The Memorandum of Notification the CIA Pretends Has Never Been Acknowledged

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“We don’t do that sort of thing,” [Glenn Carle responded to a CIA Counterterrorism Center Deputy about “going beyond SERE” with a detainee].

“We do now,” Wilmington’s voice was flat. The conversation remained quiet.

“What about EO12333? We’ve never done that sort of thing. The Agency’d never do that. We’d need a finding, at least.”

[snip]

“We have it.” Wilmington’s manner brightened a little. “We have a letter from the president. We can do whatever we need to do. We’re covered.”

–Glenn Carle, The Interrogator: An Education, approved by CIA’s Publication Review Board prior to its summer 2011 publication

Yesterday, I described how the CIA appears to be refusing to release via FOIA any mention–or even a substitution mention–of references to the September 17, 2001 Presidential Memorandum of Notification the government claims authorizes torture and a bunch of other activities.

In this post I’d like to deal with AUSA Tara LaMorte’s March 9, 2012 claim that what I believe to be the MON has never been acknowledged before.

And that’s important because here, the references to [half line redacted] contained in the OLC memos reveals for the first time the existence and the scope of [1.5 lines redacted] That has never before been acknowledged, and would be acknowledged for the first time simply by revealing [few words redacted] in the OLC memos.

Now, as it happens, the CIA made an extensive declaration about the MON in a statement from Marilyn Dorn, the CIA’s Information Review Officer, back in 2007. The description of it–item 61–starts on page 34.

The declaration is actually pretty funny. ACLU had asked for any declarations signed by the President authorizing the torture program. There is none. So in her declaration, Dorn as much as said this MON–which doesn’t mention interrogation–was the MON in question.

Item No. 61 requested a “Directive signed by President Bush that grants CIA, the authority to set up detention facilities outside the United States and/or outlining interrogation methods that may be used against Detainees.” The CIA did not locate a document signed by President Bush outlining interrogation methods that may be used against detainees. The CIA did locate one document signed by President Bush that pertains to the CIA’s authorization to set up detention facilities outside the United States. The document responsive to Item No. 61 is a 14-page memorandum dated 17 September 2001 from President Bush to the Director of the CIA pertaining to the CIA’s authorization to detain terrorists.

So in response to ACLU’s FOIA, which basically said, “give us the legally-required MON that authorized torture,” Dorn said, “we don’t have one, but here’s what we’ve been using for all these years.” That’s pretty significant acknowledgment of what kind of authorization underlies the torture program.

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The CIA Continues to Cover Up Bush’s Authorization of Torture

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Reading the unredacted sections of this ex parte hearing on the ACLU’s torture FOIA leads me to suspect the CIA is trying to keep hidden all mention of Bush’s September 17, 2001 Memorandum of Notification authorizing a range of counterterrorism activities.

Take a look, first of all, at the discussion about Judge Alvin Hellerstein’s problems treating something that is redacted in the “second and fourth” OLC memos as an Exemption 3 sources and methods withholding. He objected, apparently, because the redacted information was not a method, but instead the source of authority.

Judge Carney: Judge Hellerstein rejected the characterization of that as a method, and said instead this is a source of authority.

[snip]

JUDGE CARNEY: I have a follow up, if I may.

So if I understand the government’s position, your position Is the material redacted from the second and fourth OLC memos was properly exempt under Exemption 1, and that Judge Hellerstein’s ruling then was somewhat incomplete in that he rejected and demanded that you use an alternative characterization under–he rejected it under Exemption 3. He was saying this was, a source of authority, not a method.

[snip]

MS. LA MORTE: I don’t recall an expressed ruling in the transcript about Exemption 1. I think what Judge Hellerstein’s thought process was, was that this was a source of authority, and that’s it, not an activity, not a method.

Now, we know what the source of authority for the torture program was thanks to reporting on it–it was purportedly authorized by Bush’s September 17, 2001 Memorandum of Notification. Here’s how the NYT described it as early as 2006.

According to accounts by three former intelligence officials, the C.I.A. understood that the legal foundation for its role had been spelled out in a sweeping classified directive signed by Mr. Bush on Sept. 17, 2001. The directive, known as a memorandum of notification, authorized the C.I.A. for the first time to capture, detain and interrogate terrorism suspects, providing the foundation for what became its secret prison system.

