Gitmo Guilty Plea Is A Sad Day for U.S. Rule of Law

This morning I sat in a U.S. military commissions courtroom in Guantanamo Bay, Cuba, and watched the first child soldier charged by a Western nation since World War II plead guilty to crimes he was never even accused of. If the guilty plea of Omar Khadr this morning was a face-saving effort by the U.S. government, it was a sad day for the rule of law in the United States.

Omar Khadr is the 24-year-old Canadian who's spent a third of his life in U.S. custody without trial after being accused of helping his father's al Qaeda associates build improvised explosive devices when he was just 15. He was taken to Afghanistan from Canada by his father at the age of nine. The lone survivor of a 2002 U.S. assault on an Afghan compound, Khadr was accused of throwing a grenade that killed a U.S. soldier.

But as he entered his guilty plea this morning -- after the government agreed he'd serve just one more year at Guantanamo Bay, and an as-yet-unspecified number of years in Canada -- it was clear that prosecutors had taken the opportunity to throw the kitchen-sink-full of charges at him - including far more crimes than he'd even been charged with. Most importantly, Khadr pled guilty to the murder of two Afghan soldiers who accompanied U.S. forces in the 2002 assault on the compound. The government has never presented any evidence whatsoever that Khadr was responsible for that.

That Khadr pled to this and the range of other charges that the government first unveiled today (details will not be available until the military commissions publicly release the stipulation signed by Khadr tomorrow) is hardly surprising. Ever since Judge Patrick Parrish ruled that Khadr's statements made to interrogators after he was threatened with gang-rape, coerced and possibly tortured were admissible, his defense was sure to be challenging. Although the government did not appear to have any forensic or eyewitness testimony to support its murder charge, government interrogators planned to testify that Khadr had willingly told them that he threw the grenade that killed Sergeant First Class Christopher Speer. Whether he said that because it was true, or because he was a scared and wounded 15-year-old expecting a quick release for telling his interrogators what they wanted to hear, we'll never know. (Khadr was shot multiple times and severely wounded in the firefight, which left him blind in one eye; he still has shrapnel in the other.)

Khadr's sentencing hearing begins tomorrow. Although the plea agreement contains a recommended sentence (news reports have said it's 8 years total) that deal will remain secret until the military commission sworn to act as a jury in this case issues its own sentence based on live testimony. The government will present witnesses to describe the effects of improvised explosive devices, and the testimony of Sergeant Speer's widow about her loss. Khadr's lawyers will put forth psychological and psychiatric experts to talk about the impacts of torture on him and likely about the ability of a 15-year-old youth to appreciate the wrongfulness of his acts, particularly when they were directed by the adults around him.

But all of this is hardly a vindication of the U.S. military commission system. After the plea was entered this morning, chief prosecutor Captain John Murphy told reporters that Khadr "stands convicted of being a murderer and also being an Al Qaeda terrorist" based on "his own words."

To be sure, Judge Parrish took pains today to ask Khadr if he was entering his guilty plea knowingly, and fully understanding the consequences. Khadr nodded and quietly answered "yes." But in truth, he had little choice. If Khadr had gone to trial, he faced a potential life sentence from a military jury, who would hear how he "confessed" to the crimes in interrogation. He could have faced many more years in prison. What's more, the U.S. maintains the right to indefinitely detain him even if he was found not guilty. Ironically, all but one of the other four detainees found guilty in military commissions have gone home, while dozens of remaining Guantanamo detainees who have never been charged with a crime continue to languish.

For Khadr, then, today's guilty plea was probably the right choice. His Canadian lawyers are likely to challenge his sentence as unlawful as soon as he's transferred to Canada. (The "diplomatic notes" reached between the U.S. and Canadian governments that will likely allow his transfer after a year in U.S. custody are still secret but will be released with the plea agreement after the commission members recommend their sentence.)

