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Did the US Coerce a Miranda Waiver (Again) by Threatening Family Members?

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The NYT reveals that the lawyer for Manssor Arbabsiar has suggested she will challenge the voluntary nature of Arbabsiar’s 12 days of waiving his Miranda rights.

Mr. Arbabsiar’s lawyer, Sabrina Shroff, said in a recent interview that she intended to seek a hearing on whether the “consent was freely given, or whether it was unlawfully extracted,” given the gap in time between her client’s arrest and his initial court appearance on Oct. 11.”There has to be a deep concern about the voluntariness of consent to that long a period of detention,” she said.

Her comments provide an early look at the defense’s legal strategy in a case that has gained widespread attention because of questions over Iran’s alleged role, and because of the wealth of information that prosecutors said they obtained from Mr. Arbabsiar after he waived his Miranda rights.

[snip]

The interrogation of Mr. Arbabsiar was cited in a sealed, four-page letter that the office of Preet Bharara, the United States attorney in Manhattan, sent to the court on Oct. 6, while questioning was under way. The letter said Mr. Arbabsiar had “without counsel, knowingly and voluntarily waived his Miranda rights and his right to a speedy presentment” each day, and had signed waivers to that effect.

The letter, now public, described how agents were “vigorously and expeditiously pursuing leads relating to the defendant’s statements,” and said “regular access” to Mr. Arbabsiar had allowed them “to promptly verify with him the accuracy of information developed in the investigation.”

The story led me to check the docket, only to discover they’ve unsealed Arbabsiar’s first complaint. I’ll have much more to say about the unsealed complaint (including the weaknesses it shows in the US case that this was an attack primarily directed against the US).

But for now, the complaint suggests one means they used to coerce a  man who had insisted on legal representation in at least four prior brushes with the law to waive his Miranda rights in a case that risks putting him away for life: by threatening to take action against his brother.

Read more →

Latif: The Administration Blew Up Habeas with a Detainee They Determined Could Be Transferred

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There are a few more details that need to be readily available about Adnan Farhan Abd al Latif, the Yemeni Gitmo detainee whose habeas corpus petition led DC Circuit Judges Janice Rogers Brown and Karen Henderson to gut habeas. Most importantly, almost two years before the Administration used an unreliable intelligence report to justify his detention, the Bush Administration had determined he could be transferred out of DOD control.

DOD Recommended Transfer of Latif in 2006

Latif’s Gitmo file makes that clear.

JTF-GTMO recommends this detainee for Transfer Out of DoD Control (TRO). JTF-GTMO previously recommended detainee for Transfer Out of DoD Control (TRO) on 18 December 2006.

So on December 18, 2006, DOD determined they should transfer of Latif. On January 17, 2008, they determined they should transfer of Latif. (This is a point Judge Henry Kennedy made in his ruling, citing slightly different documents.) Presumably in January 22, 2010, Latif was among the 30 Yemeni detainees the Gitmo Task Force determined designated for “conditional” detention:

30 detainees from Yemen were designated for “conditional” detention based on the current security environment in that country. They are not approved for repatriation to Yemen at this time, but may be transferred to third countries, or repatriated to Yemen in the future if the current moratorium on transfers to Yemen is lifted and other security conditions are met.

The Bush Administration had designated 15 detainees for transfer; the Obama Administration transferred 6 of those in December 2009, before the UndieBomber attack, Mohammed Odaini got sent back in 2010 after winning his habeas petition, and one more Yemeni got transferred to a third country. Which suggests that Latif is among the unlucky 7 detainees whom both the Bush and Obama Administrations believe could be sent home, if it weren’t for the security situation in Yemen.

In other words, Latif remains in Gitmo because our partner in Yemen, Ali Abdullah Saleh, doesn’t control the country, and because Umar Farouk Abdulmutallab tried to blow up a plane, not because Latif himself represents a big threat.

Nevertheless, the Administration insisted on making a case, based on a dodgy intelligence report, to legitimize their continued detention of a man whom they had already decided could be transferred.

TD-314/00684-02 Is the Document Being Used to Hold Latif

As I laid out here, they did so primarily with an intelligence report from early 2002 that sorted through a large number of detainees turned over to the US by Pakistan in late 2001.