LaMorte’s descriptions introducing these particular OLC redactions make it fairly clear that the authorization in question is the one that authorized the capture and detention of top Al Qaeda figures–that is, the September 17 MON.

Ms. La Morte: [In response to a question about sources and methods redactions] That’s absolutely correct. So, for example, in the OLC memos, [1.5 lines redacted] So that program was a program where the CIA was authorized to capture international terrorists abroad, detain them in foreign countries, and interrogate them using not only standard methods but enhanced interrogation techniques.

But that detention, that CIA detention and interrogation program, was a program that [3 paragraphs redacted]

I love how she makes a point of calling this a “CIA detention and interrogation” program; we know that the finding that authorized the program actually didn’t lay out the interrogation program. She seems awfully concerned about insisting that the MON authorized not just capture and detention, but also interrogation; I’ll explain a likely source of her concern in a follow-up post.

She goes on to suggest that if these passages in the OLC memos were revealed, it would amount to the first time this content–presumably the Presidential MON–were revealed.

And that’s important because here, the references to [half line redacted] contained in the OLC memos reveals for the first time the existence and the scope of [1.5 lines redacted] That has never before been acknowledged, and would be acknowledged for the first time simply by revealing [few words redacted] in the OLC memos.

I’ll rip this claim to shreds in a subsequent post. But for the moment I’d like to point to what I think are the redactions in question.

As noted above, Judge Carney said these redactions are in the second and fourth OLC memos. As part of the same exchange, Judge Richard Wesley makes it clear they are in one of the March 10 and the March 30 memos.

Page 29 of the March 10, 2005 Techniques memo includes this passage:

Interrogators (and other personnel deployed as part of this program) are required to review and acknowledge the applicable interrogation guidelines. See Confinement Guidelines at 2; Interrogation Guidelines at 2 (“The Director, DCI Counterterrorist Center shall ensure that all personnel directly engaged in the interrogation of persons detained pursuant to the authorities set forth in [half line redacted]

And in addition to the large redactions on page 4 and 5 of the March 30, 2005 CAT memo–which appear to provide general background on the torture program and therefore might address authorization–page 7 includes a reference to the same Tenet Guidelines.

Any interrogation plan that involves the use of enhanced techniques must be reviewed and approved by “the Director, DCI Counterterrorist Center, with the concurrence of the Chief, CTC Legal Group.” George J. Tenet, Director of Central Intelligence, Guidelines on Interrogations Conducted Purusant to the [half line redacted].

Here’s the Guidelines on Interrogation in question. You will be thoroughly unsurprised the authorities referenced in the title, as well as most of the paragraph that lays out those authorities, are redacted.

As I noted, I will have a follow-up post or two on this one. But it appears that amid the big argument whether waterboarding is an intelligence method or not is one the CIA is fighting just as aggressively: whether or not it has to reveal the already widely-reported fact that George Bush unilaterally authorized all this torture on September 17, 2001.

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Obama Takes a Position to the Right of Congress on Indefinite Detention

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Back when I reported on Obama’s stated intent to interpret the good part of the NDAA–the part requiring a meaningful review for all detainees held by DOD–to mean DOD could decide how long to hold people before it gave them the review mandated by Congress, I complained that Obama would hold detainees more than 6 months before granting detainees this review.

In addition, this says DOD gets to decide how long new detainees will have to wait before they get a status review with an actual lawyer–and Congress is perfectly happy making them wait over six months before that time.

Obama seems to have taken that language and pushed it further still: stating that DOD will get broad discretion to decide which reviews will carry the requirement of a judge and a lawyer.

It sort of makes you wonder why the Obama Administration wants these men to be held for over six months with no meaningful review?

It turns out I was far, far too optimistic. As Daphne Eviatar reports, Obama plans to hold detainees for three years before giving them this congressional mandated review.

On April 5, the Defense Department quietly sent a report to Congress indicating how it intends to implement a new law requiring lawyers and judges for detainees held in long-term U.S. military custody. As expected, DoD largely wrote the new rights out of existence, ensuring they’d be accorded to few, if any, detainees. What’s more, it severely limited the scope of judicial review even that small number will receive.