For the U.S. government, the guilty plea was a way to save face. After all, the Obama administration knew that it was a political embarrassment for its first military commission trial to be of a child soldier - a contradiction of its obligations under international law to rehabilitate child soldiers rather than punish them. The administration also knew that the charges against Khadr were all legally dubious - invalid under international law and a violation of the ex post facto clause of the U.S. Constitution. Khadr's guilty plea allows them to rack up another "win" for the military commissions, pushing the total to a whopping five convictions in the last eight years. By contrast, U.S. civilian federal courts have convicted more than 400 terrorists in that same time period. This doesn't exactly tip the balance.

Still, no matter how you look at it, this plea makes a troubling statement about the United States' respect for the rule of law. Although as part of his plea agreement Omar Khadr has waived his right to appeal his conviction or to sue the United States for his confinement or treatment, a dark cloud continues to shadow this case. That cloud will continue to conceal the truth about Omar Khadr's treatment at the hands of his U.S. interrogators; and it will ensure that the validity of his conviction, and the integrity of the military commissions themselves, remain in doubt.



Former Gitmo Prisoner's Trial Continues, as Child Soldier's is Postponed

As the trial of a former Guantanamo detainee proceeded peacefully in a New York courtroom today, U.S. military prosecutors in Cuba werereportedly scrambling to get Omar Khadr, the alleged child soldier on trial for war crimes at Gitmo, to plead guilty to murder. Plea negotiations are reportedly ongoing and his trial, set to resume Monday, has been postponed for a week.

In New York, the government is finally presenting its evidence against Ahmed Khalfan Ghailani, the first former Gitmo prisoner to be transferred to the U.S. for trial.

On Thursday morning, an FBI agent testified about the exhaustive investigation done at the crime scene after the 1998 US embassy bombings in Kenya and Tanzania -- just the sort of complex investigation that FBI agents are trained to do. Having arrived in Tanzania within 24 hours of the bombing, FBI agents secured the crime scene and analyzed and preserved 661 pieces of evidence. Some of that led to the discovery of pieces of the white Nissan truck that had been turned into a bomb, and to its string of former owners.

Unfortunately for the government, though, a broker for the sale of the truck on Thursday afternoon proceeded to contradict everything he'd told the FBI 12 years ago.

Some of the problems in the Ghailani trial are predictable, given that the government imprisoned Ghailani for six years without trial after capturing him in Pakistan in 2004. Because he was interrogated using "enhanced interrogation techniques" and possibly torture in a CIA black site, none of the evidence obtained there is reliable or admissible. And because the government still didn't put him on trial for four years after transferring him to Guantanamo, witnesses may now have a hard time remembering what they told the FBI when it investigated the bombings more than a decade ago. The investigation led to the conviction of four other men in 2001. All are serving life in prison.

What will happen in Ghailani's case remains unclear. As I pointed out earlier, the defense isn't contesting many of the facts the government is now presenting. Yesterday, for example, we heard a whole day of testimony from victims of the bombing -- horrifying stories of being buried under the rubble and finding severed limbs of colleagues and loved ones. Ghailani's lawyers aren't disputing that any of that happened, and conducted hardly any witness cross-examination.

But when it comes to proving that the diminutive Ghailani (friends called him Foupi, meaning "the little one" in Swahili), actually intended to participate in the bombing plot, that's where the government may have a harder time. Though we've already heard testimony that Ghailani, who was around 22 at the time, was at least with one of the people who purchased the truck, the government has yet to present any direct evidence that Ghailani knew what it was being used for. The prosecution's case will likely depend on arguing that Ghailani should have known, based on the circumstances. Given that the trial is expected to last for up to four months, the government will have plenty of opportunity to present its evidence.

Meanwhile, back at Guantanamo Bay, Omar Khadr, the "child soldier" on trial for allegedly throwing a grenade that killed a U.S. soldier, is reportedly considering pleading guilty and serving one more year at Gitmo, then returning to Canada to serve more time there. Whether he'll agree to plead guilty to crimes that don't really exist remains to be seen. (As I've explained before, none of the crimes he's charged with are actually war crimes that belong in a military commission.)

In addition to the legal flaws in the government's case, there's the problem that the military appears to have no forensic evidence demonstrating that Khadr actually committed the crimes he's accused of. That's in part because, unlike the FBI, military investigators don't carefully gather and preserve evidence at a crime scene, making a subsequent prosecution much more difficult. For all these reasons -- in addition to Khadr's likely anger and bewilderment at having been imprisoned by the U.S. for a third of his life without trial -- the 24-year-old Canadian may now have less incentive to cooperate.

