Majid Khan Charged with Musharraf Assassination as Musharraf Accused of Sheltering Bin Laden

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As Carol Rosenberg first reported, the government charged former US resident Majid Khan in Gitmo’s military commission on Monday. One of those charges–attempted murder in violation of the laws of war–pertains to his alleged attempt to assassinate Pervez Musharraf on March 8, 2002.

In that Majid Shoukat KHAN, a person subject to trial by military commission as an alien unprivileged enemy belligerent, did, on or about March 8, 2002, at or near Karachi, Pakistan, in the context of and associated with hostilities, intentionally and unlawfully attempt to kill Pakistani President Pervez Musharraf in violation of the law of war, by wearing a vest containing an improvised explosive device and traveling to a mosque where he expected President Musharraf to be with the intention of detonating the vest and killing President Musharraf, which actions amounted to more than mere preparation and apparently tended to effect the commission of the offense of Murder in Violation of the Law of war.

That’s pretty ironic given that the same day Rosenberg reported the Khan charges, the Daily Beast reported an accusation, made by the former head of Pakistan’s ISI, Ziauddin Khawaja, that Musharraf knew one of his close allies was sheltering Osama bin Laden.

Ziauddin says that the safe house in Abbottabad was made to order for bin Laden by another Pakistani intelligence officer, Brig. Gen. Ijaz Shah, who was the ISI bureau head in Lahore when Musharraf staged his coup. Musharraf later made him head of the intelligence bureau, the ISI’s rival in Pakistan’s spy-versus-spy wars. Ziauddin says Ijaz Shah was responsible for setting up bin Laden in Abbottabad, ensuring his safety and keeping him hidden from the outside. And Ziauddin says Musharraf knew all about it.

Ziauddin first made the accusation last October.

I’m sure time will sort out both these accusations. But it sure doesn’t make (much) sense that Khan was trying to kill Musharraf at the same time as Musharraf was watching a close ally construct a compound for OBL.

Although maybe it explains how Musharraf knew not to show up on the day Khan allegedly waited for him wearing a suicide belt.

Update: Alternately, if KSM sent Khan with a “suicide vest” containing no explosives to a location where Musharraf was not scheduled to appear, would it really amount to an assassination attempt? This is from Khan’s Gitmo file, and appears to be based on his interrogation in CIA custody from 2004.

Detainee said he checked the vest and did not see any explosives inside, and also noticed there was no increase in security at the mosque as would be expected during a presidential visit.

Exploitation: How a “Recidivist” became a Double Agent

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The Republicans are at it again: collecting lists of former Gitmo detainees they deem to have “returned to combat” and using those lists to fear-monger against transferring prisoners out of Gitmo.

Here’s the report the Republicans on the House Armed Service Investigations Subcommittee put out; here’s an excellent rebuttal from the Democrats, here’s Adam Serwer, and here’s Charlie Savage.

Subcommittee Ranking Member Jim Cooper summarizes,

The report was supposed to be a comprehensive and bipartisan look at former GTMO detainees, but fails at both objectives. Much of the failure is due to the majority’s insistence on releasing a public report during an election year. The majority is well aware that most of the relevant material is classified and politically sensitive. To their credit, committee staff did do a workmanlike job on the classified annex, which we recommend to all members. But the public report uses a highly problematic “methodology” in order to write ghost stories designed to scare voters. Americans deserve better.

Reports on terrorism should not further the terrorists’ goal of spreading fear. After all, terrorism is a double-barreled attack on civilization: violence is one weapon and publicity of that violence is another. Without publicity, the terrorist can never succeed. Regrettably, this report gives former GTMO detainees publicity by making them seem more numerous and dangerous than they are. Reengagers will like their image in the report.

[snip]

The report concludes that, despite the admitted improvements in the Obama Administration’s handling of detainee issues, the number of former detainees who return to terrorism will be as high or higher. This is purely speculative, and seems politically motivated. Time will tell, but the current rate of confirmed reengagement of transferees under the Obama Administration is closer to 3%, not the report’s cover graphic of 27%. The lower figure does not, however, make headlines.

I will have more on the report later. But I wanted to point out one detail about how the propaganda list of who is a “recidivist” and who isn’t changes.

In the April 2009 list leaked to ruin Obama’s efforts to close Gitmo, the Saudi former detainee Mazin Salih Musaid al-Awfi was listed second on the list of those “confirmed” to have “reengaged” in terrorism along with Said al-Shihri.