[snip]

Here’s how it works. According to the new regulations:

The combatant commander with responsibility for the theater of operations in which the unprivileged enemy belligerent is detained will ensure that a determination by the DRB or analogous review that the 1024(b) process is applicable is made as soon as practicable but not later than 18 months after the detainee is captured by, or transferred to the custody and control of, the Department of Defense. Additionally, the combatant commander will ensure that a Section 1024(b) review is conducted as soon as practicable after such a determination is made, but not later than 18 months after such a determination is made.

Eighteen months plus 18 months equals three years. So any newly-captured suspect is not entitled to a hearing by a military judge and represented by military defense counsel until three years after his initial detention.

What’s more:

A military judge will conduct a hearing for the purposes of determining whether the detainee is a covered person as defined in subsection (b) of Section 1021 of the Act. The review will be limited to this status determination; it will not include an assessment of the level of threat the detainee poses, nor will it serve as a substitute for the judgment of the combatant commander as to the appropriate disposition of a detainee lawfully detained by the Department of Defense.

In other words, the judge will decide only if the suspect is appropriately classified as an “unprivileged enemy belligerent” — that is, any person “who was part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” The judge will not decide whether that person actually poses a threat to U.S. forces. Yet under international law, that’s a critical part of determining whether someone can be lawfully detained in a war against insurgent groups. That critical determination will continue to be made secretly by a military commander in the field, not by the more neutral judge following an open hearing.

Someone who did laundry, cooked meals or provided medical assistance for a member of al Qaeda, the Taliban or unidentified “associated forces” could therefore continue to be detained indefinitely even after his judicial review if the commander deems him dangerous. And the commander doesn’t have to explain that decision to anyone. [my emphasis]

Those Bedouin women and children we killed in a missile strike and then excused our war crime by saying the Bedouins had been selling AQAP? They’re the kind of people that this order would include.

So in response to Congress–Congress!!!!–trying to put all our military detainees on some kind of legitimate legal footing, Obama (the guy who ran on closing Gitmo), basically blew them off and embraced still more indefinite detention.

Prediction: Latif Will Be Repatriated

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The WaPo reports that the US is finally trying to resolve the cases of 50 non-Afghans we’ve had stashed at Bagram. It focuses on two Yemenis who may be repatriated.

The government of Yemen has agreed to closely monitor two Yemenis held by the U.S. military in Afghanistan if they are repatriated, and attorneys for the men asked the Pentagon on Monday to authorize the transfer of the two detainees.

Amin al-Bakri, 44, and Fadi al-Maqaleh, 26, have been cleared for release by military detainee review boards on three occasions, beginning in 2010, according to Pentagon records.

Now, these aren’t just any prisoners. They’re two of the three Bagram prisoners who tried to challenge their detention by filing a habeas corpus petition. And while the DC Circuit overturned their case, it remains alive based on the question of whether the US moved them to Bagram to ensure they’d be on an “active battlefield” where the government could deny habeas review. As Lawfare has suggested, one reason the government might want to transfer al-Bakri and al-Maqaleh is to be able to move to dismiss their case–to be able to prevent any expansion of legal review beyond GItmo.

Well, if the government is negotiating transfers of Yemeni prisoners they had already cleared for release, what are the chances they’re also negotiating transfers of Yemeni prisoners cleared for release who present even bigger legal problems for the government, like Adnan Farhan Abd al-Latif?

Latif’s SCOTUS appeal, after all, should be a slam-dunk. If habeas is to be remotely meaningful, the government can’t be permitted to just submit whatever obviously flawed intelligence document it wants, without some corroborating evidence, to justify imprisoning someone. Nevertheless, if Latif wins at SCOTUS, then all the habeas victories the government has won from a DC Circuit that has tried to undermine Boumediene at every turn could be lost.

And it would be just like the Imperial Bush-Obama continuum to resolve an important detention case to avoid SCOTUS review.

So I predict that if SCOTUS grants Latif cert, he, like al-Bakri and al-Maqaleh will be whisked off to Yemen to avoid any return of real review on the President’s authority.

Mind you, I wish all these men (who have never been charged) will be released from imprisonment the government says is unnecessary. I just suspect the government will do so in a way that keeps others imprisoned.

