Walid bin Attash to Be Denied Day in Court because al-Nashiri Was Tortured?

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Dafna Linzer has a story on Obama’s consideration of implementing indefinite detention via Executive Order because Congress isn’t going to cooperate with it.

The Obama administration, fearing a battle with Congress that could stall plans to close Guantanamo, has drafted an executive order that would reassert presidential authority to incarcerate suspected terrorists indefinitely, according to three senior government officials with knowledge of White House deliberations.

The whole story is worth reading. But I’m particularly interested in the last bit–where Linzer names one of the people they’re considering using indefinite detention on: Walid bin Attash.

Walid bin Attash, who is accused [4] of involvement in the bombing of the USS Cole in 2000 and who was held at a secret CIA prison, could be among those subject to long-term detention, according to one senior official.

Little information on bin Attash’s case has been made public, but officials who have reviewed his file said the Justice Department has concluded that none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify.

Administration officials believe that testimony from the only witness in U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.

"These issues haven’t morphed simply because the administration changed," said Juan Zarate, who served as Bush’s deputy national security adviser for counterterrorism and is now at the Center for Strategic and International Studies in Washington.

A couple of bits about this.

First, there was a great deal of FBI work done on the Cole before the torture started. Are you saying we captured and held someone based on Rahim al-Nashiri’s word, and not on real FBI information? This is all the more interesting, because information about bin Attash’s role in the Cole bombing is precisely the information that–in 2000–was not used to support a response to the Cole bombing.

But the presentation of bin Attash as one candidate for indefinite detention raises another obvious problem with indefinite detention. Is the Administration worried about al-Nashiri’s credibility as a witness? Or–given the weirdness surrounding his waterboarding–is the Administration worried about what al-Nashiri’s testimony (either public or written) would reveal about our own treatment of him?

Will Walid bin Attash be deprived a day in Court because we’re covering up our own torture?

39 replies
  1. MadDog says:

    On Dafna’s story, I found this interesting:

    “Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order,” the official said. Such an order can be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should either be prosecuted or released.

    Civil liberties groups are supporting prolonged detention? What civil liberties groups would that be?

    And prolonged detention? For just how long?

    As an interesting side note, Dafna Linzer formerly worked at WaPo as one of their National Security correspondents, and is the wife of WaPo reporter Barton Gellman, who is the author of Angler – The Cheney Vice Presidency.

    • emptywheel says:

      Well, I can imagine them opting for an EO on indefinite detention to a law for several reasons: easier to knock down in court, it doesn’t set a precedent that will be used by BabyDick to incarcerate people like us, and so forth.

      Yeah, Dafna was a big loss to the WaPo.

      • MadDog says:

        And I’d guess we’d both agree with Dafna’s reporting that trying to get legislation through Congress would be problematic.

    • nrafter530 says:

      From what I hear these groups think (and the Obama administration agrees) the executive order would be found unconstitutional and would fast track trials and still allow Obama to close Gitmo, so Congress is bypassed.

      But it is risky…what if the courts uphold indefinite detention? But they can cross that bridge when they get to it.

  2. MadDog says:

    And note in an NYT article June 6, Walid bin Attash was one of the 5 detainees who said they wanted to plead guilty to the 9/11 attacks back in December 2008:

    …During a December tribunal proceeding in Guantánamo, the five detainees charged with coordinating the Sept. 11 attacks said they wanted to plead guilty. Military prosecutors argued that they should be permitted to do so. Defense lawyers argued that tribunals should follow American military law and bar the guilty pleas. The military judge has not yet made a decision.

    Lawyers who were asked about the administration’s proposed change in recent days said it appeared to be intended for the Sept. 11 case.

    “They are trying to give the 9/11 guys what they want: let them plead guilty and get the death penalty and not have to have a trial,” said Maj. David J. R. Frakt of the Air Force, a Guantánamo defense lawyer…

    …The administration has not announced whether it will continue with the Sept. 11 case in the military commissions or charge some of the men in federal court. Officials involved in the process said that lawyers reviewing the case have said that federal-court charges against four of the men might be possible, but that the evidence might be too weak for a federal court case against one of the five, Walid Bin Attash, a veteran jihad fighter who was known as Khallad…

    So, is the guilty plea-death penalty-martyrdom plan now off the Obama Administration’s table?

