Omar Khadr Hearing: Second Update, April 28, 2010

Opening statements today in the suppression hearing in the Khadr case lay out how both sides plan to argue the motion, which aims to stop the government from using any confessions by Omar Khadr to any of the crimes alleged.

The defense will argue that all statements made by Omar Khadr, who claims he was abused and coerced during interrogations, should be suppressed because his statements were the product of that abuse and coercion and are inherently unreliable. Coerced statements and those that were the product of cruel, inhuman and degrading treatment are generally not admissible in the military commissions. Neither is evidence derived from those statements, according to the new military commission rules issued on Wednesday.

The government, however, will claim that none of Khadr's statements were coerced, that he was always treated humanely, and that therefore none of his statements should be suppressed.

Testimony presented in the next two weeks will reveal who has the better argument.

But several issues remain problematic - including that the defense team says it's only been allowed to interview three of more than 30 interrogators who interrogated Khadr in Bagram and Gitmo. Still, it's found two investigators who admitted Khadr was threatened with rape during an interrogation. A medical expert will testify that Khadr was denied necessary medical treatment during interrogations after he was seriously wounded in a firefight with U.S. forces. And a psychologist will testify that none of his statements, made as a 15-year-old who'd suffered massive injuries and then abuse at the hands of his captors, can be considered reliable.

I've previously described the abuse he claims he was subjected to, which includes sleep deprivation, denial of pain medication, stress positions, being forced to urinate on himself and being used as a human mop, being terrorized by barking dogs, and being threatened with rape and torture.

The government began making its case this morning by calling to the stand an FBI agent who interrogated Khadr at Bagram, after he'd been questioned by military and/or CIA agents. The CIA agent, Robert Fuller, testified that he treated Khadr very well, brought him water and snacks, and that Khadr "appeared happy - as happy as he could be." Khadr never complained to him of abuse, Fuller says.

Tomorrow we'll likely hear the cross-examination. But sure to come up is the fact that this same CIA agent elicited from Khadr the identification of another Canadian, Maher Arar, who Khadr during interviews by Fuller claimed was training with al Qaeda operatives at a training camp at a time that, it later turned out, Arar was actually at home in Canada.

Shortly after Fuller reported the identification of Arar to the government, Arar was apprehended at JFK airport and rendered to Syria for interrogation there. He claims, and the Canadian government has confirmed, that he was tortured there. Although the Canadian government paid Arar $10 million for its role in his rendition, the U.S. government has refused to allow Arar to enter the United States, and a federal judge dismissed his lawsuit against U.S. officials on the ground that, among other things, they're immune from suit.

The import of all this for Khadr's purposes is simply that the information Khadr provided to Fuller about Arar turned out to be completely false. That doesn't bode well for the government's claim that Khadr's statements to Fuller were credible. Fuller this morning testified that Khadr admitted to him that he threw a grenade in the direction of U.S. forces while they were storming a compound in Afghanistan that Khadr was hiding in.

After all, if Khadr lied about Arar, what else might he have lied about? The defense also claims it has forensic evidence that will show that Khadr was lying under a pile of rubble, the victim of a U.S. airstrike on the compound, at the time that prosecutors say he threw the grenade. That testimony has yet to be presented, however.

This hearing is heating up quickly. Stay tuned. 

Omar Khadr hearing, update, April 28, 2010


The rulebook for the Military Commissions were just issued last night, after months of commission proceedings without them.

Since neither the judge nor the lawyers had had a chance to read them yet by this morning, today's hearing on the motion to suppress statements extracted by torture and abuse, originally scheduled for this morning, has been postponed until 1:30.

We just heard that the new rules are posted on the Office of Military Commissions website, here.

Still, we have not been able to get copies of the motions being argued today. As I described before, the motions are supposedly asking to suppress statements made by Khadr during his 100 or more interrogations by US officials in prisons at Bagram and Guantanamo Bay, many of which he claims were extracted by torture. I say "supposedly" because the latest motions we've been able to see are from 2008. The new ones haven't been made publicly available.

HRF, Human Rights Watch, the ACLU and Amnesty International - all of whom have representatives here to observe the court proceedings - just sent a letter to the Convening Authority for the military commissions asking for copies of those.