Even if Khadr does plead guilty, the legitimacy of that conviction, and of the entire military commissions process, will remain in doubt.



Former Gitmo Prisoner's Case Comes Down to What He Knew and When He Knew It


Lawyers made opening statements Tuesday as the trial began in earnest for the first former Guantanamo detainee transferred to U.S. soil. While the government portrayed the slight, baby-faced 36-year-old as a vicious al Qaeda murderer who helped plan two US embassy bombings that killed 224 people, the defense told a very different story. Although not contesting much of the evidence the government plans to present --- about the bombings themselves, its destructiveness and their innocent victims -- defense lawyers argue that Ahmed Khalfan Ghailani was a hapless young Tanzanian duped into helping his powerful childhood friends who, unbeknownst to him, were al Qaeda killers.

What's most surprising about the case is that, based on the government's opening arguments, it's not clear whether prosecutors have any direct evidence establishing that Ghailani intended to hurt anyone, or even knew that the items he purchased in Tanzania were going to be used as a bomb. That knowledge is a critical element of the charges against him -- particularly the multiple murder charges.

There's more...

Critics of Ghailani Trial Have Little Faith in U.S. Law

On Wednesday, to the surprise of some spectators in the courtroom, a U.S. federal judge did the right thing: he followed the law.

Judge Lewis Kaplan had a clear choice before him: he could exclude the testimony of a government witness discovered via abusive CIA interrogation of Ahmed Khalfan Ghailani, or he could allow the government to introduce that testimony, in blatant violation of U.S. law. Ghailani, transferred from Guantanamo Bay to New York last year, is now on trial for allegedly assisting in the 1998 bombings of two U.S. embassies in East Africa.

In a U.S. federal court, testimony derived from a coercive interrogation is not admissible. A similar rule applies in the military commissions at Guantanamo Bay. Although judges there have more leeway, most military judges are equally principled and take the ban seriously. Torture-derived evidence is inadmissible for two reasons: to prevent U.S. authorities from engaging in torture, and because such evidence is inherently unreliable. International treaties similarly ban its use.

The government knew, of course, that this would be a problem, and it surely has plenty of other evidence against Ghailani or it wouldn't have transferred him to civilian court in the first place. After Judge Kaplan's ruling, Attorney General Eric Holder expressed his continued confidence in the case. Notably, four of his alleged co-conspirators in the bombings were tried and sentenced to life in prison back in 2001 - without the use of this particular government witness. Evidence introduced in that trial pointed to Ghailani as well.

Still, since Wednesday, commentators such as Liz Cheney and Jack Goldsmith have seized on Judge Kaplan's ruling to lament not the fact that Ghailani was thrown in a CIA black site for two years and likely tortured (the government refuses to address Ghailani's treatment in this trial but concedes he was "coerced"), but the fact that the judge has excluded the evidence that his interrogators squeezed out of him - or to claim the administration should never have given Ghailani a trial at all.

"If the American people needed any further proof that this Administration's policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today," announced Cheney after the ruling. Goldsmith, the Harvard Professor and former head of the Office of Legal Counsel Under President Bush, now writing on the new Lawfare blog, wonders "why the government is bothering to try Ghailani." Why not simply imprison him indefinitely?

Coming from Goldsmith, this is particularly disappointing. When he was at OLC, he had the courage to criticize his colleagues John Yoo and Jay Bybee for their twisted legal analysis that allowed them to institutionalize torture as U.S. policy. Now, rather than recalling that error as the source of the problem in Ghailani's trial today, he's criticizing the Obama administration for applying the rule of law at all.

Technically, Goldsmith may be right: the administration could just declare Ghailani an al Qaeda member and ongoing threat and hold him in military detention forever. That's the unfortunate consequence of the "war against al Qaeda, the Taliban and associated forces," which has no logical end. But as a matter of principle and policy, imprisoning people indefinitely without trial would be a disgrace, along the lines of what Goldsmith's colleagues at OLC sanctioned.

