The LWOT

The LWOT: 9/11 plotters to be tried at Guantánamo

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.

Obama changes course, sends 9/11 plotters to military trial

In a stunning reversal, U.S. Attorney General Eric Holder announced on Apr. 4 that the Department of Justice was dropping charges filed secretly in 2009 against the 9/11 plotters, including professed plot mastermind Khalid Sheikh Mohammed, clearing the way for the five to be tried in a military court at Guantánamo Bay, where they have been imprisoned since 2006 (NYT, Washington Post, CNN, BBC, Telegraph). The move marks the denouement of a nearly two-year effort to try the men in U.S. civilian court, a move that engendered staunch criticism from Republicans and some New York Democrats when Holder announced it in Nov. 2009, and makes it even less likely that President Barack Obama will make good on his long-stated plans to close the prison facility at Guantánamo. The five, who were all held in secret CIA detention facilities before their transfer to Guantánamo, originally sought to plead guilty at Guantánamo in 2008, but still-unanswered questions were raised as to whether or not military commissions allow defendants to plead guilty in a capital case (Miami Herald).

In terms both defiant and disappointed, Holder placed the blame before Congress for the failed effort to try the men in civilian court, saying (Lawfare Blog):

[W]e were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators - one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor...

Unfortunately, since I made that decision, Members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue. As the President has said, those unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security. Decisions about who, where and how to prosecute have always been - and must remain - the responsibility of the executive branch.  

However, Holder said that in the interests of seeking justice for the families of 9/11 victims and in the face of continuing restrictions, the decision was made to refer the men to military trial. He also unsealed an 80-page indictment from 2009 against Mohammed as well as Walid bin Attash, Ramzi bin Al-Shibh, Ali Abdul Aziz Ali and Mustafa Al-Hawsawi (available here) tracing in detail the roles each allegedly played in the 9/11 attacks (AP). The decision to refer the charges to military court was welcomed by Congressional Republicans and several others and slammed by civil liberties advocates, who said any decision to try the men in military courts lacked legitimacy and opened the door to challenges based on the court's procedures and the harsh interrogations the men endured in CIA custody (NYT, LAT, Legal Times, SCOTUS Blog). 

Also Apr. 4, the Supreme Court declined to hear cases filed by three Guantánamo detainees challenging D.C. Circuit Court rulings, siding with the Obama administration and effectively confirming the rulings of the lower court (AP, CSM, Lawfare Blog, LAT). The court also did not rule on the case of Kiyemba vs. Obama, which asks whether or not judges have the right to order detainees to be freed over the objection of the executive branch (SCOTUS Blog).Attorney General Holder also wrote a letter to Sen. Dick Durbin (D-IL) on Apr. 4, assuring him that no Guantánamo detainees will be transferred to the Thomson Correctional Facility, an Illinois prison originally intended to house Gitmo detainees before Congressional opposition blocked the move (AP).

Former Islamic militants play role in Libya revolt

The Wall Street Journal reports this weekend that a former Guantánamo detainee who worked for Osama bin Laden in Sudan in the 1990s, Sufyan Ben Qumu, and two Libyans who fought in Afghanistan against the Soviets, Abdel Hakim al-Hasady and Salah al-Barrani, are playing key roles in the ongoing uprising against dictator Col. Muammar Qaddafi (WSJ). An Algerian security official told Reuters on Apr. 4 that Al Qaeda in the Islamic Maghreb (AQIM) had taken delivery of advanced weapons seized from Libyan stocks, including SAM-7 surface-to-air missiles, prompting U.S. officials to question rebel leaders about the claims (Reuters, Reuters).

And in an important change, American officials are moving to withdraw their support from embattled Yemeni ruler Ali Abdullah Saleh, leaving the U.S. to plan for  future counterterrorism operations in Yemen without Saleh's government in Sana'a (CNN, NYT, CSM).  