I also just ran into Brigadier General Stephen Xenakis, who in addition to being a retired military general is a psychiatrist who's examined Khadr - arrested at age 15 and imprisoned at Guantanamo Bay for eight years now. He hopes to testify for the defense about the voluntariness (or lack thereof) of Khadr's statements made under abusive and coercive conditions, based on his examinations of Khadr. Although he's flown to Guantanamo Bay in the hopes of doing that, he still hasn't received clearance from the military commissions to testify at these proceedings.

Such is the state of the U.S. military commissions, eight years after their creation, that the judges and lawyers just got to see the rulebook and the witnesses have to fly all the way down to Guantanamo Bay without even knowing whether they'll be allowed to testify.

I'll report back after this afternoon's hearing - if it happens.

Update: Since our request, the Office of Military Commissions has informed us that the military commissions judge in the case of Omar Khadr has approved the public release of a Motion to Suppress pending in this case and that it is on the OMC website. It is available here.

Obama's First Military Commission Trial: A Child Soldier


This week, Omar Khadr, the 15-year-old Canadian arrested by US forces in Afghanistan eight years ago, will finally face a trial.

Or not.

Although the defense department's Office of Military Commissions sent out notices weeks ago saying Khadr's trial starts this week, the military's more recent notices to observers suggest that this week we won't actually see a trial -- we'll see a pre-trial evidentiary hearing instead.

That's typical of the military commissions, a quasi-court system set up in Guantanamo Bay to try detainees in the war on terror - what the Obama administration calls "unlawful enemy belligerents." (President Bush called them "enemy combatants.")

Regular observers of the military commissions are used to the confusion, misinformation and delay. After all, the military doesn't post the schedules or documents filed in military commission cases on its web site or any other publicly accessible place, the way the government does for regular federal court trials. But if it's annoying to observers, for the detainees themselves, who have been imprisoned at the military installation for up to eight years without a trial, the confusing stop-and-start nature of the proceedings have much more serious consequences.

Omar Khadr, for example, has been imprisoned without trial for more than one third of his 23 years. His trial, when and if it goes forward, will be the first military commission trial to be held under the Obama administration.

Accused of throwing a grenade that killed a U.S. soldier in Afghanistan in July 2002, Khadr -- a Canadian citizen whose family moved to Afghanistan in 1996 -- claims he is innocent. And there appears to be strong evidence to support that. According to a report in the Toronto Star, classified documents in the case indicate that "Khadr was buried face down under rubble, blinded by shrapnel and crippled, at the time the Pentagon alleges that he threw a grenade that fatally wounded a U.S. soldier."

Khadr was captured after a gunfight between U.S. forces and al Qaeda fighters. By the time he landed in US custody, he'd been shot twice in the back and once in the shoulder, struck with shrapnel in his right eye and wounded in his left leg.

When Khadr regained consciousness a week later, U.S. forces brutally interrogated him in the tent hospital at Bagram, he says, shackling him into painful positions and denying him pain medication despite his serious wounds. Even before he'd healed, he was forced into stress positions with his wrists shackled to the ceiling, made to carry heavy buckets of water and clean floors on his hands and knees, and threatened with barking dogs while a bag was tied over his head, according to documents filed by his defense lawyers. Not allowed to use the bathroom during interrogations, Khadr was forced to urinate on himself, he says.

When he was transferred to Guantanamo Bay three months later, the abusive interrogations continued. Khadr says he was beaten, sleep-deprived, and threatened with torture and rape.

That treatment is likely to be the focus of hearings scheduled in Khadr's case this week. Khadr' s lawyers claim that his statements in custody should not be used against him at trial because they were the products of torture.

The Military Commissions Act of 2009 prohibits the use of coerced statements except under very narrow circumstances that don't apply to Khadr's case.

In another case also involving tortured confessions from an adolescent, a military commission judge ruled that the statements of Mohamed Jawad, an Afghan whose family says he was 12 when arrested, could not be used against him because they'd been coerced by interrogators who'd threatened to kill him and his family. The government eventually dropped the case.

Khadr's lawyer are hoping their client will get similar treatment. But even if the case proceeds, it has many other problems.

For one thing, Khadr was only 15 when he was captured, and it's not clear that military commissions have jurisdiction over juveniles. No military commission has tried a child soldier since Nuremberg. Military court-martials don't try children, and a U.N. treaty on the rights of children in armed conflict ratified by the United States a month before Khadr was detained requires that child soldiers be treated as victims entitled to rehabilitation rather than as combatants to be punished. The Military Commissions Act, for its part, says nothing about jurisdiction over juveniles. And the commissions have no codified procedures or rules.