Abu Sufyam al-Asdi al-Shihri–repatriated to Saudi Arabia in November 2007, and Mazin Salih Musaid al-Alawi al-Awfi–repatriated to Saudi Arabia in July 2007. On 24 January, a 19-minute video was released wherein al-Shihri and al-Awfi announced their leadership within the newly established al-Qaida in Arabian Peninsula.

But in this week’s list, al-Shihri appears all by himself (though still second on the list).

Said al-Shihri 17 (ISN 372) was transferred in November 2007 to the Prince Mohammed bin Nayef Centre for Care and Counseling (also known as Care) in Saudi Arabia.18 This is an initiative, operated by the Saudi government, meant to rehabilitate those believed to be terrorists.19 However, after completing the portion of the program requiring him to reside at the Care facility, al-Shihri left Saudi Arabia for Yemen despite putatively being barred from foreign travel. In addition to raising questions about the Saudi government’s ability to enforce travel restrictions on former detainees, al-Shihri’s arrival in Yemen allowed him and another former GTMO detainee to assume leadership of the newly established al-Qa’ida in the Arabian Peninsula (AQAP).20  They released a video announcing their roles.21 [my emphasis]

The report invokes al-Awfi, but don’t name him or explain why they don’t consider him among those “confirmed” to have returned to extremism.

Maybe this is why:

Mohammed al-Awfi’s is an extraordinary story. He went through the rehabilitation programme like the others from Batch 10, but then fled to Yemen where he starred in the al-Qaeda launch video.

Astonishingly al-Awfi later re-crossed the border into Saudi Arabia and gave himself up.

I have never understood why he did so.

The Saudis told me it was because he had received a phone call from his wife telling him to return to look after her and the children.

The explanation caused me to raise a quizzical eyebrow. I was told it is not unknown for the Saudis to use families as bait.

Al-Awfi is now living in luxury accommodation in Riyadh’s top security prison where he is being drained of every scrap of intelligence.

He has all the comforts of home, a well furnished flat and regular visits by a grateful and relieved family.

I can’t guarantee al-Awfi was working as a double agent–presumably like that other “rehabilitated” Saudi detainee who joined AQAP only to return to Saudi Arabia to dump key intelligence, Jabir al-Fayfi–the whole time. But it sure does look like it.

Which means among the former detainees whose story fearmongers used in 2009 to argue against closing Gitmo was, probably, a double agent collecting intelligence on what became AQAP.

For all we know, the Subcommittee may be doing the same again now–claiming people have “returned to action” when they haven’t, exactly. In fact, it’s not even clear they know for sure that their “returned fighters” are what they claim. The folks who might know best–the CIA–refused to cooperate with this report.

The committee believes the Central Intelligence Agency may have been able to provide additional insight on reengagement issues and resolve factual discrepancies identified during meetings with U.S. officials abroad. Headquarters representatives from the CIA declined requests, made at the behest of the subcommittee chairman and ranking member, to meet with staff. This impaired the committee’s efforts to evaluate fully this topic.

Which highlights how brilliant it was to recruit double agents at Gitmo (if you want to sustain the fear of terrorism). If successful, recruits might serve double duty, both infiltrating al Qaeda and providing intelligence, and serving as (apparently false) examples of how dangerous this foe really is.

Osama bin Laden: “The ship of Ali Abdullah Saleh is the only ship we have”

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In May 1999, some Yemeni al Qaeda affiliates planned a series of car thefts to fund a rescue attempt of one of their members who had been sentenced to death. The Yemeni government discovered  the plot and raided an al Qaeda safe house. Osama bin Laden’s sometime bodyguard, Abu Jandal, was one of the men questioned by authorities. As authorities continued to pursue the case, Abu Jandal decided to return to Afghanistan and bin Laden. After he told OBL of the raid and explained it had to do with planned theft, not a crackdown on larger al Qaeda operations, according to Ali Soufan’s Black Banners,

“That is good to hear,” bin Laden said, and a look of calm relief passed over his face as he invoked the president of Yemen: “The ship of Ali Abdullah Saleh is the only ship we have.”

Since that time, of course, Al Qaeda bombed the USS Cole while it was arriving in Yemen. Abd al Rahim al-Nashiri was eventually caught, tortured in a black site, brought to Gitmo, and charged for the Cole bombing.