By comparing Latif’s Factual Return to his Gitmo File, we can be almost certain that this report is the cable numbered TD-314/00684-02. Read more →

The Detainee Debate Heats Up: The Rule of Martial Law Vs. the Unitary Spookery

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As I noted yesterday, Obama issued a veto threat for the detainee provisions included in the Defense Authorization. Since then, both Dianne Feinstein and Carl Levin have given speeches on the floor, arguing against (DiFi) and for (Levin) the provisions.

And while I’d be happy to see the provisions in question fail (because the provisions represent a further militarization of our country), effectively the argument being made is between those (the Republicans, enabled by Levin) who support further militarization of law and those (DiFi and, especially, the Administration) who want the Executive Branch to continue fighting terrorism (and whatever else) with an intelligence-driven approach bound by few legal checks.

DOJ’s Special Forms of Extended Interrogation and Coercion

In a sense, DiFi’s speech on Thursday looked like an appeal to rule of law. For example, she warns of the danger of “further militariz[ing] our counterterrorism efforts.” But what she really focused on in her speech–implicitly–are the tools the government has wrung out of the civilian legal system to make it easier to get intelligence (whoever picked a Senate Judiciary Committee member to be head of the Senate Intelligence Committee made this blurring of law and intelligence easier).

DiFi alludes to tools DOJ has that DOD does not. She mentions both Najibullah Zazi and Umar Farouk Abdulmutallab as people whose prosecution within the civilian justice system aided prosecution.

Suppose a terrorist such as Zazi were forced into mandatory military custody. Then the government could also have been forced to split up codefendants, even in cases where they otherwise could be prosecuted as part of the same conspiracy in the same legal system.

[snip]

It was FBI agents who traveled to Abdulmutallab’s home in Nigeria and persuaded family members to come to Detroit to assist them in getting him to talk. The situation would have been very different under Section 1032. Under the pending legislation, it would have been military personnel who were attempting to enlist prominent Nigerians to assist in their interrogation, and Abdulmutallab would have been classified as an enemy combatant and held in a military facility and, therefore, his family would not be inclined to cooperate. This is we have been told on the Intelligence Committee.

She appears to be invoking the way we’re getting people to talk: by threatening and persuading their families. In the case of Zazi, we got him to cooperate by charging his father. In the case of Abdulmutallab, we presumably made some guarantees about treatment if his family would persuade him to cooperate (maybe that’s why he stayed in a minimum security prison through the pre-trial period; I also wonder whether we threatened his prominent banker father).

Most charitably, this is akin to the problem Ali Soufan experienced with Salim Hamdan; Soufan was about to persuade Hamdan to cooperate in exchange for a shorter sentence when DOD dumped Hamdan in Gitmo where there was no option to trade cooperation for better treatment. As the case of Omar Khadr (who was not permitted to spend time with other detainees after he plead guilty) makes clear, in military custody, we lose control of the conditions of someone’s confinement as soon as they plead guilty, and so can’t use that as a tool to get people to cooperate.

But there’s something else DiFi is not saying, though is out there. With our creative interpretation of Miranda of late, we have interrogated Faisal Shahzad for two weeks without a lawyer; Manssor Arbabsiar for 12 days; and Ahmed Warsame for a month. We got Arbabsiar (and, I would bet, Warsame) to cooperate to ensnare others during the period of pre-arraignment arrest. Thus, for better or worse, civilian detention has actually been offering the government more ways to deploy detainees in intelligence operations than military detention.

Read more →

Senate Armed Service Committee Celebrates Agreement to Spend 32 Times More on Detainees

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As Josh Gerstein and Adam Serwer lay out, the Senate Armed Services Committee just passed a new version of the Defense Authorization mandating military detention for terrorists. The language on detention includes the following two paragraphs:

Except as provided in paragraph (4) [which is a national security exception], the Armed Forces of the United States shall hold a person described in paragraph (2) [an Al Qaeda related terrorist] who is captured in the course of hostilities authorized by the Authorization of the Use of Military Force (Public Law 107-40) in military custody pending disposition of the war.