  3. Hmmm says:

    Huh. Sounds like delaying tactics at best, if you believe there will ever be legislation invalidating the EO or successful litigation against the EO (and there should be). Isn’t it a bit early in the game to start playing kick-the-can-down-the-road? Especially if there’s a likely second term?

  4. Garrett says:

    Three months into the Justice Department’s reviews, several officials involved said they have found themselves agreeing with conclusions reached years earlier by the Bush administration: As many as 90 detainees can not be charged or released.

    Is this a known event, that there was what sounds like a written report or determination or memorialization that they had totally fucked up on any possibility of trial, and that the acknowledgment of it had happened early on?

  5. MadDog says:

    For those interested in reading Walid bin Attash’s Combatant Status Review Tribunal (CSRT) and military Administrative Review Board summaries, see the NYT’s Guantánamo Docket entry for Walid bin Attash here. There are 13 pages of summary documents.

    Note that the NYT only has Walid bin Attash’s CSRT summary from November 2004.

    There is another Walid bin Attash CSRT summary from February 2007 which the NYT doesn’t show and that can be read here.

  6. Aeon says:

    Will Walid bin Attash be deprived a day in Court because we’re covering up our own torture?

    I don’t know about him, but it looks like Jane Harman will be deprived her day in court.

    Representative Harman Told She Is Not Subject of Investigation

    By MARK MAZZETTI
    Published: June 26, 2009

    Representative Jane Harman, Democrat of California, who former officials said was overheard on government wiretaps discussing leniency for two pro-Israel lobbyists, is not the subject of a criminal investigation, according to a Justice Department letter. Former intelligence and law enforcement officials said Ms. Harman became ensnared in 2005 in an investigation into Israeli influence in Washington when she was overheard promising to intervene with the Bush administration on behalf of the two lobbyists, who had been charged with disseminating national security information. In a letter made public by Ms. Harman’s office, a top Justice Department official told her lawyer that she was “neither the subject nor a target of an ongoing investigation by the criminal division.”

    Sorry for the OT, but I couldn’t help it with a set-up like that.

  7. bmaz says:

    And by what established and transparent mechanism are we going to be able to discern between those we are indefinitely detaining because they are real terrorists we have tortured so bad they cannot stand trial and those we are indefinitely detaining because they were so freaking innocent we will be embarrassed if they stand trial? Cause I see no reason to believe we won’t have a fair amount of both if past is prologue (and it usually is).

  8. Mary says:

    Well, here’s one thing that doesn’t make sense if you click through to allegations on the “accused” list.

    One of the allegations is that:

    Mohammad Rashed Daoud AI-Owhali (AI-Owhali) stated that in approximately June or July 1998, the detainee told him that his (AI-Owhali’s) mission was a martyrdom mission, where he would be driving a vehicle filled with explosives into a target which would result in his death. The detainee told Al-Owhali the target was a United States embassy in East Africa, but he was not told the exact country.

    Owhali is certainly available to testify, he’s here in prison. He (Owhali) also got forged docs from Nashiri and so one of the allegations,

    Stamps utilized on a forged Yemeni merchant’s registration card, which was utilized by [bin Attash], were forged by a suspect of [Nashiri]the USS Cole bombingmight be able to be linked (although circumstantial) without Nashiri’s testimony that he made the forgeries. Other allegations invovle being at training camps – which aren’t really any kind of a crime in and of themselves and wouldn’t tie him to the Cole bombings or do anything much other than make a jury dislike him that much more.

    These items/allegations:

    j. A notebook that was seized during the capture of a senior al Qaida operative contained a phone number that was also found in the stored memory of a phone belonging to the detainee.
    k. The detainee’s University of Islamic Studies identification card was found at an alleged al Qaida residence in Karachi, Pakistan.
    1. The detainee was implicated in a notebook containing account ledgers for payments made to various al Qaida operatives which was found during a raid of an al Qaida safe house.

    can be gotten in, as under the case law established in both Padilla and Saleh, by bringing on masked guys to testify but who can’t really be cross examined and who don’t really have any chain of custody — still, it’s already been established that these days those things aren’t big deals and don’t need Yemeni’s carted over to testify to them.