Equally fundamental is that the military commissions were created to try war crimes. But even if Khadr were guilty of the acts charged - murder, attempted murder, conspiracy, and aiding the enemy - those aren't really war crimes. At least, they weren't war crimes until Congress declared them to be in the Military Commissions Act of 2006 -- four years after Khadr allegedly committed them. So to try Khadr for war crimes now is a violation of the Ex Post Facto clause of the U.S. Constitution, Khadr's lawyers point out. (Khadr could, of course, be tried in a civilian court for the crimes of murder and conspiracy.)

Khadr's case, then, underscores many of the fundamental problems with the military commission system - that it has no rules, little experience, almost no precedent and barely any law to guide it.

So why did the Obama administration decide to make the case of Omar Khadr its first trial in a military commission?

If the administration is hoping to showcase the strength of its military and the president's tough stance on terrorism, this probably wasn't the best way to do it.


Dems Urge Holder to Stay Strong on 9/11 Trial

Democratic members of the Senate Judiciary Committee today urged Attorney General Eric Holder to stick to his initial determination that the alleged 9/11 plotters should be tried in civilian court, and not bow to partisan politics on what should be a legal determination.

"I think that the degree to which this dialogue has escalated is really very unhealthy," said Senator Dianne Feinstein (D-Cal.) at this morning's hearing, calling the recent attacks on Holder "reprehensible."

"Democrats did not do to Bush following 9/11 what has been done to this administration.. . . I believe the best interest of the people of this nation are served by the Attorney General, and the President, having maximum flexibility as to which venue these defendants should be tried in...I have never seen anything quite like this."

Feinstein was referring to pending legislation that would require the Obama administration to try the 9/11 defendants in the recently-created military commissions rather than in traditional federal courts, where almost all terrorism cases have been tried in the past. Another pending bill would require the administration to place all terror suspects in military custody rather than have them questioned by the FBI, which has the most experienced terrorist interrogators.

Feinstein denounced these efforts at the Senate hearing as based on deliberate ignorance. "The record is ignored," she said. "It doesn't matter that the Bush administration brought 200 terrorists to justice under Article 3 courts," she said, apparently referring to a Human Rights First study analyzing the successful prosecutions of self-described Islamic terrorists since 9/11. "It doesn't matter that the military commissions, fraught with controversy, have convicted only three terrorists, two of whom are already out."

Citing the recent guilty pleas of convicted terrorists Najibullah Zazi and David Headly, she said: "the fact of the matter is that Article 3 courts have other charges they can use if they don't have evidence to sustain a pure terrorists charge," referring to the civilian federal court system authorized by Article 3 of the U.S. Constitution. "You should have that option," she said to Holder. "A lot of the attacks are just to diminish you. You should not buy into that. You should stay strong."

Senators Russell Feingold (D-Wisc.), Richard Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) made similar remarks and echoed Feinstein's concerns.

Attorney General Eric Holder this morning gave no indication whether the 9/11 plotters will ultimately be tried in a civilian court or military commission, although he promised that the decision would be made within "a number of weeks."

Holder said that "New York is not off the table as a place where they might be tried," yet said the administration would "take into consideration" local objections.

Although local officials had initially supported hosting the trial, after a downtown real estate group protested about the disturbance to local businesses, officials such as New York Mayor Michael Bloomberg and Senator Charles Schumer reversed their stance.

Holder made clear this morning, though, that the trials could be held in federal court even if they don't take place in downtown Manhattan. "The Southern District of New York is a much larger place than simply Manhattan," said Holder. "There's also the possibility of trying the case in other venues beyond New York."

Senator Jeff Sessions (R-Ala.) hammered Holder on his initial decision to try the case in a New York court, then criticized him for wavering on the decision in response to local objections, and concluded: "I hope you will reevaluate this and we will soon have clarity about what the policy of the Department of Justice is."

Holder wouldn't say where the 9/11 defendants will ultimately be prosecuted, he did defend the track record of civilian federal courts, which he said have prosecuted close to 400 terrorists since 9/11, relying on recently-released Justice Department numbers.

Holder pleased some of his critics, however, by repeating that the administration still intends to hold 48 detainees "who are too dangerous to transfer but not feasible to prosecute."

Senator Lindsey Graham (R-S.C.), who's been pushing Congress and the administration to support legislation that would create a scheme for indefinite detention without trial within the United States, seized on the opportunity to note that the rules for indefinite detention based on "dangerousness" remain unclear.

