The Answer, Robert Mueller, Is “Yes, DOJ Does Believe It Could Kill a Citizen in the US”

FBI Director Robert Mueller tried to avoid answering whether or not we can target US citizens in the United States.

FBI Director Robert Mueller on Wednesday said he would have to go back and check with the Department of Justice whether Attorney General Eric Holder’s “three criteria” for the targeted killing of Americans also applied to Americans inside the U.S.

Pressed by House lawmakers about a recent speech in which Holder described the legal justification for assassination, Mueller, who was attending a hearing on his agency’s budget, did not say without qualification that the three criteria could not be applied inside the U.S.

“I have to go back. Uh, I’m not certain whether that was addressed or not,” Mueller said when asked by Rep. Kevin Yoder, R-Kan., about a distinction between domestic and foreign targeting

Yoder followed up asking whether “from a historical perspective,” the federal government has “the ability to kill a U.S. citizen on United States soil or just overseas.”

“I’m going to defer that to others in the Department of Justice,” Mueller replied.

When Fox asked DOJ for clarification, a spokesperson said the framework as laid out by Holder applied abroad, and she couldn’t imagine a scenario in which it would happen domestically.

But of course, everyone is simply dodging. DOJ knows well their legal logic, such as it is, would permit the due process free killing of an American in America. After all, Eric Holder claimed in his speech that Congress had not limited the geographic scope of the government’s authority to use force.

Our legal authority is not limited to the battlefields in Afghanistan.   Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.   We are at war with a stateless enemy, prone to shifting operations from country to country.

Jeh Johnson said the same in a recent speech, specifically in the context of domestic authorities.

Third: there is nothing in the wording of the 2001 AUMF or its legislative history that restricts this statutory authority to the “hot” battlefields of Afghanistan.  Afghanistan was plainly the focus when the authorization was enacted in September 2001, but the AUMF authorized the use of necessary and appropriate force against the organizations and persons connected to the September 11th attacks – al Qaeda and the Taliban — without a geographic limitation.

And on Monday, when Holder objected to calling assassinations assassinations, he did not limit their claimed legality to overseas locales.

Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

But long before Johnson and Harris made these arguments it became clear that the legal analysis had to permit the targeting of American citizens within the US.

That’s because the legal case cited to get from capturing a US citizen (based on the precedent of Hamdi) to killing him is Scott v. Harris, an entirely domestic case.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

You can’t very well argue that, having determined a US citizen to be a lawful target under the AUMF and then claimed, as they did with Awlaki, that they had no way of capturing him safely, they couldn’t assassinate him in the US, too. If a police officer can use deadly force to stop a high speed car chase, then counterterrorism officials would not hesitate to use whatever means to kill a terrorist.

Dianne Feinstein Assures Us Her Review of Targeted Killing Is Adequate

Senate Intelligence Committee Chair Dianne Feinstein just sent out a release assuring us all that her committee keeps close watch over counterterrorism programs, including targeted killing. In her statement, she asserted that “our counterterrorism efforts are lawful under the Constitution.”

The Attorney General presented the administration’s legal analysis for the use of force against terrorists, including Americans. I believe it is important for the public to understand the legal basis and to make clear that our counterterrorism efforts are lawful under the Constitution, U.S. law and the law of war.

We are made safer by strikes against terrorists who continue to lead and carry out attacks on the United States. There are legal limits to this authority and great care is taken to ensure it is exercised carefully and with the absolute minimum of collateral damage. The Senate Intelligence Committee is kept fully informed of counterterrorism operations and keeps close watch to make sure they are effective, responsible and in keeping with U.S. and international law. [my emphasis]

It’s all very nice for DiFi, a member of the Gang of Four, to tell us that her committee is keeping close watch on the assassination of American citizens.

She can say that, because she has actually seen the government’s legal memo authorizing the killing of Anwar al-Awlaki.

Except that as of 6:47PM on Monday, according to Ron Wyden’s Communication Director, the full Senate Intelligence Committee still had not seen the legal justification for the Awlaki killing. Nor had it answered simple questions, like how much evidence the government needs to meet the Executive Branch’s unilateral standards for due process. Or whether the government can kill you in the US.

For example, the government should explain exactly how much evidence the President needs in order to decide that a particular American is part of a terrorist group.  It is also unclear to me whether individual Americans must be given the opportunity to surrender before lethal force is used against them.  And I’m particularly concerned that the geographic boundaries of this authority have not been clearly laid out.  Based on what I’ve heard so far, I can’t tell whether or not the Justice Department’s legal arguments would allow the President to order intelligence agencies to kill an American inside the United States.

If a member of the Senate Intelligence Committee doesn’t know the answers to those questions, DiFi is simply wrong when she claims her committee has had adequate oversight over the killing of an American citizen.