    I’m not buying that they can’t bring charges against him without the two unavailable witnesses or the tortured witness. Instead, they don’t want to bring charges bc they can forsee any number of ways that the torture is going to be raised in court (although with Padilla they managed to set precedent to avoid a lot of it) and give discovery nightmares.

    Isn’t he the legless guy who there were stories about on the extemity of his stress position treatment and how they took his leg away to make it more poignant? Or am I confused/muddled on that?

    Or if he wanted to use Nashiri as a witness to “yeah, I forged his docs, but not for xyz, I did it for abc” that would open the door to Nashiri talking about being tortured to say something else, etc.

    yada yada yada

    I don’t buy that it’s not that they can’t make their case without the three witnesses mentioned – I think that they can probably not make a death penalty case out of what they have, but they do have the guy here in prison and docs of the sort that they got into in Padilla and Saleh and circumstantial tie ins etc. They could make something stick without using Nashiri and other torture victims statements, but they probably can’t cleanse the case of torture coming up and that’s what they don’t want.

    BTW – this whole concpet, that you can detain and punish people without due process involving an independent magistrate is what the Constitutional prohibitions on attainder were all about. Our Executive was NOT given the power of attainder and Congress is expressly prohibited from conferring that power the Executive.

  9. MadDog says:

    From Page 3 of Walid bin Attash’s October 2005 Adminstrative Review Board summary:

    3. The following primary factors favor continued detention:

    a. Commitment

    1. The detainee’s entire family, with the exception of his mother, two sisters and his youngest brother, had participated in jihad.

    (My Bold)

    Ummm…entire family?

    Previous statements said that his father, currently in jail in Saudia Arabia, was a close contact of Osama Bin Laden, and that one of his brothers was a “prominent member of al Qaida”.

    So 4 members of his family are not connected to jihad, and 2 members have some connection with Osama Bin Laden.

    So how did the US government come up with the exaggerated description of “entire family”?

    And somehow use that as the 1st evidence against him?

    • esseff44 says:

      This is from a time article based on memos profiling the ‘high value 14′ brought to GTMO after they figured there was no more intelligence to wring out of them.

      terrorist lineage. Walid Bin ‘Attash, for instance, “is the scion of a prominent terrorist family,” whose father was close to Osama bin Laden. Several of his brothers trained and fought in Afghanistan in the 1990s, the bio notes; two of them were killed, and another brother has been detained at Guantanamo Bay since 2004. Bin Laden “reportedly selected” Bin ‘Attash, who lost a leg in a 1997 battlefield accident in Afghanistan, to be a 9/11 hijacker. But ultimately Bin ‘Attash was limited to helping pick other hijackers, after he was arrested and briefly detained in Yemen in 2001, the bio says.

      http://www.time.com/time/natio…..15,00.html

      That indicates more brothers were jihadis including those killed fighting the Russians.

      • MadDog says:

        …That indicates more brothers were jihadis including those killed fighting the Russians.

        Good point and thanks for digging deeper.

        And I do think there still is some validity to my point that part of the rationale for hanging the “unlawful enemy combatant” rope around Walid Bin Attash’s neck was for familial “associations” rather than specific deeds done.

        As in “We’re suspicious, so you must be guilty”. A lot of that was (and still is) going around.

        • esseff44 says:

          Yes and a lot of those associations date from the fight against the Russians which the US backed at the time. The other common association is staying at a guest house for foreigners where AQ or Taliban have also stayed. Many of these ties are thinner than spider webs.

  10. emptywheel says:

    I also think one of the reasons they may be considering this with bin Attash is because they don’t want to reveal that Yemen was involved in the attack and/or complicit in covering it up.

  11. bmaz says:

    I don’t buy that it’s not that they can’t make their case without the three witnesses mentioned – I think that they can probably not make a death penalty case out of what they have, but they do have the guy here in prison and docs of the sort that they got into in Padilla and Saleh and circumstantial tie ins etc. They could make something stick without using Nashiri and other torture victims statements, but they probably can’t cleanse the case of torture coming up and that’s what they don’t want.