Saleh, for his part, recently came on his own “ship” to the US for medical treatment (and to escape increasing opposition to his rule).

And so, given the ready accessibility of a witness who might testify to Yemen’s close relations with al Qaeda at the time of the Cole bombing, al-Nashiri’s defense team asked to subpoena Saleh. But the State Department is having none of it.

Yemeni President Ali Abdullah Saleh is in the United States with full diplomatic immunity, Secretary of State Hillary Clinton’s legal advisor has written the Pentagon, and should not be compelled to provide sworn testimony for the Guantánamo war court.
State Department Legal Advisor Harold Hongju Koh wrote the letter Monday to the Pentagon’s chief war crimes prosecutor, Army Brig. Gen. Mark Martins, opposing a request for a subpoena by lawyers for an alleged al Qaida bomber facing a tribunal at the U.S. Navy base in southeast Cuba.

[snip]

But Nashiri defense lawyer Richard Kammen said there’s public evidence that Saleh “sought to limit the investigation of the Cole bombing,” that “he personally handled evidence” and “members of his government are alleged to be complicit in the Cole bombing.”

I presume the government will have their way, here–after all this is a Gitmo military commission, not a civilian court.

But I also imagine this concern for Saleh’s diplomatic immunity comes as much from a desire to hide just how close Saleh has been with al Qaeda, given our subsequent reliance on him as a counterterrorism partner.

Government Awards $35 Million Contract to Expand Parwan Prison

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The Obama Administration insists that it wants to close Gitmo, but Congress is preventing them from doing so.

They rarely talk about the other big detainee prison–the one with significantly less transparency and due process than exists at Gitmo: Parwan prison in Bagram.

Perhaps that’s because we’ve just awarded a $35 million contract to expand that prison for the second time in Obama’s Administration, this time to add 2,000 beds.

The U.S. Army Corps of Engineer (USACE) Middle East District has a requirement to construct detainee housing capability for approximately 2000 detainees in Parwan, Bagram Airfield, Afghanistan. Primary facilities include detainee housing, guard towers, administrative facility and Vehicle/Personnel Access Control Gates, security surveillance and restricted access systems. Primary power will be tie into the Bagram electrical distribution grid. Backup power will be provided by generators. Supporting facilities include site preparation, utilities, sidewalks, access road, lighting, and information systems. Anti-terrorism/Force Protection measures will be included. The project will be delivered using a design-build approach. All work identified in the Scope of Work shall be completed within 369 calendar days from award.

And remember: Obama’s NDAA signing statement suggested that the Administration would push the requirement under Section 1024 to give detainees meaningful reviews of their detention (the Administration suggests it will hold detainees for more than 6 months before giving such a meaningful review).

So yes, it is nice the Administration intends to close Gitmo. But I’d prefer if it stopped expanding our prison capacity in general.

Michael Hayden’s Risky and Edgy Schadenfreude

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I’ve long suspected the reason Republicans have pursued Fast and Furious so relentlessly–and more importantly, have tried to implicate Eric Holder in it personally–is to exact revenge on the Attorney General because he deigned to investigate torture.

This disgusting bit of dick-wagging from Michael Hayden only reinforces that suspicion.

Schadenfreude — joy at the misfortune of others — is a bad thing.

So I’ve been trying to resist temptation these past months as I watch Attorney General Eric Holder deal with public and congressional reaction to the “Fast and Furious” scheme, the failed attempt by the Bureau of Alcohol, Tobacco, Firearms and Explosives to seed and then track U.S. firearms to Mexican drug cartels.

[snip]

But any personal instinct toward some common “executive branch” empathy for Holder is muted not only by the dubious character of Fast and Furious, but by some of the attorney general’s other actions, as well. While out of office, for example, he famously called for a “reckoning” for CIA officers and other officials who authorized and conducted operations that were edgy and risky and intended to deal with difficult circumstances.

Once in office, he launched a “reckoning” of CIA renditions, detentions and interrogations of terrorists by directing the Justice Department to reopen investigations closed years before by career prosecutors. This decision was opposed by then-CIA Director Leon Panetta and seven of his predecessors, and Holder reportedly made the decision without reading detailed memos prepared by those career prosecutors declining to pursue further proceedings.

[snip]

As I said, schadenfreude is a bad thing. But it is sometimes hard to avoid, especially when life seems to come full circle.