[snip]

No amounts authorized to be appropriated or otherwise made available to the Department of Defense for fiscal year 2012 may be used to construct or modify any facility in the United States, its territories, or possessions to house any individual detained at Guantanamo for the purposes of detention or imprisonment in the custody or under the control of the Department of Defense unless authorized by Congress.

In other words, unless the government has a really good reason, they have to put accused terrorists caught during the AUMF-authorized war in military custody. And DOD can’t build a prison in the US specifically to house those detainees.

That makes it much more likely we’re going to put terrorist detainees at Gitmo, where as Carol Rosenberg recently reported, we spend 32 times as much holding prisoners as we spend in civilian prisons in the United States.

The Pentagon detention center that started out in January 2002 as a collection of crude open-air cells guarded by Marines in a muddy tent city is today arguably the most expensive prison on earth, costing taxpayers $800,000 annually for each of the 171 captives by Obama administration reckoning.

That’s more than 30 times the cost of keeping a captive on U.S. soil.

It’s still funded as an open-ended battlefield necessity, although the last prisoner arrived in March 2008. But it functions more like a gated community in an American suburb than a forward-operating base in one of Afghanistan’s violent provinces.

[snip]

It’s a slow-motion Berlin Airlift — that’s been going on for 10 years,” says retired Army Brig. Gen. Greg Zanetti, a West Point graduate who in 2008 was deputy commander at the detention center.

Alternately, we could put them in Bagram, the population of which has been ballooning under Obama’s Administration.

Today, there are more than 3,000 detainees at Bagram, or five times the number (around 600) when President Barack Obama took office in January 2009. There are currently 18 times as many detainees at Bagram than at the U.S. military prison at the Guantanamo Bay, Cuba, naval base, whose prisoner population has dwindled from a peak of 780 to 170.

[snip]

DOD is now reviewing bids from contractors to expand the facility to house up to 5,500 detainees. The project is expected to cost another $25 to $100 million when it is completed by the end of 2012.

It’s unclear what Bagram costs, per detainee.

But we do know it costs almost $1.2 million a year to keep a single troop in Afghanistan, for some of the same reasons it costs so much to keep Gitmo running, supply costs. The average federal prison guard in the US is paid about $55,000 (so figure $71,500 with benefits). Just the cost of the prison guard alone makes Bagram 16 times more expensive than a federal prison in the US, and that’s before you count the $60 million we’ve already spent on expanding the prison at Bagram and the $25 to $100 million we’re already planning on spending. And all those costs are based on a logistics chain through Pakistan, which is getting more and more questionable these day.

Meanwhile, the scary Underwear Bomber, Umar Farouk Abdulmutallab spent 21 months of pre-trial detention in a low security prison in MI. Not only did no one get hurt with him in low security custody in the US, but no one nationally even noticed!

This is ridiculous. The Republican insistence that we use military law when civilian law is better and cheaper is going to bankrupt this country. And it’s not going to keep us any safer.

FBI in Detroit Profiles Muslims and Arabs in Spite of 12 Whites Engaged in Terrorism

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As part of a new ACLU project to FOIA and map all the racial profiling the FBI has been doing, it liberated a Detroit FBI document describing its efforts to set up a “Domain Management” assessment (which seems to be a nice euphemism for racial profiling). It describes what it claims is the distinct counterterrorism threats in Michigan.

There are more than forty groups designated as terrorist organizations by the US State Department. Many of these groups originate in the Middle-East and Southeast Asia. Many of these groups also use an extreme and violent interpretation of the Muslim faith as justification for their activities. Because Michigan has large Middle-Eastern and Muslim population, it is prime territory for attempted radicalization and recruitment by these terrorist groups. Additionally, Sunni terrorist groups always pose a threat of attack on U.S. soil since it is the stated purpose of many of these groups. The Detroit Division Domain Team seeks to open a Type IV Domain Assessment for the purpose of collecting information and evaluating the threat posed by international terrorist groups conducting recruitment, radicalization, fund-raising, or even violent terrorist acts within the state of Michigan.