Trials and Tribulations

  • Saudi Arabian state news on Apr. 2 gave the first detailed accounting of terrorism prosecutions in the country, announcing that 5,080 people had been convicted on terrorism in the country over an unclear period of time, and 11,527 detained (Reuters, The National).
  • A Brazilian newspaper reported this week that according to Brazilian and Western intelligence reports 21 men linked to al Qaeda and other terrorist organizations have used Brazil, which has no specific anti-terrorism laws, as a base to conduct fundraising and plan operations (Telegraph).
  • Bush administration officials reportedly visited Osama bin Laden's son Omar in Qatar in late 2008 to ask him to help them find his father, whose side he left months before the 9/11 attacks (Telegraph). The younger bin Laden refused, and said that he had had no contact with his father in 10 years.
  • A Jordanian man was arrested Apr. 4 after walking into the offices of a Muslim Brotherhood-linked opposition political party in Jordan with what later turned out to be a fake suicide belt, and demanded a meeting with the group's director (NYT).
  • Canadian authorities are investigating the mysterious case of a young Toronto woman of Somali descent who disappeared suddenly this year for Somalia, fueling speculation that she may have been recruited by the al Qaeda-linked militant group al-Shabaab (Globe and Mail, Toronto Star).
  • Irish and British leaders have roundly condemned the killing of a police constable Apr. 2, who died after a bomb exploded under his car in Omagh, Northern Ireland (BBC).
  • A former Syrian agent imprisoned in England for tricking his pregnant girlfriend into bringing a bomb on board an El Al plane in 1986 may soon be released on parole, though his sentence lasts until 2031 (Telegraph).

Mark Wilson/Getty Images

The LWOT

Important Indonesian terrorist arrested in Pakistan: The LWOT, March 29-April 1, 2011

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.

Pakistan arrests important Indonesian terrorist

Pakistani authorities reportedly acting on a tip from the CIA arrested Indonesian Umar Patek, a deputy commander in the al Qaeda-linked Jemaah Islamiyah (JI) militant group, earlier this year, shooting and wounding him in the process (BBC, AP, AP). Patek, who may be taken back to Indonesia by a delegation dispatched to identify and question him, helped found JI after spending time in al Qaeda camps in Afghanistan and Pakistan in the 1980s and 1990s, and is believed to have played a key role in the 2002 Bali bombing that killed 202 people, including seven Americans (AFP, NYT).

Indonesia's chief anti-terrorism official told Reuters this week that violence from radical Islamists is on the rise in Indonesia, while Al Jazeera has a special report on an Indonesian man's quest for answers about his brother, who conducted a suicide bombing against Jakarta's JW Marriott hotel in July 2009 (Reuters, AJE).  

Court reverses earlier decision in habeas appeal

In an important ruling, a U.S. federal appeals court on Mar. 29 overturned a lower court decision to grant habeas relief to Yemeni Guantánamo Bay detainee Uthman Abdul Rahim Mohammed Uthman, reinforcing earlier court rulings that allow the government to hold a detainee indefinitely based on circumstantial evidence of membership in al Qaeda (AP, ProPublica). Uthman was one of the detainees designated for indefinite detention by an Obama administration task force, and part of the original decision to free him was classified by the government (ProPublica). Benjamin Wittes notes at Lawfare Blog (Lawfare Blog):

[The decision] means that to prevail in a habeas case, the government does not need to produce direct evidence of anything. In the many cases-and there are many of them-in which there is little more than a suspicious pattern of travel and associations, it has merely to argue convincingly that those patterns are more likely to be the result of membership than they are of coincidence. Many fewer detainees will prevail under this understanding of the government's evidentiary burden than would prevail under one less tolerant of a mosaic of incriminating facts.

And according to documents released by the website WikiLeaks, the Bush administration in 2007 approached Costa Rica, The Dominican Republic, Panama and Mexico about providing "life saving" medical care to Guantánamo detainees, so that they would not have to be transported to the U.S. for treatment (McClatchy). The countries declined. 