The US and Afghan National Army Become Partners on Night Raids

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Yesterday, the US and Afghanistan drew closer to an agreement on night raids. Not only would the deal give Afghan courts veto power over the raids (though, in some cases, the raids could be approved after the fact), but it makes Afghan military personnel the lead in any night raids.

Under terms of the proposed accord, night operations by special forces would be subject to review by Afghan judges. The deal, which people familiar with it said could be signed later this week, would also give Afghan forces the lead in all the operations.

Also yesterday, General Sher Mohammad Karimi, who is not only the lead investigator into the Panjwai massacre, but is also the Afghan army chief and a graduate of several Special Forces courses at Fort Bragg, announced that he had spoken with two witnesses who said just one soldier came to their house on March 11.

Afghan army chief Gen. Sher Mohammad Karimi, whom Karzai sent to Kandahar to investigate the massacre, told McClatchy that two survivors he interviewed offered credible accounts that the killings were the act of a lone person.

“They told me the same thing,” Karimi said. “They both said there was (only) one individual who came to their house.”

Now, there are more than two witnesses to the killings. Though there are more surviving witnesses from Alkozai than there are from Najiban, where all the people in Mohmmaed Wazir’s home were killed, and where Mohammad Dawood’s children have said just one individual “came to their house” but more were standing outside with lights on. It would be fairly easy to find two witnesses from Alkozai to say there was just one killer–as most evidence suggests there was–but harder to find two adult witnesses to say much of anything about what occurred at Najiban (though Dawood’s wife and Agha Lala appear to agree there were multiple men at the village), which is where evidence suggested there was more than one killer but which is also where almost all the adult witnesses are now dead.

Add in the fact that Karimi explicitly states that he hopes there is just one killer.

Karimi said a joint Afghan-U.S. team was continuing to investigate the killings and hoped to collect more forensic evidence.

“I hope it is proved that it is one guy,” he said.

And that Karimi hasn’t been permitted to speak with Sergeant Bales, and this statement should be taken at face value.

The guy who just got put in charge of American Special Forces running night raids in Afghanistan (the same ones who might be implicated if more than one person was present at Panjwai) has stated he found two witnesses who say only one man came in their house the night of the killing.

There’s one more detail that’s interesting about yesterday’s developments. According to the WSJ, there’s still a dispute about what happens to those Afghans captured on night raids.

Officials had expected the deal could be signed as soon as Wednesday. But a last-minute disagreement arose over how long U.S. forces would be allowed to hold Afghan detainees picked up in joint Afghan-American special-operations night raids. The U.S. wants to be able to question detainees to try to glean intelligence about militant networks and activities. The Afghans want control of the detainees.

On Monday, with some fanfare, the US congratulated the guy who is now purportedly in charge of Afghan Detention Operation Command.

Top U.S. military and diplomatic officials in Afghanistan offered their congratulations yesterday as an Afghan officer took charge of Afghan Detention Operations Command.

Marine Corps Gen. John R. Allen, commander of the International Security Assistance Force and U.S. forces in Afghanistan, joined U.S. Ambassador to Afghanistan Ryan C. Crocker in congratulating Maj. Gen. Faroq Barekzai on his assumption of command at a ceremony held in Parwan, Afghanistan.

Afghan President Hamid Karzai appointed Barekzai to his new position March 28, officials said.

“Today’s event is nothing short of monumental when looking at the significance of Major General Barekzai’s assumption of command and the responsibilities he assumes for the Afghan people and his nation’s justice system,” Allen said at the ceremony. “This is a symbolic and visible step marking the progress we continue to make in partnership with the Afghan government as we work to develop and uphold the sovereignty they rightfully deserve.”

Officials said the ceremony marked the first step of an agreed-upon process that will give the Afghan defense ministry full control of the detention facility within six months while protecting U.S. international and domestic legal obligations regarding detainees. Under the terms of a memorandum of understanding signed March 9, the United States will provide ongoing support and advice to the Afghan commander for up to one year.

“This assumption of command marks another step in the transition to Afghan control of security and is a sign of our support for Afghan sovereignty, as well as our commitment to an enduring partnership,” Crocker said. [my emphasis]

Yeah, there’s that bit about us hanging around for a year as “advisors.” But if this truly is “nothing short of monumental” (man is General Allen one superlative ass-kisser), then why, two days later, did we say we don’t actually want to hand over detainees?