"I would urge you to work with Congress to see if you can retain flexibility," Graham said to Holder. "If you're a member of Al Qaeda you're a continuing threat to the world," he said, adding: "holding a member of Al Aaeda who is a continuing threat until they die in jail is okay with me."

Asked by Sen. Benjamin Cardin (D-Md.) whether there would be a review process for those indefinitely detained prisoners who could be left to die in jail, Holder said: "that's something we 're still working on."

Holder didn't specifically say whether that process would be developed by the executive branch or should be created by Congress, although he indicated that an interagency review was ongoing and that he's "hoping to have something we will be willing to share and put in place in a relatively short time."

Another Anti-Federal Court Argument Crumbles

Andrew McCarthy, the former prosecutor and National Review Online columnist, has lately been highly critical of trying suspected terrorists in traditional federal courts. (In the past, he's been critical of military commissions, too, as being too soft on terrorists.) The criticism of civilian trials is partly because, he and others claim, federal courts risk releasing classified information to terrorists. That myth has just been thoroughly debunked.

The poster case for the critics' claim is the 1995 federal court trial of Egyptian-born Omar Abdul Rahmand Sheikh" -- commonly known as the "blind sheikh" -- who was successfully prosecuted for conspiring to bomb the World Trade Center in 1993. In that case, the government’s list of unindicted co-conspirators was reportedly inadvertently leaked during the trial and made its way to Osama bin Laden.

Now, the "blind sheik" trial has become one of the leading red flags raised by critics of the Obama administration's plans to try terrorist suspects in federal courts. Critics claim it's a prime example of how civilian court trials help terrorists obtain classified information to support their cause.

But the list in question, it turns out, could have been protected, as my former colleague Spencer Ackerman explains in The Washington Independent. The prosecutor on the case, Andrew McCarthy, could have invoked the Classified Information Procedures Act, or CIPA, to protect that list from public disclosure. He did not.

“We did not ask for CIPA protection on any of the discovery, including the co-conspirator list,” McCarthy told Ackerman. “I suppose we could’ve done that.”

Yes, he could have, and that would have prevented the leak.

In fact, in a review of all major terrorism cases involving Islamic extremist or jihadist groups produced by Human Rights First, former prosecutors with experience prosecuting terrorism cases concluded that CIPA "is working as it should: we were unable to identify a single instance in which CIPA was invoked and there was a substantial leak of sensitive information as a result of a terrorism prosecution in federal court."

But it does require that the prosecutor pay attention to the evidence in the case and determine whether it should be protected. Civilian prosecutors do that all the time. Either McCarthy was not paying attention, or he decided that the list of unindicted co-conspirators wasn't particularly sensitive or important and did not merit special protection. Given that the list was not classified, McCarthy may well have concluded that its disclosure would not be harmful. Either way, his role in the "Blind Sheikh" case destroys the argument that McCarthy himself has been expounding for some time now -- that prosecuting terrorism cases in civilian federal courts risks releasing sensitive national security intelligence to dangerous terrorists.

Turns out that's only true if the prosecutor makes no effort to protect that intelligence.

It's worth noting that the military commissions' rules for the handling of classified information are modeled on and virtually identical to the rules used in civilian federal courts. And the military prosecutor still has to invoke the rule for it to effectively protect any evidence.

Guantánamo Hearings: A Military Bureaucratic Conundrum

"This is an issue of first impression for the military commissions, yet again," conceded the lead military prosecutor, addressing the military commission judge in the case of Noor Muhammed on Wednesday in a courtroom in Guantánamo Bay, Cuba.

Lt. Cmdr. Arthur Gaston of the U.S. Navy, the lead prosecutor, was arguing to Navy Capt. Moira Modzelewski, the judge, that it was up to her to decide if the detainee's former military defense counsel should continue to represent Noor, although the Army had assigned her to elsewhere. And really, he added, it was up to the Army, not the court, to make the final determination.

The military bureaucratic conundrum seemed to leave everyone in the courtroom - and in the observers' gallery, which was walled off by bullet-and-sound-proof glass -- scratching their heads. (Observers at this courtroom, which was built specially to try the 9/11 suspects, only get to hear the proceedings via an audio feed that transmits the sound after a several-minute time-delay.) Like many questions that arise in these military commission hearings, the answer to this one could not be found anywhere in the rules or the military commission precedent.