It’s all very nice that DiFi tells us this is constitutional. But right now there’s still been grossly inadequate oversight to test that claim. Hamdi required an impartial adjudicator. But at this point, I’m not convinced we’ve even fulfilled the requirements of the National Security Act.

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

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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Holder’s Unproven Claims about Anwar al-Awlaki the AQAP Leader

Perhaps it’s because of all the dubious reasons the Administration continues to keep its case against Anwar al-Awlaki secret, but Eric Holder gave the impression of not knowing precisely what evidence the government had shown against Awlaki.

Or, deliberately misrepresenting it.

Holder mentioned Awlaki just once–purportedly to summarize Abdulmutallab’s case against Awlaki they released last month.

For example, in October, we secured a conviction against Umar Farouk Abdulmutallab for his role in the attempted bombing of an airplane traveling from Amsterdam to Detroit on Christmas Day 2009.  He was sentenced last month to life in prison without the possibility of parole.  While in custody, he provided significant intelligence during debriefing sessions with the FBI.  He described in detail how he became inspired to carry out an act of jihad, and how he traveled to Yemen and made contact with Anwar al-Aulaqi, a U.S. citizen and a leader of al Qaeda in the Arabian Peninsula.  Abdulmutallab also detailed the training he received, as well as Aulaqi’s specific instructions to wait until the airplane was over the United States before detonating his bomb. [my emphasis]

Note, this misrepresents what Abdulmutallab said, at least as shown by the summary released last month (setting aside the reasons DOJ chose not to test those claims at trial). What the summary did say was that Awlaki gave Abdulmutallab specific instructions to ignite his bomb while over the US. It did not say Awlaki was “a leader of al Qaeda in the Arabian Peninsula.” That’s DOJ’s elaboration, a frankly dishonest one, given the construction (and one that was probably at least significantly challenged by the intelligence Jubeir al-Fayfi delivered ten months after Abdulmutallab gave his testimony).

But once Holder gets to his purportedly generic case for killing US citizens, he does not use what DOJ showed Abdulmutallab to have said–that Awlaki directed his attack–but instead uses the “AQAP leader” claim he has not presented evidence for. He uses six different formulations of the claim over the course of the speech.

But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.

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Congress and Killing Oversight: Eric Holder v. Ron Wyden

Eric Holder today said that giving “appropriate members of Congress” information on the “legal framework” of its operations where “lethal force is used against United States citizens” is a key part of robust oversight.

That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight.  Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.

Well, then, there simply hasn’t been robust oversight over the Anwar al-Awlaki killing.

As of a month ago–four months after Awlaki was killed–the Senate Intelligence Committee had not been provided with the legal framework for Awlaki’s kill. This, in spite of the fact that SSCI member Ron Wyden had been requesting that framework for over five months before Awlaki was killed.

I said when Wyden made that clear that it showed there had not been adequate oversight of the killing. By his words–if not his deeds–Holder effectively made the same argument.

Eric Holder’s View on National Security: Three Branches. Except for When the Third becomes Inconvenient.

Eric Holder’s speech–which starts with a defense of civilian trials and ends with dead American citizens–fails to achieve its impossible task. Granted, Holder frames his defense of civilian trials in efficacy, not rule of law (in language that really should have been a cornerstone of the NDAA debate). But ultimately, Holder claims to be upholding due process, and that’s where his case for killing Anwar al-Awlaki falls apart.

Close to the beginning of his speech, Holder promises the counterterrorism powers of the government would be subject to checks and balances.

We must – and will continue to – use the intelligence-gathering capabilities that Congress has provided to collect information that can save and protect American lives.  At the same time, these tools must be subject to appropriate checks and balances – including oversight by Congress and the courts, as well as within the Executive Branch – to protect the privacy and civil rights of innocent individuals.

Holder offers the use of the FISA Court as example of all three branches exercising such checks and balances.

Let me give you an example.  Under section 702 of the Foreign Intelligence Surveillance Act, the Attorney General and the Director of National Intelligence may authorize annually, with the approval of the Foreign Intelligence Surveillance Court, collection directed at identified categories of foreign intelligence targets, without the need for a court order for each individual subject.  This ensures that the government has the flexibility and agility it needs to identify and to respond to terrorist and other foreign threats to our security.  But the government may not use this authority intentionally to target a U.S. person, here or abroad, or anyone known to be in the United States.

The law requires special procedures, reviewed and approved by the Foreign Intelligence Surveillance Court, to make sure that these restrictions are followed, and to protect the privacy of any U.S. persons whose nonpublic information may be incidentally acquired through this program.   The Department of Justice and the Office of the Director of National Intelligence conduct extensive oversight reviews of section 702 activities at least once every sixty days, and we report to Congress on implementation and compliance twice a year.  This law therefore establishes a comprehensive regime of oversight by all three branches of government.  Reauthorizing this authority before it expires at the end of this year is the top legislative priority of the Intelligence Community.