    Maybe they are afraid of Nino’s newfound love of the Confrontation Clause in Melendez-Diaz v. Massachusetts

    • Mary says:

      Scalia can be the hard one to call, but that didn’t surprise me that much. He was a non-Roberts boy on a right to counsel case a year or two ago as well.

      I think they just want to avoid all the worms in the can. EW mentions the Yemen issue (13) but they also “charge” him with providing funds that were used by terrorists. Is there any counsel who is not going to bring up all the Saudi royal family money that poured over as well?

      From Mad Dog’s linkwe also find out that he had lots of email accounts that he used to communicate with al-Qaeda members about terrorism — and they can’t use any of that because …?

      And if they want to go back to the 80s for the family connections of Bin Attash with Bin Laden, isn’t it going to open that pesky door to, again, all the Saudi royal family who hung with big BL back then too, and all the US/CIA support of “the jihad”?

      And MD, that part about his older brother being a Sr. Lt of BL, apparently comes from “an individual”

      Really – when you look at what they convicted Padilla of and on, there’s not much question about the ability to get some kind of convictions with what they can put on in a case in chief that doesn’t involve torture, esp with Owhali. It’s a matter of how much they can make stick and all the doors it opens. Doors Obama never wants opened, no matter who or what is locked behind them.

      • MadDog says:

        I do think you bring up an enormously important point/consideration for the powers-that-be. Namely, the Saudi backstory.

        In keeping with that point and sideways to EW’s post topic, Gareth Porter had another interesting article today:

        Freeh Became “Defence Lawyer” for Saudis on Khobar

        In early November 1998, Louis Freeh sent an FBI team off to observe Saudi secret police officials interviewing eight Shi’a detainees from behind a one-way mirror at the Riyadh detention centre. He planned to use the Shi’a testimony to show that Iran was behind the bombing.

        As expected, the stories told by the detainees recapitulated the outlines of the Shi’a plot that had already been described by the Saudis two years earlier. Now there were even more tantalising details of direct Iranian involvement.

        One of the detainees said Iranian Revolutionary Guard Corps General Ahmad Sherifi had personally selected the Khobar barracks as a target. Another said the Saudi Hezbollah members had been not only trained but paid by the Iranians.

        “We came away with solid evidence that Iran was behind it,” says a former FBI agent.

        There was one problem with the evidence the FBI team collected: the Saudi secret police had already had two and half years to coach the Saudi Hezbollah detainees on what to say about the case, with the ever-present threat of more torture to provide the incentive.

        But Freeh was not about to let the torture issue interfere with his mission. “For Louis, if they would let us in the room, that was the important thing,” one former high-ranking FBI official told IPS. “We would have gone over there and gotten the answers even if they had been propped up…”

      • esseff44 says:

        Another can of worms could be the abusive treatment of his youngest brother who was 17 when he was captured. He was interrogated not so much about his activities but those of his older brother Walid. He was 12 when he went to the training camps. The list of things he supposedly did from the age of 12 to 17 is truly mindboggling. What an amazing child! Is he one of the 90 facing indefinite detention without charges or a trial?

        http://en.wikipedia.org/wiki/Hassan_bin_%27Attash

        • esseff44 says:

          Ah, yes, another one of the wunderkinder that can be in so many places at one time. He’s one of those that must be a terrorist because he was captured wearing a Casio watch just like mine and that of hundreds of thousands of other people which is on sale the world over for less than twenty dollars and lasts ten years without a battery change. That’s what they call evidence. I cannot understand how the people who write these accusations up don’t see how foolish they look. It’s like the darkest comedy one could imagine. “money” in translator’s dialect=”tomatoes” in detainees dialect…..so he names all the vegetable stalls when asked where he got the money.

          At least this one has finally been released from GTMO, but it looks like he is still being held in Chad.

  12. bmaz says:

    Speaking of the subject of trials, I would like to comment how nice it is to see today that the Band Is Back Together. I speak of such peerless legal luminaries as Dan Abrams, Lisa Bloom, her clown like mother Gloria Allred, Gerald Posner, Dominic Dunne, Geraldo, Henry Lee, Michael Baden, Greta van Susteren and all those other fine folks that brought us OJ and the Jackson molestation gala events. What giddy times those were!