Canadians arrest Somali man at airport on terrorism charges

The Royal Canadian Mounted Police (RCMP) arrested 25-year old Mohammed Hersi at Toronto's Pearson Airport on Mar. 30 as he was about to board a flight to Egypt, a flight authorities say was the first leg in a journey to join the al Qaeda-linked militant group al-Shabaab in Somalia (National Post, BBC, Reuters). The arrest of Hersi, a 2009 graduate of the University of Toronto, sparked fresh concern in Canada about possible radicalization and recruitment efforts among the country's Somalis, six of whom are believed to have left Canada to fight for al-Shabaab in 2009 (Globe and Mail, Toronto Star). Authorities reportedly had been investigating Hersi since Oct. 2010, after his employer became concerned about his possible radical beliefs and website visits (National Post).

"Flicker" of al Qaeda and others amongst Libyan rebels

Testifying before congress this week, NATO's supreme allied commander in Europe, U.S. Admiral James Stavridis, said that U.S. intelligence had detected "flickers" of al Qaeda and the Lebanese group Hezbollah amongst Libya's rebels, but said that most of the rebel leadership were "responsible men and women" (WSJ, CNN, Washington Post). The statement came amidst continued questioning over whether or not Al Qaeda in the Islamic Maghreb (AQIM) had been able to seize surface-to-air missiles from Libyan stocks, and after NATO publicly said it would not arm the rebels (CNN,WSJ, NYT). And Libya's foreign minister Moussa Koussa defected and fled to England Mar. 31, meaning British and Scottish authorities may receive more concrete information about Libyan dictator Col. Muammar Qaddafi's role in the 1988 Pan Am 103 bombing over Lockerbie, Scotland, that killed 270 people (Guardian, Telegraph).

Also this week Al Qaeda in the Arabian Peninsula (AQAP) released the fifth edition of its glossy English-language magazine "Inspire," which featured a lengthy essay from radical American cleric Anwar al-Awlaki pushing back on the arguments of many terrorism analysts that al Qaeda was irrelevant in the uprisings in the Middle East (Guardian, NYT). New America Foundation National Security Studies Program director Peter Bergen, who was singled out for invective by Awlaki, responded to Awlaki's challenge in a CNN piece on Mar. 31 (CNN).

9/11 Commission chairs say U.S. not prepared

Testifying before the Senate Homeland Security Committee on Mar. 30, the chairs of the 9/11 Commission, former Rep. Lee Hamilton (D-IN) and former New Jersey governor Thomas Kean said that nearly 10 years after 9/11 federal agencies had made uneven progress, and key recommendations of the 9/11 Commission remained unfulfilled (VOA, Bloomberg, McClatchy).

The chair and ranking member of that committee, Sens. Joseph Lieberman (I-CT) and Olympia Snowe (R-ME) this week wrote to U.S. Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano inquiring about federal guidelines for counterterrorism trainers, and expressed concern about "improper training" from individuals spreading misleading, false or racist ideas about Islam and terrorism (Washington Times).

Trials and Tribulations

  • The outgoing deputy commanding general of Ft. Hood this week granted a motion filed by the lawyer for Maj. Nidal Malik Hasan, charged with killing 13 people at the base in Nov. 2009, to delay further proceedings in the case until late April, when a new base commander takes over (AP).
  • South African counterterrorism authorities this week arrested a former member of a white supremacist group on weapons charges, seizing several guns and hundreds of rounds of ammunition from his house (AP). Authorities said they may also charge the man with terrorism offenses.
  • British authorities announced on Mar. 30 that they had arrested a London man in connection with a fake package bomb that was smuggled onto a United Parcel Service plane bound for Turkey (AP).
  • Syrian president Bashar al-Assad, responding to recent protests that have shaken the country, has indicated through the Syrian state news organization that he will replace Syria's emergency law, in place for nearly 50 years, with a new anti-terrorism law (National Post).
  • Italian anarchists are believed to be responsible for three mail bombs that exploded or were discovered on Mar. 31 in Italy, Switzerland and Greece (NYT).
  • The FBI is currently investigating a series of letters bearing a Chicago postmark and written by someone claiming to be Osama bin Laden, who wrote that al Qaeda had hidden and was ready to detonate 160 nuclear bombs around the United States (UPI).

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