If there's anything the United States stands for -- or used to stand for -- it's that we don't throw people in prison without proof they've done something wrong.

Principle aside, it's just bad strategy. As General Petraeus has acknowledged, winning the war against al Qaeda and the Taliban is as much about winning over the local populations where they live as it is about U.S. military prowess. Throwing Muslims in prison for decades without charge or trial is hardly a good strategy. If, as national security experts tell us, al Qaeda's strategy is to present the U.S. war against terror as a war against Islam, indefinite detention of suspected Islamic insurgents without trial hands al Qaeda its most effective propaganda campaign on a silver platter.

Cheney and Goldsmith may be right that excluding a witness derived by torture will make the government's case against Ghailani more difficult. But in the end, a fair trial for a suspected terrorist in a respected federal court will do far more to defeat al Qaeda and its associates -- and to bolster the image of the United States in the world -- than will foregoing justice altogether.



With Times Square Bomber Sentenced to Life, Ghailani Trial Gets Started

In the wake of the life sentence of Times Square bombing plotter Faisal Shahzad, the trial of the first former Guantánamo Bay detainee to be tried in a civilian U.S. federal court will finally get underway on Wednesday. Ahmed Khalfan Ghailani, a Tanzanian who's been in U.S. custody since 2004, is accused of assisting the 1998 bombings of U.S. embassies in East Africa that killed 224 people and wounded hundreds more. Originally scheduled for opening statements on Monday, the trial was delayed at the government's request so the judge can rule on a critical question: can the government introduce at trial a witness it first learned about during abusive CIA interrogations?

Defense lawyers argue that the witness, Hussein Abebe, who the government says supplied Ghailani with explosives used to bomb the U.S. embassy in Tanzania in 1998, should be barred from the case because his identity is the fruit of the government's abuse. Prosecutors counter that the witness will testify voluntarily, and is only remotely linked to Ghailani's mistreatment. (Although evidence of Ghailani's treatment in CIA custody is largely classified and therefore filed under seal, nobody seems to be denying that Ghailani was subjected to the Bush administration's "enhanced interrogation techniques" in a secret CIA prison.)

At a hearing last month, federal district court Judge Lewis Kaplan, presiding over the case in lower Manhattan, questioned the government's claim that Abebe, who prosecutors call "a giant witness for the government," was testifying voluntarily.  He's expected to rule on this issue by Wednesday.  That ruling could signal how federal judges might decide these sorts of questions in the future – and whether the government will give more civilian judges the opportunity to consider them.

About 35 detainees now being held at Guantánamo Bay are slated for trial, but the government hasn't said how many it plans to bring to civilian courts on U.S. soil, and how many it will try in military commissions set up at the Guantánamo prison complex.

Since September 11, civilian federal courts have convicted more than 400 people on terrorism-related charges. Many, like Shahzad, are now serving life sentences. Military commissions, meanwhile, have convicted only four. And two of those have already been freed. That's in part because since their creation, the military commissions have been struggling to interpret the new Military Commissions Act, first passed in 2006 and amended last year, and the accompanying rulebook issued just this past Spring. International lawyers and constitutional scholars say the law has substantial legal problems that would put most post-trial convictions at risk of appeal.

Judge Kaplan's rulings in the Ghailani case so far reflect the careful way most civilian federal judges handle these cases using established law. In detailed legal opinions, the judge has so far refused to dismiss the case, rejecting strong arguments from Ghailani's lawyers that the government violated his right to a speedy trial by waiting six years to prosecute him (he was captured in 2004), and that his abuse in CIA custody should lead to his acquittal.

To their credit, prosecutors are not relying on statements Ghailani made in custody – presumably concerned that they would be considered the products of coercive interrogations and therefore inadmissible. With four other men already convicted and serving life in prison for their roles in the bombings, the government apparently believes it has enough evidence against Ghailani without his statements.

Still, the alleged torture of Ghailani in a secret CIA prison hangs heavy over this case – as it will every other one where detainees were subjected to the so-called "enhanced interrogation techniques" that included sleep deprivation, exposure to extreme temperatures, stress positions, confinement in a box and in some cases, waterboarding.