And if General Barekzai is in charge of the detention system we don’t want to hand over detainees into, then where do we intend to question these detainees? FOBs?

In short, there’s a whole lot of kabuki going on, at least with regards to the “sovereignty” we’re devolving to Afghans, and possibly with respect to the Panjwai massacre.

Remember When that “Recidivist” Jabir al-Fayfi Saved American Lives?

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It’s recidivist season again, when the DNI releases data about how many Gitmo detainees have “reengaged” and fear-mongering reporters (including, uncharacteristically, Mark Hosenball) then describe how many “recidivists” from Gitmo there have been.

Of course, even while DNI brags about how detailed the new numbers are, they are just that. A list of numbers: 12, 28, 52, 0, 0, 3, with just the following description of what DNI considers “reengagement” (or, of course, engagement for the first time, but no one wants to admit that throwing someone innocent in Gitmo for a decade might radicalize someone) in terrorism.

Definition of “Terrorist” or “Insurgent” Activities. Activities such as the following indicate involvement in terrorist or insurgent activities: planning terrorist operations, conducting a terrorist or insurgent attack against Coalition or host-nation forces or civilians, conducting a suicide bombing, financing terrorist operations, recruiting others for terrorist operations, and arranging for movement of individuals involved in terrorist operations. It does not include mere communications with individuals or organizations—including other former GTMO detainees—on issues not related to terrorist operations, such as reminiscing about shared experiences at GTMO, communicating with past terrorist associates about non-nefarious activities, writing anti-U.S. books or articles, or making anti-U.S. propaganda statements.

Without a list of actual names, no one can check DNI’s claims or–as I did when the House Armed Services Committee last engaged in this game–point out that someone who once was claimed to be a recidivist, Mazin Salih Musaid al-Awfi, had actually infiltrated AQAP, and then returned to Saudi Arabia to provide lots of intelligence on the organization.

So let me remind the fear-mongers of another so-called recidivist who provided key intelligence: Jabir al-Fayfi. At least according to the claims made about the plot he tipped off, the toner cartridge plot could have caused real damage to airplanes or, possibly, the American synagogues to which the toner cartridges had been sent.

Jabir al-Fayfi, who surrendered to Saudi authorities on 16 October, told officials about the plan by al-Qaida in the Arabian Peninsula (Aqap), the Yemen-based terror cell of which he was a member.

US officials said earlier that an alert from Saudi Arabia led to the interception of two explosive devices on planes, hidden in packages addressed to Chicago-area synagogues, travelling via Britain and Dubai.

And yet two years ago, the fear-mongers would have been pointing to him as proof that no one should ever leave Gitmo.

Mind you, I’m not supporting the use of prison camps to coerce people to spy for us, though clearly this recidivism fear-mongering should at least acknowledge we did that in some cases.

And I’m not saying an assessment of our release decisions and practices should get no review. Not only is it worthwhile to track under what circumstances people engage or re-engage in terrorism after having been held in a prison camp for long periods, but I suspect a review of which detainees our allies asked for and why might raise some interesting questions (in one case I will probably show at more length some time, a Saudi detainee was only slotted for transfer after DOD started claiming he had ties to Lashkar-e-Taiba).

But I remind that, at least in Fayfi’s case, a so-called recidivist saved lives because of the context (as described by Hosenball) of this particular recidivist season: the discussion about releasing five members of the Taliban as part of a larger peace deal.

The increase in the apparent recidivism rate, while not large, comes at a delicate time for President Barack Obama, and could further complicate his attempts to negotiate a peace deal with Taliban insurgents in Afghanistan.

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An Interesting Day at Gitmo

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While I actually think these two item are coincidental, note two things that happened on the Gitmo front yesterday.

First, contrary to the claims of Gitmo prosecutors made last month, no inmate ever got a copy of Inspire. Thus, the entire excuse for intervening in the attorney-client communications of Gitmo detainees turned out to be ungrounded.

“We caught it before it went into the camps,” Rear Adm. David B. Woods said, adding that Guantánamo prison camp staff intercepted a copy of the now defunct glossy English-language publication in a routine incoming mail scan.