Never mind that Holder exaggerates the statutory authority given to FISC. He still uses it as a robust example of the value of three branches exercising oversight. The court–even one operating in secret, Holder claims–provides an important check and balance.

Apparently, such checks and balances are not what the Constitution has in mind when it talks about due process for American citizens.

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.  In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.  Where national security operations are at stake, due process takes into account the realities of combat.

[snip]

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.  This is simply not accurate.  “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.  The Constitution guarantees due process, not judicial process.

[snip]

The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen. [my emphasis]

Unfortunately (for Holder and for the rule of law), his argument falls apart here. That bolded language explicitly invokes Hamdi (though interestingly, not by name). And here’s what Hamdi has to say about what due process entails.

It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

[snip]

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.

[snip]

In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.

[snip]

Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process. [my emphasis]

That is, Hamdi–which Holder invokes for premise that “due process takes into account the realities of combat”–specifically says “the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.” Hamdi permits for balancing–for the use of things like hearsay, for example. But it explicitly says that the realities of combat don’t obviate a citizen’s right to an impartial adjudicator.

You know. Like a judge.

As I’ll show in a later post, Holder’s claim that the Awlaki killing had proper Congressional oversight is just as false. But in his efforts to dismiss the necessity of courts to provide checks and balances, he invokes a SCOTUS case that requires an independent reviewer to provide just such a check.

How Good Are DOJ’s Reasons for Burying Its Case against Anwar al-Awlaki?

Today’s the day Eric Holder explains how his Department decided it was okay to kill a US citizen with no independent legal review, even while he says we should use civilian courts to, uh, give terrorists due process.

Now, at least as of late January, the Administration still planned not to include any real information about its case against Anwar al-Awlaki in Holder’s speech.

As currently written, the speech makes no overt mention of the Awlaki operation, and reveals none of the intelligence the administration relied on in carrying out his killing.

Since much of the evidence that has been used to implicate Awlaki came from Umar Farouk Abdulmutallab, I’m going to return to a question I first raised several weeks ago, why DOJ sat on the information it got from Abdulmutallab implicating Awlaki so long.

In this post, I considered why DOJ published a narrative explicitly describing Anwar al-Awlaki’s role in Umar Farouk Abdulmutallab’s terror plot last month, rather than when it learned the information from Abdulmutallab sometime in 2010. The reason is likely evidentiary. It appears the government never persuaded Abdulmutallab to testify against Awlaki even while he was implicating Awlaki during “plea negotiations,” meaning it’s unclear Abdulmutallab would have repeated the information implicating Awlaki in court. Note, since that post, Abdulmutallab prosecutor Jonathan Tukel confirmed in court that the UndieBomber was offered–but did not accept–a plea agreement.

In this post, I will consider other reasons why DOJ may have buried (and presumably will continue to bury) their case against Awlaki: a desire to hide its signals intelligence, its informants, as well as a desire to win legal cases.

Read more

An Interesting Day at Gitmo

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.

Obama’s Detainee Waivers Exempt Aspirational Terrorists from Military Detention

During the debate on the NDAA, I noted that Obama could just issue an order saying the military primacy required by the law would only kick in after a civilian trial.

Nothing in the bill allows Congress to override the procedures developed by the Administration; it only requires that Congress get a copy of them.

Which would seem to permit the Administration to issue the following procedures:

  1. The persons authorized to make determinations whether or not someone is a “Covered Person” are Article III jurors and/or jurists.
  2. The process by which it will be determined whether or not someone is a “Covered Person” will be a civilian trial.

That would seem to render the effect of the most noxious part of the detainee provisions minimal: rather than imprisoning convicted terrorists at Florence SuperMax, those terrorists will be detained at Leavenworth. But they won’t be transferred to military custody until after they get a civilian trial.

While Obama does carve out significant swathes of detainees who will be exempt from presumptive military detention, the order he released yesterday doesn’t go as far as requiring trials to determine if someone is a “covered person;” instead, it uses probable cause.

I’ll have a number of things to say about his order, but for the moment, look at how he defines “attempted attack;”

An “attempted attack” means an overt act or acts beyond  substantial step when (a) performed with specific intent to commit an attack; and (b) no further step or act by the individual would be necessary to complete the attack.

“No further act would be necessary to complete the attack.”

While most of the aspirational terrorists the FBI arrests would be exempted as citizens or lawful permanent residents, this definition would also exempt people like Khalid Ali-M Aldawsari–the Saudi who ordered chemicals to build a bomb, but had many further steps to go before his attacks would have been completed–from presumptive military custody. And while Aldawsari’s case is already really attenuated, the acts of someone like Najibullah Zazi would not have qualified either. (Note, I hope to return to this post on Aldawsari, but in the meantime, recommend you go read it.)

Mind you, I think that’s a good thing–the fewer people stuck in Lindsey Graham’s military brigs the better. But it does betray that DOJ charges as attempted attacks acts that, under this directive, don’t qualify as attempted attacks.

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

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