The Ghailani case is also being closely watched for any local reaction it provokes. Last year, Liz Cheney and her advocacy group Keep America Safe rallied in downtown Manhattan to protest the administration's decision to hold the trials of the alleged September 11 plotters in a New York federal court. Obama critics such as Debra Burlingame warned that "part of Jihad is tying up lower Manhattan"; Karl Rove called holding trials there "an utter, unmitigated disaster for the security of the United States."

So far, though, the New York Policy Department has said it hasn't had to take any extraordinary security measures for the first former Gitmo detainee's trial. Having been inside the courthouse for jury selection, I didn't notice any difference in security, either. Meanwhile, as my colleagues discovered the other day when they interviewed New Yorkers heading to work downtown, most locals don't even know the trial is happening. Watch reactions in the video below:

First Guantanamo Trial in New York City: So Not Scary

The first trial of a former Guantanamo detainee in a U.S. federal court began in New York City this week. With jury selection completed, opening arguments will begin Monday for Ahmed Khalfan Ghailani.

I went to the jury questioning and it was just another day at court, with a second terrorism trial happening next door. Outside the courthouse, there were no protests or demonstrations along the lines of what was staged by groups like Liz Cheney's Keep America Safe last December after the Obama administration announced it would try the September 11 co-conspirators in a New York federal court. In fact, Cheney and Co. were bizarrely quiet about this trial.

Human Rights First staff interviewed New Yorkers on the street in front of the courthouse while proceedings began. The overwhelming response was nonchalance, or confidence. Far from the nightmare scenarios predicted by those who oppose civilian trials for the 9/11 defendants. Watch the video released yesterday:

If you didn't already know the trial was going on, you'd never know that anything was different at all in the Southern District of New York courthouse and in the immediate vicinity. Sure, security was tight, but it always is. Observers had to pass through the usual metal detectors and check in their cell phones. It was business as usual.

In fact, although most New Yorkers don't realize it, there are now two major terrorism trials going on in the downtown Manhattan courthouse. In addition to Ghailani's, there's the case of four men charged with planting what they thought were bombs outside two Bronx synagogues, and planning to fire missiles at military planes. That trial, which hinges on the role of a government informant, has been going on for five weeks now without any safety incidents.

As this trial gets underway, you have to wonder what all the fuss was about. Civilian courts have convicted 400 terrorists since 9/11. Military commissions, 4. The trial itself has caused no disruption in lower Manhattan and is running smoothly.

I will be headed to Guantánamo later this month to witness the military commissions trial of Omar Khadr. Instead of taking the subway to the proceedings, I'll be flown down and escorted by U.S. government officials to a facility that has cost hundreds of millions of dollars to build and an additional $125 million every year to maintain. This doesn't seem to add up.



Alleged Al Qaeda Terrorist Trial Begins This Week in NYC Courtroom

When Ahmed Khalfan Ghailani was first transferred to New York from Guantanamo Bay last year, House Republican leader John Boehner of Ohio called it "the first step in the Democrats' plan to import terrorists into America."

More than a year later, Ghailani remains the only detainee from Guantanamo Bay to be brought to the United States. He's scheduled to go on trial starting this week in lower Manhattan. Jury selection begins Monday.

Ghailani is a Tanzanian accused of helping to bomb two U.S. embassies in East Africa in 1998 that killed 224 people. Like the September 11, 2001 attacks, those bombings have been attributed to Osama bin Laden.

In hundreds of legal charges filed with the federal court in New York, Ghailani is accused of having scouted out the American embassy in Tanzania before it was bombed, assembled bomb materials and escorted the suicide bomber to the site. After the bombings, prosecutors say he fled to Afghanistan and rose up the ranks of al Qaeda, forging documents for the group and working as a cook and a bodyguard for Osama bin Laden.

When he was captured in Pakistan in 2004, U.S. authorities deemed Ghailani a "high-value" detainee and sent him to a secret CIA prison for interrogation, where Ghailani claims he was tortured. Indeed, a variety of so-called "enhanced interrogation techniques," including waterboarding, were authorized for use by CIA interrogators on high-value detainees.