Attorney General Eric Holder has made it clear that he thinks he has been subjected to a heavily politicized process over Fast and Furious.

If he has — and that’s still an if — I suspect that some folks at CIA know exactly how he feels.

Hayden ought to be grateful that DOJ has helped cover up the Bush Administration’s illegal wiretap program, not to mention their unsuccessful efforts to prosecute Thomas Drake for exposing that when implementing that program, Hayden deliberately chose more expensive plans that offered less privacy.

But instead he seems to be suggesting that it would be right to retaliate politically against the Attorney General for doing his job–prosecuting crime.

Ah well, in his spiteful glee, Hayden finally admits that the torture program was unsuccessful.

After the congressional elections of 2006, the CIA was forced to defend edgy (often controversial and sometimes unsuccessful) actions in a tough political environment.

But I guess we citizens have to put up with such unsuccessful and illegal programs otherwise, or risk political retribution?

Latif: Presumption of Regularity for Thee, But Not for Me

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In her opinion holding that government documents submitted in habeas corpus petitions must be treated with a presumption of regularity, Judge Janice Rogers Brown, herself, did not follow her own order. And in spite of demanding that judges treat their documents with the presumption of regularity, the government didn’t do so consistently in this case either. The government and the judge did not credit what Judges Henry Kennedy and David Tatel found to be one of the most important pieces of evidence in the case: the government’s own intake form showing that Adnan Farhan Abd Al Latif was captured in Pakistan with medical records.

As you recall, Latif is a Yemeni who was captured by Pakistanis close to the Afghan border, then turned over to the Americans on December 30 or 31, 2001 (this was the period when the US was paying Pakistanis bounties for Arab “fighters”). In July 2010, Kennedy granted his habeas petition. But the government (which had cleared Latif for release on multiple occasions between 2006 and 2010) appealed, arguing that Kennedy erred because he did not find their single piece of evidence explicitly tying Latif to the Taliban accurate.

I believe that evidence–a report which appears to be the summary of a “debriefing” conducted around December 27 or 28 while Latif was in Pakistani custody (see PDF 25)–is an intelligence report with the serial number TD-314/00684-02 summarizing the stories of at least nine different detainees, all the non-Yemenis of whom have since been transferred out of Gitmo.

The government apparently admitted that its case “turn[s] on the accuracy” of this report (that admission–cited to page 5 at PDF 53–appears to be redacted in the original). And Rogers Brown acknowledged that the report had an obvious mistake on its very first page. But the government argued and Rogers Brown upheld that Kennedy should have taken the report at its word, should have presumed that the government accurately identified the sources of information named in the report and accurately recorded what those sources said. “It is well established that there is a strong ‘presumption of regularity’ for actions of government officials taken in the course of their official duties,” the government argued. Unless Latif provided really good evidence to the contrary (and the fog of war and the Pakistani involvement and the translation and transcription problems were not sufficient, apparently), Rogers Brown’s opinion held that Kennedy should have accepted that the report accurately recorded Latif confessing that he had undergone military training with the Taliban.

The government also argued–critically for their case, given that their case relies on just that one report–that Latif, who explains he did not say what the report claims he said, is not credible. The government argued that, in spite of the fact that he has provided the same general explanation for his trip to Afghanistan since he came into US custody a decade ago (that he was hoping to get affordable medical care for ongoing problems from a head injury he sustained in 1994) the courts must credit the government’s one report with all its acknowledged factual errors rather than Latif’s story.

To attack Latif’s credibility, the government claimed he provided no corroboration for his story.

He submitted no evidence from a family member, from Ibrahim, or from anyone to corroborate his claim that he was traveling to Pakistan in 2001 to seek medical treatment.

But that’s not true. In addition to Latif’s medical records from being treated in Jordan, a statement from Yemen’s Ministry of Public Health recommending he get more care, and a statement from a Gitmo doctor finding Latif’s medical claims to be credible, Latif’s intake report from December 31, 2001 (PDF 33; shown above) shows he had medical records with him when he was captured.

In his opinion, Kennedy cited the intake report. Latif’s lawyers cited the report in their response to the government’s appeal. And Tatel cited it in his dissent, noting that, “the most plausible reason for why Latif would have had medical papers in his possession when first seized is that his trip in fact had a medical purpose.” Yet in spite of Rogers Brown’s claim that,

If a detainee introduces a government record to support his side of the story … he can benefit from the presumption as well.