Of course, MI is not just home to a lot of Arab-Americans and Muslims. It’s also home to a bunch of right wing militias and all-around nutjobs. So using racial profiling to find terrorists–the FBI admittedly uses State’s list of international terrorists, which of course excludes domestic right wing terrorist groups–would miss the white terrorists we have in MI.

To give you an idea of what that would miss, I checked out all the press releases the Detroit FBI Office and US Attorney’s Office has put out since this document was written on July 6, 2009 to see what kind of crimes related to or possibly related to terrorism we’ve had in the state. Here’s what it showed.

  • October 28, 2009: 11 members of “Ummah” arrested, Imam Luqman Ameen Abdullah killed. (Ultimately the FBI backed off their claim these folks had any tie to terrorism.)
  • October 29, 2009: Mujahid Carswell (AKA Mujahid Abdullah) taken into custody by Canada’s RCMP for immigration violations.
  • October 31, 2009: Mohammad Alsahli (aka Muhammad Palestine) and Yassir Ali Khan taken into custody by Canada’s RCMP for immigration violations.
  • December 25, 2009: The Undie-Bomber tried to bring down a plane.
  • January 22, 2010: Syrian Mohamad Mustapha Ali Masfaka lied to Customs and Border Patrol agents about his ties to Holy Land Foundation; he was later convicted.
  • March 29, 2010: Nine white members of the Hutaree militia arrested for seditious plot to overthrow the government.
  • June 7, 2010: A 73-year old white man, Russell Hesch, and his son sent a letter to Bart Stupak threatening to paint the Mackinac Bridge with his blood in retaliation for voting for Obama’s health insurance reform.
  • April 21, 2011: A 42-year old white schizophrenic from the Upper Peninsula, Gary John Mikulich, planted a bomb outside the Federal Building.
  • August 3, 2011: Someone left a Molotov cocktail outside an abortion clinic in Detroit.
  • September 12, 2011: A Frontier Airlines flight was diverted because two men of Indian descent and a Saudi-Jewish woman, Shoshana Hebshi, had made a passenger suspicious.
  • September 23, 2011: A white St. Joseph man, Reed Berry, was arrested for ramming an FBI surveillance car; the agents were investigating him for alleged ties to a Foreign Terrorist Organization. (This was no in DOJ press releases, but since he was accused to foreign terrorist ties, this clearly fits.)
  • September 26, 2011: A white 64-year old man, John Lechner, arrested for having as much explosives as took down the Oklahoma City Murrah Federal building and talking about mercenaries. (Note, this was not in any FBI or DOJ press releases I could find.)

So while the FBI has been profiling Muslims (including, arguably, the African-American mosque the FBI labels the “Ummah”; while Shoshana Hebshi and the two Indian men were clearly profiled on 9/11, this was not by the FBI), 13 white people in Michigan have been alleged to engage in some kind of terrorism: The 9 members of the Hutaree, Russell Hesch threatening Stupak’s life, Gary Mikulich making a crazed bomb attack on the Federal building, John Lechner’s stash of 4000 pounds of explosives, plus the ties to a foreign terrorist organization the FBI alleges Reed Berry has (his attorney says they were surveilling Berry for protected speech). And that’s assuming the still unsolved clinic bomber was not white.

Not only will profiling result in the harassment of people like Hebshi and the extreme over-reaction of the FBI with Luqman.

But in MI, it also risks missing what–setting aside Luqman’s mosque–has actually been the majority of terrorists and alleged terrorists in recent years. That’s not just dumb. It’s dangerous.

Update: Added Lechner–h/t Lakeeffectsnow.

The UndieBomber’s 15 Minutes of Fame

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Here’s the entirety of the speech Umar Farouk Abdulmutallab gave after he plead guilty to the Christmas Day bombing.

10:32 a.m.

Abdulmutallab read from a statement saying he was guilty under U.S. law, but not under Islamic law, for the crimes charged. He said he tried to carry out the bombing in retaliation for the murder of innocent civilians in Iraq, Israel, Afghanistan, Somalia and elsewhere by the United States.

10:34 a.m.

He warned the U.S. that, if it continued to murder innocent Muslims, a calamity would befall the U.S.