Ghailani was transferred to Guantanamo Bay in 2006. Last year, more than ten years after the embassy bombings, he was transferred to the New York prison. The same prison has safely held such notorious criminals as John Gotti and the blind terror leader Sheik Omar Abdel-Rahman.

Critics of Ghailani's transfer warned that his prosecution could be derailed by his abuse in prison and the long delay in bringing him to trial. But the federal judge hearing the case, Judge Lewis A. Kaplan, has denied the defense lawyers' requests to dismiss the trial on those grounds.

Last week, former New York mayor Rudy Giuliani insisted that it would be safer to try Ghailani in a military commission in Guantanamo Bay than in New York City.

Ghailani has already appeared in court for pretrial hearings, however, without incident. New York City police have said that while they will provide some extra security for the trial, the proceedingswill not require any of the elaborate and costly measures that New York City officials had warned would be necessary for a trial of the 9/11 plotters. After receiving complaints from local business groups about the potential disruption that trial might cause, Police Commissioner Ray Kelly announced that he would take a range of extraordinary security measures, including a flood of uniformed police officers, checkpoints and thousands of interlocking metal barriers. Mayor Bloomberg estimated the cost at $200 million a year, and the Obama administration soon backed away from the plan.

Despite the huge costs and inconvenience predicted for the 9-11 plotters' trial, no such estimates have been made for the trials of any of those accused of carrying out al Qaeda's U.S. embassy bombing attacks.

Four other men have already been tried and convicted in the same New York courthouse for their roles in the U.S. embassy attacks. All were sentenced to life in prison without parole.



Graham Bill Plays Right Into al Qaeda's Hands

By Daphne Eviatar, Senior Associate, Law and Security.

Addressing the current threat from al Qaeda at a recent forum in New York, the Deputy Special Assistant to President Bush and former Deputy National Security Advisor for Combating Terrorism warned that the United States' military reaction to the threat of terrorism is backfiring.

"We're in desperate need of disciplining our response," said Juan Zarate, speaking on a panel last week at New York University Law School's Center for Law and Security. "We have to have a sense of resilience. Every attack can't create a maximal response, because it feeds the enemy."

Too bad Senator Lindsey Graham of South Carolina wasn't there to hear him.

In Washington a week later, Graham was telling an audience at the American Enterprise Institute just the opposite. The U.S. needs to step up its military response to terrorism at home and abroad, he said. "The enemy has declared war on the United States. The question is, are we going to declare war on them?"

Graham lamented that the U.S. has given up its use of "enhanced interrogation techniques." And he vowed to introduce legislation that would ensure that suspected terrorists arrested in the United States don't get the same rights to defend themselves as do other suspects in the criminal justice system - such as mass murderers and rapists.

"This is not crime we are fighting," he said on the Senate floor later that day. "We are fighting a war."

In Graham's view, treating al Qaeda and Taliban sympathizers as criminals instead of warriors makes us weaker.

On its face, Graham's logic has a certain appeal. But national security experts increasingly warn that militarizing all aspects of the "war on terror" actually plays into the hands of al Qaeda and hurts, rather than helps, U.S. counter-terrorism efforts.

Senator Graham is now pushing legislation in Congress that would significantly expand the scope of the U.S. "war on terror." Among other things, he would require the U.S. to treat a suspected al Qaeda affiliate, whether arrested within the United States or abroad, as a war criminal who can be interrogated without Miranda rights and detained indefinitely without trial. A U.S. court later reviewing the detention could presume the imprisonment was lawful based on certain minimal evidence -- such as attendance at a Taliban or al Qaeda-affiliated training camp, even if decades earlier.

That sort of stark reaction to sporadic terror attacks is exactly what al Qaeda wants. According to Zarate, now a senior advisor to the Center for Strategic and International Studies, al Qaeda is intentionally goading the U.S. into overreacting to the terrorist threat; it can then recruit new members by characterizing the United States as fighting a world-wide war against Islam.

Al Qaeda wins even if its terrorist attacks fail, so long as it sees the U.S. reacting with alarm - allowing itself to be "terrorized."