She did not give him that benefit.

Read more →

Latif and the Misattribution Problem: “All Arabs Look the Same”

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I’m going to have at least two more posts on Adnan Farhan Abd Al Latif (for background see this post), both in response to this post from Mark Denbeaux and Ben Wittes’s response to it.

In this post, I want to demonstrate a possible mistaken assumption many of us have been making as we try to read through the redactions, which is that the only source of potential irregularity in the document at the heart of Latif’s habeas case may have arisen out of translation problems.

Denbeaux describes what he believes the circumstances of the report at the heart of the Latif case to be.

To illuminate how the presumption works, the majority utilizes a hypothetical that does not properly apply to Latif’s case. The hypothetical depicts a government intelligence officer taking the statement of a third party informant. The majority would have us presume that the officer accurately wrote down what the third party informant said, though not presuming the informant’s statement was itself true. This seems to make sense until you apply it to the facts of Latif. A fair and thorough reading of the opinion suggests that the document and information being redacted is a report from an interrogation of Latif that contains opponent-party admissions. The interrogation likely involved an interrogator, a translator, and Latif. Thus, the third party informant in the majority’s hypothetical is Latif himself.

But that’s not exactly what Janice Rogers Brown wrote in the majority opinion in this case. In addition to requiring us to presume that the officer accurately wrote down what the third party informant said, she also wants us to presume that the government officer accurately identified the source.

The confusion stems from the fact that intelligence reports involve two distinct actors-the non-government source and the government official who summarizes ( or transcribes) the source’s statement. The presumption of regularity pertains only to the second: it presumes the government official accurately identified the source and accurately summarized his statement, but it implies nothing about the truth of the underlying non-government source’s statement. [my emphasis]

That’s an important distinction because there are hints that misattribution might be a significant issue in this case as well.

First, the government reply to the Circuit Court tries to refute just that possibility along with mistranslation. “Those similarities – which square with the external evidence about [redacted] make it highly unlikely the report resulted from a mistranslation or misattribution” (PDF 8)

Then, even going back to Latif’s CSRT in 2004–at which the allegations he fought at Kabul, the same allegations at issue here, were presented–he insisted he was not the person referred to in the unclassified summary of charges against him.

I told you I wasn’t the person they were referring to. I never went to the places that you said I did. I am not the person this case is based on.

Also remember that the government is not relying on a discrete, self-contained report on Latif alone. Rather, it has presented just fragments of a larger report, as David Tatel noted in his dissent.

The Report’s heavy redactions–portions of only [redacted] out of [redacted] pages are unredacted–make evaluating its reliability more difficult. The unredacted portions nowhere reveal whether the same person [one and a half lines redacted] or whether someone else performed each of these tasks. And because all the other [redacted] in the Report are redacted, the district court was unable to evaluate the accuracy of [redacted] by inquiring into the accuracy of the Report’s [redacted].

That’s important because several of the intelligence reports reporting on detainees Pakistan turned over to the US in December 2001 are group reports (I’ve determined this by searching on the report name among Gitmo files). TD-314/00684-02, which I suspect is the report in question, includes reports from at least 9 detainees. TD-314/00685-02 (obviously, a closely related report) refers to at least 7 detainees. Another, TD-314/00845-02, catalogs the transfer of at least 8 detainees (a number of whom are also mentioned in TD-314/00684-02)  from Pakistani to American custody. And IIR 7 739 3396 02 lists 84 detainees purportedly captured with Ibn Sheikh al-Libi. That is, even if I’m incorrect in my supposition that TD-314/00684-02 is the report in question, chances are quite good that the report deals with multiple detainees in the same report and the redactions Tatel describes serve to hide the other detainee stories told in the same report.

Furthermore, the internal distinctions between detainees in these reports do not appear to be clear cut. Read more →

4th Circuit: Enemy Combatants Can’t Complain about Having Been Made Enemy Combatants

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As you’ve probably heard, the 4th Circuit rejected Jose Padilla’s suit against Donald Rumsfeld on Tuesday. Both Lyle Denniston and Steve Vladeck have good summaries of the decision, which basically says the courts can’t grant damages for constitutional abuses not otherwise covered by law until such time as Congress sees fit to cover them in law:

The factors counseling hesitation are many. We have canvassed them in some detail, but only to make a limited point: not that such litigation is categorically forbidden by the Constitution, but that courts should not proceed down this highly problematic road in the absence of affirmative action by Congress. If Congress were to create a damages remedy here, we would trust that the legislative process gave due consideration to the broader policy implications that we as judges are neither authorized nor well-positioned to balance on our own.