If you laugh at us now, we will laugh at you later,” he said.

10:35 a.m.

He said committing jihad against the United States is one of “the most virtuous acts” a Muslim can perform.

The speech started no earlier than 10:23, it ended no later than 10:38. Quite literally, just 15 minutes or less for him to give the speech that is the primary reason people do not want terrorists tried in civilian courts.

The reason why we can’t have nice things like civilian law anymore (aside from all the torture-produced evidence we’re trying to hide) is because we might find out:

  • A Muslim man believes in Sharia law, not American law
  • A Muslim man correctly believes we have killed innocent civilians in Iraq, Israel, Afghanistan, Somalia, and other countries
  • Someone thinks the US might one day pay for its attacks on innocent Muslims
  • A radicalized Muslim man believes Allah will reward Jihad

That’s it. That’s what has people like Peter King and Buck McKeon and Lindsey Graham so scared that we have to rewrite our Constitution to give military law precedence over civilian law. They want to trade the legitimacy of today’s proceeding for largely secret proceedings where American citizens will be shielded from a failed terrorist’s 15 minutes of fame.

While we’re talking about how pathetic these fearful men are, I believe it’s safe to let you in on a little detail. The entire time Abdulmutallab has been in custody, he has been in a low security prison just 20 miles away from Ann Arbor, not some Gulag far away from our shore. And as it turned out, that, too, turned out to be okay.

What Is the Secret Item the Government Wants Withheld from Abdulmutallab?

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As I tweeted earlier, I find the timing of the Anwar al-Awlaki assassination to be rather curious. The first time we might hear real evidence supporting the government’s claim that Awlaki was operational, and not just producing propaganda, will be in Umar Farouk Abdulmutallab’s trial, which starts next week.

Which is why I’m curious about the government’s motion for a protective order submitted last Friday, seeking to have one item withheld from Abdulmutallab (who, remember, is technically defending himself; Judge Edmunds granted the motion on Monday).

The United States of America respectfully moves pursuant to [Criminal Procedure and CIPA] for a second protective order precluding the discovery of a particular item which contains classified information. The classified information is not exculpatory, is privileged, and is otherwise not discoverable.

A page and a half of the seven page filing (which includes a half page redacted description of the item in question) is background which I don’t believe to be boilerplate; that is, I think it is background specific to this filing. And that background includes a close focus on Abdulmutallab’s ties to Awlaki.

The defendant told the [FBI] agents that he was inspired to commit jihad against the United States as a result of regular visits to the web sites of Anwar Awlaki, a member and leader of Al Qaeda in the Arabian Peninsula (“AQAP”), which has been designated by the United States government as a foreign terrorist organization. The defendant stated that while in Yemen, he was able to make contact with members of Al Qaeda, who subsequently provided the defendant with the bomb and gave him training on its components. The defendant and other members of Al Qaeda discussed plans to attack the United States.

Now, I have no real suspicions about what this item is and I’m not suggesting the government is withholding it improperly.

But I find it curious that the government is, at this late date (and at a time when they were already watching Awlaki for their opportunity to kill him) finding items that must be withheld from Abdulmutallab. And I find the particular focus in this filing on his time with Awlaki–precisely the stuff that supports the claim Awlaki had given Abdulmutallab operational instructions–to be interesting.

Is there any reason why the government might be obliged to protect the assassination approval, which we know to be based in part on Abdulmutallab’s own testimony, from him?

Update: I’ve got just a few more major filings left, and thus far, I haven’t found one that mentions Awlaki. This is how the superseding indictment referred to Abdulmutallab’s time in Yemen, which is some of the most detail given on this front.

Defendant Umar Farouk Abdulmutallab is a Nigerian national. In August 2009, defendant Abdulmutallab traveled to Yemen for the purpose of becoming involved in violent “jihad” on behalf of Al Qaeda.

[snip]

In preparation for a suicide attack, defendant Abdulmutallab practiced detonating explosive devices similar to one which he later received for an attack on a U.S. airliner.

The government moved for an earlier protective order in August. That motion doesn’t mention Yemen at all.

Update: This request for expert testimony again mentions Yemen.