That's partly because the current military commissions, created by the Military Commissions Act of 2009 - have no rules. The military hasn't issued them yet. The now-outdated rules that governed the previous commission, created by a 2006 law, don't address this situation either. And there is almost no military commission precedent to speak of. After all, in the eight years since they were created, the military commissions have tried only three cases. Of those, only two detainees even put up a defense. Both have since been released from prison.

Throughout yesterday's hearing, if there was one thing that the prosecution, defense and judge could agree on, it was that there simply is no law to guide many of the situations that come up in the military commission cases of the Guantánamo detainees.

The lead civilian defense counsel, Howard Cabot, an experienced trial lawyer, kept citing precedent from the military court-martial cases and the rules of the Uniform Code of Military Justice, or UCMJ. But those are designed to govern cases involving U.S. servicemembers, not suspected terrorists. And except in the three cases already mentioned, suspected terrorists have always been charged and tried under federal criminal law and federal rules of criminal procedure, in civilian federal courts.

The lack of precedent and uncertainty about the constitutionality of the commissions themselves has made it virtually impossible to try these cases. It also leaves any future verdict vulnerable to challenge on appeal.

In Noor's case, as in many others, the government hasn't even established that the court has jurisdiction over him, because it has yet to prove he was a fighter for Al Qaeda or the Taliban. Even if it proves that he supported terrorists groups, Noor can later appeal on the ground that "conspiracy" and "material support" for terrorism aren't really war crimes, but instead are crimes in the federal criminal code that belong in civilian criminal court. And the government could be required to start his case all over again.

Setting aside the astonishing delay in the trial of Noor and the other Gitmo detainees, perhaps the best reason against trying them at Guantánamo Bay is that these trials are unlikely to lead to the sense of justice, finality and closure that Americans terrorized by the attacks of Sept. 11 want and deserve. More likely, as Noor's case illustrates, they'll lead to an endless round of drawn-out hearings and appeals, as lawyers fight over what the rules are or ought to be, each conceding, as they must, that there is no clear law to guide them.

That will only further delay justice - not only for the suspects indefinitely imprisoned at Gitmo, but for the victims of the acts of terrorism that they're accused of orchestrating.

It's Not All Fun and Games at "Camp Justice"


The thing that first strikes you about Guantanamo Bay's "Camp Justice" is what an extraordinary effort was made to create something that never needed to exist. Though federal courts have been interrogating, trying and imprisoning terrorists for more than 200 years, for some reason the U.S. government believed after September 11, 2001 that it needed to create a whole new way of doing that. So it set up this sprawling military camp, complete with housing for lawyers, journalists, observers, two new courthouses, hyped-up security with endless coils of concertina wire -- all to house a few hundred guys who could have been much more efficiently and just as safely held in high-security prisons in the U.S.

If efficient justice was even part of the goal, the case of Noor Muhammed, who appeared for a hearing in the military commission today, is a great example of just how spectacularly the government has failed.

Noor Muhammed was arrested in March 2002 in Pakistan. He's been charged with helping to train Al Qaeda militants at a training camp in Afghanistan from 1996 to 2000. The only act he's charged with that occurred after September 11, 2001 is allegedly trying to evade local authorities by escaping from a safehouse in Pakistan in March 2002.

Noor denies that he was a member of al Qaeda, or an "unprivileged alien enemy belligerent" as the U.S. claims. But though he's been imprisoned at Guantanamo Bay for eight years, themilitary commission still hasn't even held a hearing to decide the answer to that question. If Noor is right, the military commissions don't even have jurisdiction over his case.

Today, Capt. Moira Modzelewski, the military commission judge presiding at the hearing, announced that the hearing on that issue won't be held until August.

Still, the government has flown several dozen prosecution and defense lawyers, observers and journalists down to a hearing at Guantanamo Bay that lasted less than two hours. The issue decided? A complicated military bureaucratic question of whether Noor's previous military defense counsel could continue to represent him now that she'd been ordered by the military to another assignment.

Noor's lead civilian defense lawyer, Howard Cabot, a volunteer New York-based attorney from the private law firm Perkins Coie, made an eloquent argument in favor of retaining the former military counsel, and ultimately convinced the judge of the importance of their ongoing attorney-client relationship. The judge concluded, however, that she can't tell the Army what to do, so could only "strongly recommend" that the lawyer be allowed to continue her representation.