The circumstances are bizarre because on Jan. 18, a war court prosecutor used the discover of the magazine to justify Woods’ new policy of having contractors scan the privileged legal mail of Military Commission attorneys. “There was material getting in, like Inspire magazine,” said Cmdr. Andrea Lockhart.

[snip]

Curiously, Woods said he did not know precisely when the episode happened.

But he said he was certain it did not occur during his nearly six-month tenure as prison camps commander.

Moreover, he said, the sender’s identity was on the package and that person was “counseled” against sending “that kind of information.” The sender was still having contact with the camps after what the admiral called an “attitude adjustment of what is informational contraband.”

Also yesterday, the guy who will replace the Woods, who put the new communications process into place (a judge has since revised them) was formally announced.

Rear Adm. (lower half) John W. Smith Jr. will be assigned as commander, Joint Task Force Guantanamo, U.S. Southern Command, Guantanamo Bay, Cuba.  Smith is currently serving as deputy commander, Joint Interagency Task Force, U.S. Southern Command, Key West, Fla.

Here’s a biography for Smith.

Again, I think it’s just a coincidence both these stories came out yesterday. But it’s an interesting coincidence nevertheless.

One more Gitmo related story I hope to return to is this piece from Jeff Kaye, which provides details from the autopsy reports of two detainees alleged to commit suicide. One of the two, for example, was found in solitary confinement with his hands bound, yet the government claims he hanged himself.

Al Amri’s autopsy states that the “male civilian detainee” was “found hanging by his neck in his cell with a ligature made of braided strips of bed sheet. By report, similar fabric bound his hands loosely behind him.”

Note, these two deaths are separate from the three suspicious “suicide” deaths on June 9, 2006.

Like I said, I hope to return to Jeff’s piece, but in the meantime, do read it yourself.

Cheney’s Torture Apologist Complains Cheney’s Torture Program Necessitates Plea Deals

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As I suggested the other day, the news that Majid Khan has negotiated a plea deal raises interesting questions about why the government decided to offer him one.

What I haven’t seen anyone explain, however, is why the government has suddenly offered Khan a plea deal. It suggests they either can’t build a case against him themselves–a possibility given that they’re charging him for an assassination attempt that apparently involved no bomb–or that they’ve decided they don’t have enough untainted evidence against Khalid Sheikh Mohammed and the other 9/11 plotters without someone like Khan testifying. It further suggests they don’t want to rely on Khan’s own testimony given in custody, probably because that, too, is tainted.

That seems to be what has happened. As Jason Leopold reported last week, Gitmo’s prosecutors are, indeed, newly negotiating plea deals with detainees as a way to get untainted evidence.

There are still 171 detainees imprisoned at Guantanamo. More than half have already been cleared for release. Thirty-six are expected to face war crimes charges and the remainder were deemed by an Obama administration task force as being too dangerous to release or too difficult to prosecute because the evidence against them was obtained through torture.

Martins, who became chief prosecutor in October, has informed his staff, according to another email written by the same military prosecutor, that he is interested in obtaining information about detainees he intends to prosecute that will help the government secure convictions. The detainees who cooperate with the prosecution and show a willingness to testify against other prisoners, in a manner that “pleases” the government, would receive plea deals for the terrorist-related crimes they are accused of and could eventually be repatriated to another country.

“Proffer” sessions have already taken place between some defense attorneys and detainees, where the prisoners have discussed what evidence they can offer the prosecution for use in war crimes trials, the prosecutor’s email says.

Leopold goes on to describe Khan’s plea deal in this context (though none of his lawyers have confirmed this is what’s going on).

Predictably, Cheney’s chief torture apologist, Marc Thiessen, is outraged that Gitmo prosecutors are trying to undo the damage that Cheney’s torture program did.

The United States has reportedly offered a plea deal to Majid Khan — a hardened al-Qaeda terrorist and close associate of Khalid Sheikh Mohammed — that could see him released from Guantanamo Bay within a few years.

Giving this killer a reduced sentence is outrageous. Khan is no run-of-the-mill terrorist. He was directly subordinate to KSM and was selected by the 9/11 mastermind to conduct terrorist operations inside the United States.

[snip]

He had been charged with war crimes, including murder, attempted murder, spying and providing material support for terrorism — all of which could have earned him a life sentence. Instead, he might now be released.