The First Superseding Indictment, on which defendant will be tried, alleges that he traveled to Yemen to become involved in violent jihad on behalf of Al Qaeda, a designated terrorist organization, as part of a conspiracy to commit an act of terrorism transcending national boundaries.

And it describes the importance of English-language propaganda.

Finally, the government seeks to admit three minutes and forty two seconds of the Al Qaeda produced video, America and the Final Trap1 and portions of the Al Qaeda in the Arabian Peninsula publication Inspire. Through testimony by the Al Qaeda expert, see Argument A, supra, the government will establish that America and the Final Trap and Inspire are produced by Al Malahem media, an Al Qaeda production company, that products of Al Malahem media serve as official statements by Al Qaeda, and thus are unquestionably authentic. The Al Qaeda expert will explain the reasons Al Qaeda produces Arabic language videos with accurate English language subtitles, as is the case with America and the Final Trap. The expert also will establish that such productions are created by terrorist organizations as part of and in furtherance of their criminal conspiracies, for a number of reasons. Those reasons include the goals of terrorizing their targets into fearing that additional attacks will be forthcoming, and to convince their own supporters and possible recruits that the terrorists are successful and are gaining the upper hand.

And it mentions the toner cartridge plot.

The conspiracy to commit aircraft attacks against the United States had not ended, as demonstrated, at a minimum, by the contents of America And the Final Trap and the 2010 toner cartridge conspiracy by Al Qaeda in the Arabian Peninsula.

Yet in none of these discussions–all of which involve actions in which Awlaki was central–does the filing mention the cleric.

The UndieBomber Trial Gets Interesting

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I used to have a bit of a party trick last year before I moved out of SE Michigan. At some opportune time, I’d surprise folks by telling them the UndieBomber, Umar Farouk Abdulmutallab, was in a prison just 20 miles from where we were in Ann Arbor, one you’d pass on the way down to Ohio.

Every time I did this, people were surprised to learn he was at that prison.

I raise this because of one of four developments (reported by Josh Gerstein) in the Abdulmutallab case that might make the trial something beyond the routine trial in October I had been expecting. These are:

  • Abdulmutallab is asking to have the trial moved out of Michigan
  • Abdulmutallab is asking to have statements he made while under sedation suppressed
  • Abdulmutallab is asking to have statements he made while at the Milan Correctional Facility suppressed
  • The government is asking for a protective order to withhold information from Abdulmutallab that appears to include exculpatory information

Now, from the standpoint of the defense, I think the request for a change of venue is a big mistake (remember Abdulmutallab is defending himself, although he is being assisted by a lawyer who seems to have been very involved in these filings). Given that this is a counterterrorism case, I presume it would only be moved to NY, DC, or VA. I suspect the jury pool would be demographically better for Abdulmutallab in MI than (at least) in VA. And, as my little party trick suggests, even people from among the jury pool who are exposed to counterterrorism issues on a regular basis (because they hear me talk about torture and wiretapping and such things) had pretty much forgotten Abdulmutallab was there just months after the attack. Finally, while I don’t know the entire manifest of the plane that Abdulmutallab allegedly attacked, Detroit is a hub, which means a lot of the passengers on the plane presumably connected on to somewhere else.

More importantly, if Judge Nancy Edmunds does consent to Abdulmutallab’s request, it will likely reignite the debate about what kind of trials alleged terrorists should have, and where. I assume at least some Republicans would use the event of a venue move to argue Abdulmutallab should be tried in Gitmo.

Particularly given the other filings in the case.

As a reminder, Abdulmutallab was detained in Detroit and taken to University of Michigan hospital for treatment. Throughout this period, Abdulmutallab was talking–under a public safety exception, the government has said. Then, 10 hours later, he was read his Miranda rights, and he stopped talking until such time as–weeks later–his family convinced him to talk.

But according to Abdulmutallab, in addition to the Miranda issue during the early period when he was talking (which I don’t expect to get much traction because it seems to fall squarely under a public safety exception), for part of it he was also under sedation, and hospital staff told federal agents he was not fit to be interrogated.

