, broken by the Washington Post's Jeff Stein, that Taliban leader Mullah Omar had been taken to a Karachi hospital by the ISI to have emergency heart surgery (AP, AFP, Washington Post).
  • The trial for a Somali man accused of attempting to kill cartoonist Kurt Westergaard opened Jan. 19 in the Danish city of Arhus (Reuters). Westergaard has been under threat since his cartoon of the Prophet Muhammad ran along with others in the newspaper Jyllands-Posten in 2005.
  • An Indonesian court on Jan. 19 sentenced a former Indonesian policeman to 10 years in prison for selling weapons to an insurgent group known as Al Qaeda in Aceh (AP).

Virginie Montet/AFP/Getty Images


The LWOT: Awlaki convicted, in Yemen; New filings in Ghailani sentencing

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

Editor's Note: Peter Bergen, the Director of the New America Foundation's National Security Studies Program, published last Tuesday his comprehensive history of the War on Terror, The Longest War: The Enduring Struggle Between America and Al-Qaeda. Reviews of the book can be found here, here, and here. More importantly, however, Bergen appeared on Jon Stewart's The Daily Show last night to discuss the book (Comedy Central).

Awlaki convicted in Yemen

A Yemeni court Jan. 17 convicted radical American cleric Anwar al-Awlaki in absentia to 10 years in prison for inciting the killing of a French oil worker last October, as well as for belonging to a terrorist organization (AJE, AFP, CNN, Reuters, AP). Awlaki's cousin Othman received an eight-year sentence in absentia, while the killer, Hisham Assem, was sentenced to death.

An article penned by Awlaki on the justifications for taking money and property from Americans and other Westerns appeared in the most recent issue of AQAP's English-language publication Inspire, released online this weekend and edited by American Samir Khan (ABC). A Yemeni journalist and al Qaeda expert who interviewed Awlaki in 2009, Abdulelah Shai, was sentenced to five years in prison for "aiding" al Qaeda as well as Al Qaeda in the Arabian Peninsula (AQAP), a charge he denies (Reuters).

CBS News and 60 Minutes have a must-read feature on the security, political and economic environment in Yemen, and the sometimes uncertain partnership with the United States in the fight against AQAP (CBS). Dozens of protesters in Yemen this weekend called for the release of the 92 Guantánamo detainees from Yemen, some of whom have been cleared for release but kept at the prison due to Yemen's precarious security situation (The National).

And in his first interview after undergoing heart surgery, former Vice President Dick Cheney said that President Barack Obama had adopted many of the Bush administration counterterrorism policies, and learned that, "he's not going to be able to close Guantanamo" (TIME, The Hill).  

New filings in Ghailani sentencing 

In a filing late Friday, prosecutors in the case of former CIA and Guantánamo Bay detainee Ahmed Khalfan Ghailani introduced an interrogation report from before Ghailani was introduced to the civilian courts, where Ghailani reportedly said he knew of the 1998 bombing of the U.S. Embassy in Tanzania, "about a week before it was bombed" (NYT). Ghailani was the first former CIA and Guantánamo detainee to face civilian trial, and prosecutors are currently seeking a life sentence after his conviction in November on one count of conspiracy to destroy U.S. government property in the embassy bombing.

In extensive interviews with the New York Times, Ghailani's defense attorneys laid out in detail their strategy for defending their client, which focused on the argument that Ghailani was an unwitting "dupe" in the preparations for the attack (NYT).

Lawyers for four men convicted of plotting to attack synagogues and an Air National Guard base in New York have asked a judge to grant their clients a new trial, alleging among other things that the government informant who played a key role in the case, Shahed Hussain, committed perjury before the court (Times Herald-Record).

And a New York judge last Thursday sentenced Guyana native Abdel Nur to 15 years in prison for providing material support in a plot to attack fuel tanks and a fuel line running into JFK International Airport in New York (CNN, UPI, FBI). Nur pled guilty last June to seeking out American al Qaeda operative Adnan el-Shukrijumah in relation to the planned attack, and introducing the plotters to Caribbean militant operative Yasin Abu Bakr. Abdul Kadir and Russell Defreitas were convicted last July for their role in the plot, while the last alleged co-conspirator, Kareem Ibrahim, is still awaiting trial in the case.

American held in Kuwait barred from returning home

According to a lawyer for the Council on American Relations (CAIR), American Gulet Mohammed, who has been detained in Kuwait for a month and allegedly beaten by authorities there, is on a no-fly list and was not allowed to return to the United States on Jan. 16 (AP). Kuwaiti officials reportedly attempted and failed to repatriate Mohamed, after he was questioned repeatedly by Kuwaiti -and reportedly American - investigators about his travels in Somalia and Yemen in 2009 (Economist).

Trials and Tribulations

  •  The Supreme Court today will hear oral arguments on the U.S. government's invocation of the "state secrets" privilege in a lawsuit filed by a Pentagon contractor against the Department of Defense (SCOTUS Blog). 
  • Nine men arrested before Christmas on charges of plotting terror attacks in the U.K. appeared briefly in court in London via video link Jan. 14 (BBC). They were remanded into custody until their next hearing on Feb. 25.
  • A Jordanian court on Jan. 17 opened the trial ofIsam Mohammed Taher al-Barqawi (known more commonly by his nom de guerre Abu Muhammad al-Maqdisi), the "mentor" of slain former Al Qaeda in Iraq leader Abu Musab al-Zarqawi, on charges that al-Barqawi and three others raised money for and tried to join the Taliban in Afghanistan (Canadian Press).
  • Australian Prime Minister Julia Gillard has requested a new investigation into the role played by Australia's intelligence services in the arrest and rendition to Egypt by the CIA of Mamdouh Habib, who was later transferred to Guantánamo before being released (Sydney Morning Herald).
  • British counterterrorism agencies have been reportedly linked to police units and centers in Bangladesh known for the torture and sometimes death in interrogation of suspects (Guardian).
  • Canadian authorities are investigating an article that appeared in the Asia Times  newspaper naming 12 alleged Canadian converts to Islam reported to be training in Pakistan's tribal areas to commit terrorist attacks in Canada (Globe and Mail).
  • Swiss lawmakers are calling for the expulsion of diplomats involved in alleged surveillance operations around U.S. missions in the country, operations revealed in cables released by the website WikiLeaks (AP).
  • After a series of secret hearings, an Irishman accused of attempting to smuggle arms for the Real Irish Republican Army (IRA) made his first public appearance in a Lithuanian court last Friday (AP).