But if that’s not circular enough reasoning for you, here’s a more disturbing one–one which may have troubling implications given the recent codification of indefinite detention.

The 4th Circuit Opinion hews closely to the argument the government made in its amicus brief which, as I described last year, itself engaged in circular logic. It effectively invoked national security to say that the court couldn’t consider Padilla’s deprivation of due process. And then having bracketed off the lack of due process that got him put in the brig with no access to lawyers, they effectively punted on the torture complaint.

To explain their failure to treat torture in their filing, they say 1) that the other defendants are addressing it and 2) they don’t have to deal with it anyway because the President has said the US does not engage in torture (which is precisely what Bush said when torture was official policy):

In this brief, we do not address the details of Padilla’s specific treatment allegations, which have already been thoroughly briefed by the individual defendants.1

1 Notwithstanding the nature of Padilla’s allegations, this case does not require the court to consider the definition of torture. Torture is flatly illegal and the government has repudiated it in the strongest terms. Federal law makes it a criminal offense to engage in torture, to attempt to commit torture, or to conspire to commit torture outside the United States. See 18 U.S.C. § 2340A. Moreover, consistent with treaty obligations, the President has stated unequivocally that the United States does not engage in torture, see May 21, 2009 Remarks by the President on National Security.

Note that bit, though, where the government acknowledges that torture is illegal?

That’s important, because they base their objections to the Bivens complaint in part on the possibility that a court could review Padilla’s treatment–treatment he alleges amounts to torture, which the government accepts is illegal–and determine whether it was in fact torture and therefore illegal.

Padilla also seeks damages in regard to the lawfulness of his treatment while in military detention. Thus, a court would have to inquire into, and rule on the lawfulness of, the conditions of Padilla’s military confinement and the interrogation techniques employed against him. Congress has not provided any such cause of action, and, as the district court concluded (JA 1522), a court should not create a remedy in these circumstances given the national security and war powers implications.

And they’re arguing Congress–which passed laws making torture illegal (to say nothing of the Constitution prohibiting cruel and unusual punishment)–didn’t provide for a cause of action.

That is, Padilla can’t sue both because Congress has made it illegal but not provided a cause of action here and … national security!

Effectively, then, the government shielded torture by shielding the initial lack of due process from all oversight under national security and therefore depriving Padilla of recourse once he lost his access to due process.

In my opinion, the 4th Circuit brief actually magnifies this problem. Check out the language in these two passages:

Special factors do counsel judicial hesitation in implying
causes of action for enemy combatants held in military detention.

[snip]

With respect to detainees like Padilla, Congress has provided for limited judicial review of military commission decisions, but only by the District of Columbia Circuit Court of Appeals, and only after the full process in military courts has run its course. 10 U.S.C. § 950g. And to the extent that the Supreme Court in Boumediene v. Bush, 553 U.S. 723 (2008), permitted further judicial examination of the detention of enemy combatants, it did so using the limited tool of the constitutionally guaranteed writ of habeas corpus—not an implied and open-ended civil damages
action. See id. at 797. [my emphasis]

That is, the 4th Circuit did not consider whether American citizens with no other recourse could sue under Bivens for having been turned into enemy combatants precisely to deprive them of their rights. Rather, it considered whether “enemy combatants held in military detention” and “detainees like Padilla” had access to Bivens. It thereby ignored the most fundamental part of the process, where the Bush Administration removed Padilla, a citizen, from civilian detention with access to due process, and made him an enemy combatant.

The 4th Circuit denies Padilla the ability to sue for being deprived of his constitutional right to due process by considering him not as a citizen deprived of his constitutional rights, but as a detainee whose constitutional rights had already been suspended.

Which makes the final passages of this opinion all the more nauseating. Having premised their entire decision not on Padilla’s rights as a citizen, but on his rights as an enemy combatant (even seemingly referring to him as a detainee, in the present tense), they then argue that there would be no incremental harm for Padilla between being a citizen convicted of a felony through due process and being an enemy combatant.