That hospital staff advised federal agents that the Defendant was in no position to conduct a legal interview because he had just been administered 300 mg of fentanyl. [sic–as Jim points out this seems to be the wrong dose]

That hospital staff were direct and clear when advising federal agents that the Defendant would not be able to conduct a legal interview for four to six hours.

In addition to challenging the admission of these statements (note, I think Abdulmutallab did speak to agents even before this), he is also trying to suppress statements made while at the prison they held him. He claims statements he made there–he seems to claim, all of them, which I find dubious–were made in the course of discussions about a plea agreement.

Defendant ABDULMUTALLAB met with government agents on numerous occasions at the Milan Correctional Facility. The government intended to obtain incriminating statements from Defendant regarding the alleged incident on December 25, 2009. In addition, the government engaged in plea negotiations with the Defendant during the meetings.
Before the meetings began, the government agents verbally agreed that they would not use any statements Defendant made, against him. Defendant relied on the government’s representation – as officers of the court – and made incriminating statements. See United States v. Dudden, 65 F.3d 1461, 1467 (9th Cir. 1995) (the government can grant the defendant varying degrees of immunity in an informal agreement). Allowing the government to use these statements at trial will violate the government’s agreement with Defendant.

Now, as I said, I find this much more dubious. There were several stages of interrogation at Milan (pronounced “My-lan,” btw). And I don’t believe all of these would have been in the context of plea negotiations.

Finally, there’s the government’s motion requesting a protective order,

…precluding discovery of certain classified information and precluding the defendant from inquiring of certain subjects during the cross-examination of government witnesses, because cross-examination of these subjects may result in the disclosure of classified information. The classified information the government seeks to protect is either not exculpatory, is privileged, or otherwise not discoverable.

Now part of this seems to stem from the fact that Abdulmutallab is defending himself (and so would get access to all this material himself–with many of the other alleged terrorists in civilian proceedings, their lawyers get such information, but they are forbidden from disclosing the information to their client). But note that last compound statement: this is information that is either not exculpatory or is privileged or is “otherwise not discoverable.”

This filing seems to suggest that some of this information is exculpatory, but is privileged (If it were really “otherwise not discoverable,” then why would it be included in this filing?). And they don’t even bother to say what kind of privilege. Is this a back-door state secrets declaration? The part of the filing that discusses this information is entirely classified.

And think of what kind of information this might possibly be. Just guessing here, but I think it might include,

  • Details about interrogation methods used with Abdulmutallab
  • Details about any pressure they used to convinced Abdulmutallab’s family to help get him to cooperate (remember Abdulmutallab’s father is a prominent Nigerian banker)
  • Information about Anwar al-Awlaki, including (potentially) information that shows AQAP didn’t consider Abdulmutallab a serious member; note this might include SIGINT
  • Information about how the government had information about Abdulmutallab, but didn’t act on it

I have no idea which of these they’re trying to hide, or even if I’ve thought of everything. But given how some of these issues–interrogation techniques, pressure on the family–go to behaviors that might otherwise be illegal, but seem to be increasingly used with alleged terrorists tried in civilian courts (both, I believe, were factors in Faisal Shahzad’s treatment), I find it interesting that the government refuses to share it with Abdulmutallab.

What I find interesting about all this, taken together, is what it suggests about our treatment of counterterrorism. This should be an open-and-shut case. There are tens of witnesses that saw Abdulmutallab try to blow up a plane, and at least some of his own statements must be admissible. But because of the way we’ve treated it, it seems to have introduced issues entirely of the government’s own making that will make it harder to try in civilian court. The government seems to be unable or unwilling to cleanly bracket off intelligence gathering. And–if the suggestion they’re hiding exonerating evidence under some kind of privilege is right–they continue to be unwilling to give alleged terrorists access to the exonerating information learned in intelligence collection, either.

I don’t think this makes the case for military commissions, which after all are mostly an attempt to pretend such actions don’t affect the legitimacy of the trial. But they seem to have unnecessarily introduced all the challenges they complain about when they try to justify military commissions.