Thus the failed Christmas Day bombing on a plane to Detroit last year, and the botched attempt to blow up a car in Times Square last Spring, were victories for al Qaeda because they sparked hysteria in the U.S., says Zarate -- mostly in the form of new bills in Congress, from Senator Graham and others, to deny suspected terrorists basic rights.

Another al Qaeda tactic is to entice the U.S. into over-committing itself militarily around the world. "They're baiting the U.S. into a regional quagmire," said Zarate, referring to the increasing drone warfare in Pakistan, Yemen and Somalia.

Similarly, al Qaeda wants to "economically bleed" the United States by taunting it into an endless global war, he said. In al Qaeda's view, that's the best way to bring down a superpower -- particularly during a recession.

For all of these reasons, it's important not to over-react to the terrorist threat. Making what should be a law enforcement matter into a military one, as Senator Graham and some other lawmakers are advocating, does just that. It's worth noting that the U.N. Security Council, in its reaction to the September 11 attacks, obliged member states to "criminalize" terrorist attacks - not to declare war on terrorists.

If the sort of tactics Graham is proposing were actually necessary to fighting terrorism, they might be worth the risk of aggrandizing al Qaeda. But they're not. There's no evidence that reading defendants their Miranda rights, for example, keeps them from cooperating with law enforcement and providing valuable information; on the contrary, studies show they're more likely to cooperate if told they have rights. Locking the wrong people up indefinitely hasn't helped either: although the Bush administration imprisoned more than 700 people at Guantanamo Bay, the terrorist threat has only expanded around the world. Military trials for terrorists have been a dismal failure as well: military commissions have convicted only four terrorists so far, while civilian federal courts have convicted more than 400 since September 11.

Lawmakers should keep this in mind when considering legislation that would militarize our response to terrorism and sideline the role of law enforcement. Other proposed bills would forbid the transfer of Guantanamo detainees to the United States for trial or even to their home countries and strip terrorist suspects of their U.S. citizenship. These are just the sort of over-reactions that President Bush's terrorism advisor now warns against.

Unfortunately, such over-reactions also feed growing anti-Muslim sentiment within the U.S. "The grand success for bin Laden would be to see emerging in the U.S. a division between Muslim communities and the rest of the United States," observed Zarate last week.

As Fareed Zakaria wrote recently in the Washington Post, "Bin Laden knew he could never weaken America directly, even if he blew up a dozen buildings or ships. But he could provoke an overreaction by which America weakened itself."

Congress should be careful not to give him that satisfaction.

Ghailani Trial Showcases NYC is Safe for Terrorist Trials

Most people don't even realize it, but an alleged al Qaeda terrorist - deemed among the most dangerous terrorists in US custody by US counterterrorism officials - has been quietly appearing in a U.S. federal court in downtown Manhattan for pretrial hearings for weeks now.  His trial is scheduled to start there next week.  And as the Wall Street Journal notes today, the NYPD - who are the national experts on counterterrorism security - don't see any need for extra funds to buttress their normal security procedures.

That's a far cry from the $200 million the police department said last year it would need to secure the trial of some other alleged al Qaeda operatives:  Khalid Sheikh Mohammed and his co-conspirators in the 9/11 attack.

Ahmed Khalfan Ghailani is being tried for his role in an earlier al Qaeda terrorist attack on U.S. interests: the bombings of two U.S. embassies in Africa in 1998. He was considered so important to al Qaeda that after he was captured in Pakistan in 2004, he was subjected to so-called "enhanced interrogation techniques" in CIA "black sites" while interrogators pumped him for information. He was only transferred from the Guantanamo Bay prison camp to a New York prison for civilian trial last year.

Critics of the Obama administration's decision to use civilian trials for alleged terrorists claim, among other things, that trial and imprisonment in the United States pose a major security threat. But according to Devlin Barrett and Sean Gardiner in today's Journal:

The New York Police Department plans some behind-the-scenes security adjustments for Mr. Ghailani's trial, but there will be no street closures or extra officers assigned to security outside the courthouse.