It is hard to imagine what “incremental” harm it does to Padilla’s reputation to add the label of “enemy combatant” to the fact of his convictions and the conduct that led to them.

This entire suit is about the magical power that term “enemy combatant” has to put an American citizen beyond the realm of due process (and, in Padilla’s case, to be tortured precisely because he has lost due process). That is precisely the logic the judges use throughout this opinion. And yet they simply can’t imagine what the difference between being a citizen–even one convicted of multiple felonies–and being an enemy combatant is?

And then there are the larger implications of this. In a world where indefinite detention is now codified into law, in a world where Padilla has always delimited the possible applications of claimed authority to hold American citizens captured in this country as enemy combatants, the circuit that covers CIA’s and JSOC’s actions–not to mention the two military brigs, Charleston and Quantico, that would be the most likely places to detain American citizens–just accorded that term, “enemy combatant,” magical status. Once applied to an American citizen, the 4th Circuit says, the Executive Branch is absolved of any infringements of a citizen’s constitutional rights, even the infringements of constitutional rights used to get him into that magic status in the first place.

US Resolves to Clean Up Its Illegal Detention at Parwan

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While it is good news that the Administration is finally going to do something about the non-Afghan detainees at Bagram, the WaPo sure lets its anonymous Administration sources put the best spin on the move.

It is not, apparently, a response to our closest ally finding us in potential violation of the Geneva Convention. It is not the fact that Congress just required the Administration to give detainees the kind of due process it has been refusing (which the WaPo doesn’t even mention). Nope! It is, according to the WaPo, because the Administration has decided to enact orderly transfers now.

The Obama administration is considering the repatriation of most, if not all, of the non-Afghan detainees held at the main American-run prison in Afghanistan, an effort to oversee their transfer before U.S. officials relinquish control of the facility, according to administration officials.

The foreign prisoners, who number close to 50, were in some cases picked up on the battlefield in Afghanistan and in others detained in third countries and taken to the prison by the CIA, according to U.S. and foreign officials.

With the U.S. government planning to hand over control of the prison, American officials believe that Afghan authorities are unlikely to have any interest in either continuing to hold the foreigners or in putting them on trial. By beginning the repatriation process soon, officials believe they can negotiate transfers with the detainees’ home countries, arrange for post-transfer monitoring, and secure diplomatic assurances that detainees will not be abused when they return home.

That said, the WaPo includes a rather amusing summary of anonymous officials insisting that our hand is not being forced by things like Yunus Rahmatullah’s successful habeas petition in the UK.

Administration officials said they are willing to transfer Rahmatullah, but do not want the basis of such a move to be a foreign court ruling.

And it includes a number of pieces of evidence to suggest these detainees weren’t a threat in the first place.

A small number of detainees [out of 50] may be deemed to pose a terrorist threat, requiring their continued detention or close supervision by their home country if released from the Afghan prison, officials said. Additionally, a number of them are Yemeni, complicating their possible repatriation.

[snip]

The foreign detainees include two Yemenis and one Tunisian who attempted to secure their release by filing for writs of habeas corpus in the U.S. District Court in Washington in 2009. All three claimed they were captured outside Afghanistan, held at secret CIA prisons overseas, before being transferred to the detention center in Bagram.

Judge John D. Bates ruled that these non-Afghan prisoners had the right to pursue habeas cases; however, the federal court of appeals overturned that decision in 2010.

A U.S. official said the three men were among those who could be repatriated.

So before we start the process of giving detainees actual, meaningful review of their detention, we’re going to first repatriate a bunch who we’ve known not to pose a threat.

Whatever. I guess if we have to allow the Administration to engage in these fictions to get out of the illegal detention business, I’ll take it.

Exhibits in Latif’s SCOTUS Petition Prove Interrogation Summaries Should Not Be Entitled to Presumption of Regularity

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In his book, The Black Banners, former FBI Agent Ali Soufan describes multiple occasions when FBI and CIA reporting on a subject did not match. For example, he describes how his reporting and that of a CIA officer, Fred, differed during the investigation into the Millenium Plot.

My problems with him started within the first couple of days, after Pat D’Amuro received a phone call from FBI headquarters saying that my reporting of intelligence and Fred’s reporting of the same event didn’t match up.

[snip]

An investigation was done and the Jordanians were consulted, and all concerned were advised that my reporting was correct and Fred’s was faulty.