Select civilian and military observers and journalists got to watch all this somewhat baffling bureaucratic wrangling through panes of bullet-proof glass in a huge courtroom built to accommodate the trials of the five September 11 suspects - trials which still have not taken place. We were only permitted to hear the proceedings several minutes after they occurred, though, since they're broadcast on a time-delayed monitor. By the time we heard the court clerk say "All rise," for example, we'd already seen the lawyers in the courtroom rise, the judge enter the room and everyone sit down minutes earlier.

Strangely, this hearing is a small sign of progress, since the military commission proceedings have been largely stalled since President Obama took office and mulled over what to do about them. Human Rights First and many others hoped the administration would terminate the military commission proceeding and try all of the Guantanamo detainees in ordinary federal courts that are experienced at trying terrorist suspects. But that's not what the administration has decided to do. Instead, it is proceeding with at least a handful of cases in these ill-fated military commissions - Noor Muhammed's among them.

That the commissions are ill-fated is demonstrated in part by the fact that in 8 years, they've held only three trials. Only two of those were contested. And both of those defendants, although convicted, have since been released. By contrast, civilian federal courts have tried more than 400 suspected terrorists since September 11, 2001. HRF has documented 195 convictions of terrorists associated with self-described jihadist or Islamist extremist groups since that time.

But the military commission trials are not even scheduled yet. Today, the judge said that Noor's trial - much of which will repeat the presentation of evidence already presented at the hearing to decide the court's jurisdiction over him - won't be held until sometime next year.

Meanwhile, the 40-something year old Sudanese national, wearing a white shirt and graying beard as he sat quietly in the courtroom observing the proceedings today, has been imprisoned on this military camp without a trial for more than 8 years.

Lately, it's become almost fashionable to claim that Gitmo isn't so bad, and is probably better than the supermax prisons where convicted terrorists would go if tried in the United States. Miss Universe, Dayana Mendoza, last year cooed about Gitmo's beautiful beaches. And a press officer on this trip told me that some of the detainees now even get to take painting classes to keep them occupied.

The military has also reportedly made signficant improvements from the original open-air cages where prisoners were completely exposed to the elements, which in Guantanamo Bay can get pretty brutal.

In fact, for the observers privileged enough to travel here to see the military commission hearings (the general public, including relatives of the suspects imprisoned here, are not allowed to attend), it's not really so bad at all. I ate at a Taco Bell yesterday, drank beer at an Irish bar last night, am staying in an air-conditioned tent that's only a few hundred feet from relatively clean, if strangely public, women's latrines. And if you walk past the military barracks down the road to the beach, the view is positively breathtaking. There's even a diving shop where we can rent snorkeling equipment and explore the underside of the 80-degree Caribbean waters.

All that relative comfort can lull an observer into forgetting that on the other side of the military base, the side we don't get to see, men who were seized overseas, many based on statements made by wholly unreliable accusers, have been imprisoned by the United States government without trial - many even without charge - for more than 8 years.

These days, any news about Gitmo is focused mostly on the future trial of Khalid Sheikh Mohammed and his alleged 9/11 terrorist co-conspirators. Although Attorney General Eric Holder announced that trial will take place in federal court in New York, the administration has since wavered and suggested it may bow to political pressure and the irrational fears that have been whipped up to intensify that pressure, and change its mind.

Where the 9/11 trial takes place is extremely important. But it's worth remembering that there are also more than 150 other prisoners that remain here. Most have been accused of vague, unproven acts of assisting terrorism at some point years ago somewhere overseas. Almost none of them has yet received a trial and few have been charged with any crime.


Court Ruling Highlights Need for New State Secrets Law

Last week, a federal court judge in San Francisco ruled that the Bush administration had illegally wiretapped an Islamic charity and its lawyers without a warrant. The case is notable not only for the judge's decisive ruling that government officials deliberately broke the law. It’s also important for its implicit finding that the government, using the so-called “state secrets privilege,” tried to cover up the crime.

On Tuesday, Judge Walker ruled that the National Security Agency had violated the Foreign Intelligence Surveillance Act, or FISA, by tapping the phones of the Al-Haramain Islamic Foundation and two of its lawyers without first getting a warrant.

The government all along hadn’t actually denied the warrantless wiretapping; it had just refused to turn over information about the NSA’s program, insisting that such data would reveal “state secrets” and endanger national security. Never mind that the government could have produced the relevant documents “in camera” – only for the judge’s review – as FISA requires. It still refused, saying the state secrets privilege trumped the requirements of FISA.

Judge Walker disagreed. This week, based on the non-classified information he had available, he ruled that the government had broken the law.