For what? Under the reported deal, Khan has agreed to testify against his fellow terrorists during the next four years at Guantanamo, after which he would then be eligible to be transferred to Pakistan. Khan knows a great deal about KSM and the core 9/11 conspirators — but it is hard to believe that his cooperation and testimony are really necessary to convict those terrorists. Read more →

Our Detention Authority Branches Out beyond Al Qaeda

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It was pretty inconsiderate of Charlie Savage to break the news that the US had filed military commission charges against Ali Musa Daqduq the day after Jeh Johnson gave a speech emphasizing how our detention authority is restricted to those associated with al Qaeda.

But, the AUMF, the statutory authorization from 2001, is not open-ended.  It does not authorize military force against anyone the Executive labels a “terrorist.”  Rather, it encompasses only those groups or people with a link to the terrorist attacks on 9/11, or associated forces.

While Daqduq does, by all accounts, have ties to Hezbollah, there’s no allegation in the charges sheet that he had any ties to al Qaeda.

Now, I don’t dispute that Daqduq could be charged (or could have been, while we were still at war–oh wait, that Iraq AUMF will never be repealed!) for violating the laws of war. What I’m interested in is how the government implicated the various Shia groups with which Daqduq allegedly conspired.

Most of Daqduq’s charges–the murder, attempted murder, intentional bodily injury, and attempted kidnapping of some American soldiers–don’t mention any other people or organizations. Nor do the treachery and spying charges.

The charge of terrorism charges Daqduq alone–he’s a terrorist because he engaged in an act evincing wanton disregard for human life. Which is consistent with the way the Iraq AUMF defines terrorism, but not the way the GWOT one does.

The material support for terrorism charge does name others, though–the Shia group Asa’ib Ahl al-Haqq, which broke off from the Mahdi army in 2004:

In that Ali Musa Daqduq al-Musawi, an alien unprivileged enemy belligerent subject to trial by military commission, did, between about May 2006 and about January 2007, at various locations in Iraq and Iran, in the context of and associated with hostilities, provide material support and resources to be used in preparation for and in carrying out an act of terrorism against U.S. forces in Iraq, knowing or intending that such material support and resources were to be used for that purpose, to wit: advice, training and planning to Qays al-Khazali, Layth al-Khazali, and other members of Asa’ib Ahl al-Haqq, known and unknown, for the purpose of killing or inflicting great bodily harm upon one or more protected persons in or near Karbala, Iraq, on or about 20 January 2007.

Asa’ib Ahl al-Haqq is neither–and I don’t believe it was–on the State Department’s Foreign Terrorism Organization list nor sanctioned by Treasury. And last month it agreed to enter Iraq’s political process. Read more →

Majid Khan to Accept Plea Deal

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The WaPo confirms what a lot of people have been speculating: Majid Khan will accept a plea deal.

In recent days, Khan, a Pakistani citizen who was a legal U.S. resident, was moved out of the top-security Camp 7, which houses the high-value detainees, in anticipation of an arraignment next week at which he will enter a guilty plea, said the officials, speaking on the condition of anonymity in advance of the hearing.

Khan has agreed, if requested, to testify at military commission trials in the next four years, and he would then be eligible to be transferred to Pakistan at some point after that, the officials said. Khan has a wife and daughter in Pakistan.

The officials would not specify the amount of time Khan would serve if he fulfilled his obligations under the agreement.

What I haven’t seen anyone explain, however, is why the government has suddenly offered Khan a plea deal. It suggests they either can’t build a case against him themselves–a possibility given that they’re charging him for an assassination attempt that apparently involved no bomb–or that they’ve decided they don’t have enough untainted evidence against Khalid Sheikh Mohammed and the other 9/11 plotters without someone like Khan testifying. It further suggests they don’t want to rely on Khan’s own testimony given in custody, probably because that, too, is tainted.

Though they must not be close to trying the 9/11 plotters, given that Khan will have to stick around for four years to testify, if needed.

But I’ll make a prediction. I bet Khan will do less time–for his empty suicide vest and for couriering money for terrorist plots-than Amine el-Khalifi, the guy with a similarly empty suicide vest who thought he was going to strike the Capital last week. If that’s true, it won’t be clear whether to blame it on the torture or the inadequate military commissions.