[snip]

Because of his flawed analysis, a total of twelve [redacted]–intelligence reports–had to be withdrawn. If portions of a cable are shown to be inaccurate, the entire cable is viewed as unreliable and suspect. (138-39)

Soufan elsewhere claims “there were discrepancies between information that went through CIA channels and what was reported in FBI channels” in some other cases. (119)

Adnan Latif’s redacted petition for cert has been released. The petition–plus the exhibits submitted with it–show that similar problems plagued at least one pair of reports on Latif. And those discrepancies, by themselves, prove that giving government interrogation summaries the presumption of regularity is untenable.

The pair of reports are DOD and FBI summaries of an interrogation of Latif conducted on May 29, 2002 (see PDFs 91 and 93-94) . As I noted in this post, even Latif’s factual return made it clear there were discrepancies between the two reports (though the unredacted parts of the factual return didn’t admit they recorded the same interview). The petition summarizes these discrepancies.

The reports, however, have numerous discrepancies. For example, one states that he is a Yemeni, App. 223a, while the other says both that he “claims Bangladeshi citizenship” and is a member of a Yemeni tribe, App. 221a. One says that he attended secondary school for “two or three years, and eventually graduated,” App. 223a, while the other states that he claimed to have “never graduated from high school,” App. 221a. It is obvious that at least one or perhaps both documents failed accurately to report what the translator was telling the interrogators.

The Bangladesh claim, incidentally, appears to derive from just one report, Latif’s Knowledgability Brief from February 2002 (which was not cited in his Gitmo file); his intake form (PDF 33-34) from December 31, 2001 clearly identifies him as an Arabic speaking Yemeni and notes he claimed he was picked up because he was an Arab. So it appears (though we can’t be sure) the DOD report writer wrote what would be consistent with the KB (and cited it), while the FBI report recorded what Latif said in the interview.

One more important discrepancy between the DOD and FBI reports from May 29, 2002: the DOD report says Latif was 16 when he suffered his head injury. The FBI report said he was 14. Latif’s factual return cites the differing ages as proof he kept changing his story (something similar happened in one of his CSRTs, but the confusion arose from his sense of time); but clearly here it was a difference of reporting, not of his report.

A footnote in the petition reveals the government tried to attribute these discrepancies to Latif changing his story until it became clear the fault lay in the inconsistency of the report writing of one or both of his interrogators.

The government initially argued that the reports were so inconsistent that they proved that Latif, like a guilty man, was changing his story from one interrogation to another. When it was pointed out to the government that the reports were evidently from the same interrogation, and that the discrepancies were created by the government, not by Latif, the government abandoned this argument.

Now, neither of these reports are the report that claims Latif trained with the Taliban, what I suspect is TD-314/00684-02. So showing that the reporting process of that May 29, 2002 interrogation introduced discrepancies is not sufficient to prove that the report at issue suffered from the same–and worse–kind of reporting problems.

But it’s significant to this case that even among the reports not written in the fog of war–as the report at issue was–the reporting process of one or both of these reports introduced (at best) confusion into the report, if not outright inaccuracy. The government, faced with that fact in a case in which they were at the same time insisting that all interrogation reports be accorded the presumption of regularity, simply blamed the detainee and then just dropped it.

If Janice Rogers Brown has her way and such interrogation reports are granted the presumption of regularity, then we must accept that a reporting process that describes Latif as both Bangladeshi and Yemeni, as both as a madrassa graduate and as someone who did not graduate, to have not introduced any inaccuracies.

Now, Henry Kennedy wasn’t pointing to the obvious deficiencies in the Gitmo files when he ruled an interrogation report not credible (though he did suggest those reports might suffer from translation problems, something that several exhibits submitted with the cert petition support). Kennedy was making a much more modest argument: that interrogation reports produced in a process with none of the organization that had been imposed at Gitmo by May 2002 should not be presumed to be accurate records of an interrogation.

If the government can’t even produce consistent reports from a relatively orderly prison, then why has the DC Circuit mandated that courts accept interrogation reports from far more chaotic processes?

One final note: Soufan suggests that if CIA cables have been shown to have inaccuracies, the entire cable is withdrawn. Even Rogers Brown admits that the report in question included an “obvious mistake.” If, as I suspect, this is a CIA cable, and if it has such obvious mistakes that even a Circuit Court judge sees it, then why hasn’t the CIA withdrawn the cable?

Or have they?