But it wasn’t just the warrantless wiretapping that concerned the judge in this case. Walker also emphasized the importance of not counting on the government alone to protect our civil liberties, given the "obvious potential for governmental abuse and overreaching inherent in [the government’s] theory of unfettered executive-branch discretion".

The government is applying that same “theory of unfettered executive-branch discretion” in several other cases alleging government lawbreaking – including cases involving extraordinary rendition and torture.

In Mohamed v. Jeppesen Dataplan, for example, five victims of the Bush administration’s program of “extraordinary rendition” claim they were secretly flown to CIA “black sites” and tortured, with the help of Jeppesen Dataplan, a subsidiary of Boeing. The government had already claimed it was immune from suit, so the victims sued Jeppesen for damages, claiming the company knew full well that it was helping the government transport the men to other countries where they'd be interrogated under torture.

In 2007, the Justice Department intervened in the case and asked the court to dismiss it, arguing that allowing the lawsuit to proceed would reveal “state secrets” – specifically, information about the Bush administration’s extraordinary rendition program, which by then had already been widely publicized.

When President Obama took office, he explicitly banned the use of torture in interrogations and announced an end to extraordinary rendition. But within months, the Justice Department asserted in court that it would maintained the same position as its predecessors in the Jeppesen case – that it must be dismissed to conceal information about the supposedly defunct NSA program.

The case is now on appeal. But if the government has its way, the claims will be dismissed, the victims will never get their day in court, and the public will never know what really happened to these or any other suspects who may have been sent overseas to be tortured.

The State Secrets Protection Act, now pending in the House and Senate, would prevent the government from using the state secrets privilege to dismiss cases in order to cover up official crimes. Instead of dismissing the entire case, the judge would have to examine the evidence to see if it really does reveal state secrets – for example, the identity of a CIA agent or a secret intelligence program – and see if it’s possible to remove just that evidence from the case or otherwise protect it from public disclosure. The case could then move forward without jeopardizing national security.

If all cases were being heard by Judge Vaughn Walker, who ruled for the Al Haramain Islamic Foundation this week, perhaps a new law wouldn’t be necessary. But many judges have more readily deferred to the government’s unilateral claims that cases charging government wrongdoing must be dismissed to protect national security.

Congress shouldn’t be letting the executive branch get away with that.

March Madness Strikes the Terror Debates

The Wall Street Journal is absolutely right thatLindsey Graham is tossing up an embarrassing air ball. Graham's effort to get the administration to abandon legitimate federal court trials for suspected terrorists in exchange for the funding needed to close Guantanamo Bay is headed nowhere fast, predicts the Journal.

As I've noted before, Graham doesn't have support for his scheme from either side of the aisle.

Senators with any respect for the U.S. justice system, let alone real concern for national security, know that it's absurd to bargain away the requirement that the 9/11 suspects get a legitimate trial. That means a trial that not only convicts the guilty but reveals what really happened when the United States was ruthlessly attacked on September 11, 2001, and showcases our respect for the rule of law over brutality and political expedience. After all, the US constitution is no bargaining chip - it's survived 223 years, through war and peace, for good reason.

Richard Durbin (D-Ill.), Russell Feingold (D-Wisc.), Patrick Leahy (D-Vt.) and others know that any cheap political points lawmakers might score by abandoning American principles will come back to bite them - particularly if military commission convictions are reversed on appeal. They'll be even more embarrassed when the country looks back a few years from now and wonders how Congress came to abandon the most basic American principles because it was cowed by a handful of thugs eager to be seen as warriors for Allah martyred by the United States government.

Lawmakers speaking out against civilian trials, meanwhile, are so intent on undermining the Obama administration, regardless of their impact on national security, that they're obstructing justice to score political points. Not only do they oppose federal trials, but they won't agree to closing the prison camp at Guantanamo Bay so long as President Obama remains in office. No matter that scores of military leaders, in addition to former President George W. Bush and Senator John McCain - when he was a presidential candidate - agreed that Guantanamo must be shuttered.

So the Journal's right that Graham can't possibly deliver victory on his proposed compromise. But the paper's conclusion -- that military commissions are the place for KSM & Co. to go -- is based on assumptions wholly divorced from the facts.

Military commission proceedings "since September 11 have been serious and even-handed," writes the Journal in its endorsement of those trials.

Really? Three convictions in eight years - only two of which followed trials that were even contested -- hardly backs that claim up.