  13. bmaz says:

    Heh, yeah, but worms in the can IS the problem with most of their evidence. You are right, they can get enough in; but then they get cross examined somewhere where there is a record. Therein lies the problem.

    • MadDog says:

      You mean by having a competent defense counsel and being allowed to use him/her wouldn’t seem fair anymore to the prosecution team?

      I’m shocked. *g*

  14. MadDog says:

    …Is the Administration worried about al-Nashiri’s credibility as a witness? Or–given the weirdness surrounding his waterboarding–is the Administration worried about what al-Nashiri’s testimony (either public or written) would reveal about our own treatment of him?

    Another interesting question would be whether Abu Zubaydah gave up the info before his waterboarding that led to the capture on 9/11/2002 of both Ramzi Binalshibh and Walid bin Attash in Karachi.

    While it might be rewarding to the FBI’s “I told you so” ego, to the folks on the Dark Side (Cheney, Tenet, Mitchell et al.), it would mean not only being criminal, but more importantly, being estúpido!

    This would pound another nail in PapaDick’s coffin wrt torturing folks, but would the Obama Administration be reluctant to go there because it might mean opening up the “legality of torture by Cheney” can of worms that they so adamantly want to politically avoid?

  16. SparklestheIguana says:

    Sorry, this is OT. But WaPo’s ombudsman is addressing Froomkin, in a less namby pamby way than earlier:

    Froomkin Departs, Leaving Angry Loyalists And Questions

    Dan Froomkin’s online White House Watch ended today in The Post, leaving an army of angry followers and a string of unanswered questions about the decision to terminate his contract.

    His release sparked an outcry from a loyal audience built after five and a half years.

    (snip)

    Institutionally, The Post is now responding by circling the wagons — ironic for a news organization that insists on transparency from those it covers.

    (snip)

    when I was able to start querying editors yesterday, a wall of silence was erected.

    http://voices.washingtonpost.c……html#more

  17. Oval12345678akaJamesKSayre says:

    President Obama seems to be trying out the Royal Clothing of the Tyrant Bush and finding out, that hey, these Royal Rags aren’t so bad after all… Hey, you can fool most of the liberals most of the time, they have hardly even noticed that I want to turn the human rights clock back some eight hundred years or so… Hey, I’m still murdering Pakistanis with drones and missiles: war crimes, with hardly a peep out of the peanut gallery. I am still imperially occupying Afghanistan and Iran and folks still approve of me…

    • eCAHNomics says:

      Presidential power is a one-way street. No one who wants the job would ever give up a scinitilla of power already there, and will try to get more.

  18. Jkat says:

    you know .. in the old days .. if we had someone like this .. who we know is guilty ..and who can’t be brought to trial ..and who .. if released will continue to be a danger to us .. there was always the option the bastard would get killed while “trying to escape” ..

    just sayin’ …

    • DLoerke says:

      Now that’s a GOOD idea. Better to either lock him forever in solitary or shoot the SOB….

    • Jkat says:

      yah .. but to paraphrase a “famous statesman” from the past: “how many divisions does the blogosphere have ” ??

      #34 ..our main problem is there is no such thing as “covert ops” anymore .. eventually it all gets loose ..and btw..i’m just making an observation .. not advocating a course of action ..

  19. sporkovat says:

    I know Glenn Greenwald has been a little caustic lately, maybe making (D) partisans a little uncomfortable sometimes, but he posts on the same issue today:

    http://www.salon.com/opinion/g…..index.html

    including this great pullquote:

    There is one point in particular I really want to highlight about all of this:
    There has now emerged a very clear — and very disturbing — pattern whereby Obama is willing to use legal mechanisms and recognize the authority of other branches only if he’s assured that he’ll get the outcome he wants.

    the outcome often being keeping people in cages for life because Dick Cheney or George Bush once pronounced them ‘terrists’.

    Hope-n-Change!®

  21. Mary says:

    Way epu’d but Greenwald in an update links to a Booman post here and Booman spells out a lot of other info and evidence that is available. So the drivel about not being able to make a case without using tortured statements is sounding even more drivel-ly and the “don’t want to have a trial that will expose our war crimes” is looking more solid.

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