For anyone who actually lives in New York and knows what the downtown courthouse area is like, that makes perfect sense. Ever since the September 11 terrorist attacks, the NYPD has stepped up its patrols and security in the area. There are now concrete barriers around all federal buildings that make it impossible for someone to drive a bomb up anywhere near them. Security entering the courthouse has always been tight, which makes sense, given that the Manhattan courthouse has long been the primary location for terrorist trials.

The problem with the plan to try KSM and his alleged associated there wasn't that New York City lacked sufficient security; it was that political opponents of the Obama Administration turned the trial into a political tool they could use to undermine the administration. And once opponents like Liz Cheney whipped some locals up into a frenzy about the need to close streets and add security, downtown businesses got scared about how that all might affect their bottom line.

The truth is, as the Ghailani trial demonstrates, that the NYPD and federal prison guards are fully capable of securing the massive stone courthouse and adjacent high-security prison that's long housed suspected terrorists safely.  We neither need to shut down the city nor spend another $200 million to accomplish that.



3 Years After Blackwater Massacre in Iraq, Contractors Still Lack Accountability and Oversight

Coauthored by Melina Milazzo

On September 16, 2007, Blackwater Worldwide (now Xe) private security contractors working for the U.S. Department of State shot dead 17 unarmed civilians and wounded 24 more in an unprovoked incident in Baghdad’s Nisoor Square. Amid the political firestorm that ensued, one thing became crystal clear: the United States lacked a coordinated, systematic policy for overseeing private contractors abroad and holding them accountable for serious violent crimes.

Three years later, we’ve seen some progress in U.S. law and policy. Congress has required greater agency oversight and coordination over contractors in Iraq and Afghanistan, and established a means of investigating and reviewing incidents of violence by private security contractors abroad.

But serious gaps in oversight and accountability continue, especially when it comes to holding contractors accountable for serious violent crimes like the ones that took place in Baghdad three years ago. And the U.S. has never created a mechanism for compensating the victims of private security contractors’ crimes.

In a report issued today, Human Rights First provides a snapshot of the legal and regulatory progress made since the Nisoor Square shooting, and identifies key areas where we still need major improvement.

When it came to holding the Blackwater contractors accountable, the Bush administration claimed that the U.S. government had no authority to prosecute private security contractors working for the State Department, as the Blackwater guards were. Although the Obama administration takes a different view, the issue has never been resolved by Congress or the courts.

To date, it remains unclear whether the U.S. government can prosecute contractors who work for any agencies other than the Department of Defense for serious crimes committed abroad. And it’s not clear that the Status of Forces Agreement between Iraq and the United States even allows the Iraqi government to prosecute all private security contractors in its own country for serious crimes committed there.

The Civilian Extraterritorial Jurisdiction Act, or CEJA, currently in both chambers of Congress, would clarif y and expand U.S. criminal jurisdiction over all private contractors working for the U.S. government abroad . The U.S. government also needs to review its agreements with Iraq and Afghanistan and ensure that local law in those countries adequately extends to civilian contractors, so that serious crimes committed do not go unpunished.

The problem isn’t only with prosecuting violent crimes, however. U.S. government agencies don’t even track how many contractors and subcontractors work for them abroad. And the U.S. government still lacks sufficient staff within agencies that rely on private contractors abroad to keep track of contractors’ work and ensure they’re obeying the law. In Iraq, a Special Inspector General for Iraq Reconstruction found that the Defense and State Departments still need to improve their investigations of serious incidents. And in Afghanistan, private security contractors for the State Department are not even required to report serious incidents (such as attacks, injuries, and death) involving contractors to the government.

Despite the troubling lack of oversight, the United States is dramatically increasing its reliance on private security contractors. With the U.S. drawdown in Iraq, the Department of State plans to more than double the number of private security contractors it employs, from 2,700 to 7,000. And an additional 50,000 contractors are expected to be needed to support the Afghan surge. Meanwhile, the jurisdictional gap over non-Defense contractors widens.

“We cannot win a fight for hearts and minds when we outsource critical missions to unaccountable contractors,” said Barack Obama, then a U.S. Senator, shortly after the Nisoor Square shootings. President Obama was right then. The U.S. has both a moral responsibility and a national security interest in ensuring that the contractors it fields abroad operate in an effective, safe and law-abiding manner.


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