Take the case of Salim Hamdan, who military prosecutors characterized as a "hardened Qaeda member" and bin Laden's right hand man. The military jury acquitted Hamdan of all conspiracy charges and three of eight charges for "material support for terrorism." The result was a sentence of only five and a half years - most of which he'd already served. And that was a case that government officials had said was "one of their strongest" against any of the Guantanamo detainees, as reported in the Wall Street Journal.

Meanwhile, federal prosecutors have convicted more than 195 terrorists in federal court.

Even Brookings Institution fellow Benjamin Wittes and former Bush administration official Jack Goldsmith, writing in the Washington Post last week, acknowledge the weakness of the military commissions. The two note that "serious legal issues remain unresolved, including the validity of the non-traditional criminal charges that will be central to the commissions' success and the role of the Geneva Conventions." Sorting out those issues "will take years and might render them ineffectual," the authors add. They also note that the commissions lack international legitimacy.

Wittes' and Goldsmith's solution, however, is even worse than the Journal's. "Don't bother trying them at all," the two scholars pronounced. "Domestically, the political costs of trying high-level terrorists in federal courts have become exorbitant," they argue, while the "public relations and related legitimacy benefits" of a military commission trial aren't great, either.

So there we have it. Whether and how to try a group of men who are believed to have orchestrated the worst terrorist attack and mass murder ever on U.S. soil has come down to a question of pure politics. "It is time to be realistic about terrorist detention," write Wittes and Goldsmith, and to concede that the time has come to do away with our quaint notions of justice in favor of a new system of indefinite detention without trial. That should be supported, they argue, with new legislation codifying its legitimacy in U.S. law.

To be sure, that's been the de facto response to many of the suspected terrorists held at Guantanamo Bay for the past eight years.

A similar course was briefly considered after World War II, when Winston Churchillreportedly told Joseph Stalin that he'd rather just execute Nazi leaders upon their capture. Stalin, of all people, insisted that they deserved a trial.

Historically, the United States has prided itself as being several steps above Stalin in terms of its respect for the rule of law. But these latest proposals make one wonder just how low some American opinionators and policymakers may be willing to sink.

State Dept Promises To Produce Legal Justification for Drone Attacks

State Department Legal Adviser Harold Koh has promised to produce the Obama administration's legal justification for its increased use of drone strikes to kill suspected terrorists, reports Shane Harris of the National Journal.

"I have studied this question," Koh told the audience at an American Bar Association breakfast yesterday. "I think that the legal objections that are being put on the table are ones that we are taking into account. I am comfortable with the legal position of the administration, and at an appropriate moment we will set forth that in some detail."

Let's hope that "appropriate moment" comes pretty soon, because controversy over the drone attacks is heating up. The ACLU in January filed a FOIA request asking the government to turn over that legal justification, as well as the facts underlying it. Then this week, after receiving a response from the CIA that it can neither confirm nor deny the existence of any relevant documents, the ACLU filed a lawsuit.

Meanwhile, as Adam Serwer points out at The American Prospect, a New America Foundation study raises concerns that about a third of the victims of drone attacks have been civilians, and international lawyers have been debating for months now whether the targeted killings violate international law. (Jane Mayer's story on drone attacks in The New Yorker last October does an excellent job of laying out the controversy.)

Such an eminent legal expert as Philip Alston, the U.N. Special Rapporteur on Extrajudicial Executions, has said that the drone attacks, despite their obvious appeal to the U.S. and the U.K., raise serious legal concerns.

As he explained in a recent article in The Guardian with Hina Shamsi, "Drones may only be used to kill in an armed conflict. The killing must fulfill a military need, and no alternative should be reasonably possible." In Afghanistan, where U.S. forces are fighting armed militants but not the troops of another country, "the target must have a direct connection to the combat, either as a Taliban or al-Qaida 'fighter', or as a civilian who is 'directly participating in hostilities'. The use of force must be proportionate, meaning that commanders must weigh any expected military advantage against possible harm to civilians." Violating these requirements could constitute a war crime.

Given the secrecy of the United States' drone program, it's impossible to know whether the government has met these legal requirements. That's left the administration open to critics' suggestions that it has not, and may well be fomenting anger among the residents of areas being targeted.

General Stanley McChrystal has said that reducing civilian casualties in Afghanistan is critical to a key part of his counterinsurgency strategy -- winning the "hearts and minds" of the Afghan people. Revealing the facts about how the United States is using its expanded and now well-known drone program must be a critical component of that strategy.


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