A New Form of MI “Terrorist”: The Friendly Fire One

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There was a weird period last spring, as all the fearmongering in the country focused on the underwear bomber sitting in a jail just nineteen miles from me, after the autopsy of an African American imam in Detroit raised new questions about FBI’s pursuit of him as a terrorist, and after some of the only white people indicted under the WMD charges usually reserved for Muslims were arrested in my county, when it felt like Michigan was the melting pot of terrorism. Our local news was full of coverage of the al Qaeda terrorist, the purported black Muslim terrorist, and the alleged Christian militia terrorists all at one time.

Not that it gave me any special wisdom about terrorism, but from my vantage point in MI, self-confident claims about what made and did not make a terrorist always seemed too confident to me.

Which is why I find it particularly tragic that our abstract certainty about who is and who is not a terrorist has led to this: the friendly fire death of two Americans last week–including Navy medic Benjamin Rast from Niles, MI–in a Predator drone strike in Afghanistan.

The investigation is looking into the deaths of a Marine and a Navy medic killed by a Hellfire missile fired from a Predator after they apparently were mistaken for insurgents in southern Afghanistan last week, two senior U.S. defense officials said Tuesday.

[snip]

Marine Staff Sgt. Jeremy Smith of Arlington, Tex., and Seaman Benjamin D. Rast of Niles, Mich., were hit while moving toward other Marines who were under fire in Helmand province.

Perhaps appropriately, the LAT just laid out in chilling detail the ways in which our drone targeting is prone to human error (the LAT article appeared after Smith and Rast were killed but before DOD admitted they were killed by a drone strike). In an effort to bypass unreliable Afghan partners, we have moved increasingly to targeting people who act or look like insurgents. But from 15,000 feet above the ground, with analysis conducted 7,000 miles away, it seems Americans own troops can look like insurgents, too.

My condolences to the families and friends of these men. May we learn a lesson from this about the false certainty that drives our war against terrorism.

What Goes into Watchlisting?

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A bunch of national security journalists are tracking down the three Qataris — described as a potential fifth 9/11 cell — described in this WikiLeaks cable and first reported by the Telegraph. I wanted to do the reverse of what they’re doing — to use their reporting to see how someone gets on a terrorist watchlist.

The cable, written by our Embassy in Qatar, recommends that Mohamed Ali Mohamed al Dahham al Mansoori, a UAE citizen, be added to the National Counterterrorism Center watchlist. It bases that recommendation on what it calls an “ongoing” FBI investigation into whether Mansoori helped three Qataris, who in turn are suspected of either conducting surveillance of 9/11 targets or of preparing to join the attack, only to leave the country on September 10 instead. While the cable provides specific details about the three Qataris — including that their tickets were arranged by an unnamed “convicted terrorist” — it explains the tie to al Mansoori simply,”that the men spent a week with Mr. al Mansoori traveling to different destinations in California.”

The explanation raises some questions about the watchlisting process. That our Embassy in Qatar — not the FBI with its reported ongoing investigation, not our embassy in Abu Dhabi — would be placing someone on the terrorist watchlist eight years and five months after 9/11 is rather curious.

Particularly given reports that the FBI pursued the leads on the Qataris and Mansoori and ultimately could find no direct tie with 9/11.

Philip Zelikow says the 9/11 Commission was aware of a similar lead, but never proved a tie with 9/11.

In 2004, the commission did not have information reliably linking these people to the 9/11 plot. As best we can remember, we were aware of a lead with some of these elements.  At that time it had been further investigated and, from what we could learn, it had not panned out.

The FBI (perhaps a little sensitive about the possibility they may have missed something earlier) claims the cable is not accurate.

The cable, the FBI official said, was not accurate. “They’re not sought by us and they’re not 9/11 plotters,” the FBI official said, speaking anonymously so he could speak candidly.

But the FBI source must mean the report of an ongoing FBI investigation is inaccurate. Like Philip Zelikow, this source says the content of this cable was investigated but dismissed.

The man named in the cable, Mohamed ali Mohamed al-Dahham al-Mansoori, was indeed investigated in the wake of the 2001 attacks, but after interviewing him, the FBI eventually decided that he did not play any role in the plotting. Officials remained concerned, however, that he might be a future threat to the US and revoked his visa and deported him.

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