Dzhokhar Charged, Administration Confirms Civilian Prosecution

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Two important updates on the Marathon Bomber.

First, according to WCVB, Dzhokhar Tsarnaev was charged this morning in front of a magistrate judge in his hospital bed.

Dzhokhar Tsarnaev, the surviving accused Boston Marathon bomber, has been arraigned in his hospital bed, a federal official tells NewsCenter 5’s Kelley Tuthill.

The complaint against him has been sealed and is not public, according to Gary Wente, the circuit executive for the U.S. Courts in Boston.

A magistrate went to Beth Israel Deaconess Medical Center Monday for Dzhokhar Tsarnaev’s initial appearance.

Also this morning, Jay Carney announced at his press conference that Dzhokhar will be tried in civilian court; he will not be treated as an enemy combatant (which he couldn’t be legally in any case).

Now let’s see what kind of access the government permits his lawyer.

Update: Here’s the complaint (h/t Mike Scarcella)

Update: Here’s a transcript from the appearance. (h/t NYT)

The Shut-Down Question

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While I think it’s a crucial question to debate going forward, at this point I am agnostic about whether the decision to shut down the entire city of Boston on Friday was the right one or not. Furthermore, thus far the question has been presented as an either/or choice: to shut down all of Boston, or none of it. It is possible the best decision would have been to shut down Watertown.

My biggest concern, however, is the possibility that the decision communicates to potential terrorists that they can shut down an entire city with 4 pressure cooker bombs and one dead cop.

All that said, I think as we discuss the question going forward, we need to be clear that the analysis probably needs to evaluate three steps in the process:

  • The decision to release the photos of the brothers on Thursday night
  • The actions surrounding the firefight in Watertown
  • The decision to shut down Boston

After all, the only thing that changed between Tuesday — when Boston remained open — and Friday — when it was shut down — is the murdered MIT officer and the hijacked Mercedes. The brothers were on the loose, presumed very dangerous, the entire time. Indeed, there might have been more reason to lock the city down immediately, to prevent their getaway. But the city did not shut down unti Friday, after they had been flushed out by release of the pictures. So to some degree, you need to start with the decision to release the pictures.

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Dzhokhar Tsarnaev: The Big Issue Is Not Miranda, It’s Presentment

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Particularly given Lindsey Graham’s persistent tweeting yesterday that “the last thing we may want to do is read Boston suspect Miranda Rights,” there was a lot of discussion in the moments after Boston Marathon bombing suspect Dzhokhar Tsarnaev was captured last night about whether he would be read his rights.

At first, there were reports he would be. But then DOJ announced he would not be read Miranda immediately; they would invoke the public safety exception to question him.

“The suspect is en route to the hospital for immediate treatment,” the official tells TPM’s Sahil Kapur. “But we plan to invoke the public safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence.”

As of about 40 minutes ago, he had still not been read his rights.

Now, thus far, I’m actually not that worked up about Miranda rights (though I may get there soon). As Orin Kerr explains, the public safety exception is a legally recognized law, and Miranda itself only limits what can be admitted as testimony against Dzhokhar in his trial (I’m betting he’ll plead guilty in any case). The government appears to have so much evidence against him in any case, any confession he makes will likely not be necessary to convict him.

Mind you, as Charlie Savage reported two years ago, the government has been institutionalizing longer delays before they give Miranda warnings, most notably with people they (or foreign proxies) interrogate overseas first, followed by a clean team Mirandized interrogation. And as the reference to “gain[ing] critical intelligence” above suggests, the Obama Administration is stretching the intent of pre-Miranda interrogations to include more substantive interrogation (update: Emily Bazelon also made this point).

But here in the US, the delays on Miranda warnings aren’t that long. The best–quite similar–example is the 2009 UndieBomber, who was interviewed for about 50 minutes under a public safety exception when he was captured. That entire interrogation was deemed admissible and in fact formed a significant part of the opening arguments in his trial (which didn’t get much further than opening arguments before he plead guilty). So the UndieBomber’s case is one reason the Administration is confident they could question Dzhokhar without Mirandizing him at first (though the length of time has gotten far longer than used with the UndieBomber).

There’s a precedent from the UndieBomber I find more troubling though. The judge in that case also allowed the use of UndieBomber’s statements from the hospital after he had been given a fair amount of sedation. While there was a dispute about how much he got and what kind of effect that might have had, conversations he had with a nurse were also used in the opening arguments of the trial. The two issues together — a suspect interviewed without a lawyer after he’s been given serious drugs, both of which will be apply to Dzhokhar, as well — is troubling on legal, humanitarian, and practical grounds. The High-Value Interrogation Group had already been brought in last night, which suggests he may well be asked questions while in precarious medical state.

But the big issue, in my opinion, is presentment, whether he is brought before a judge within 48 hours. In addition to stretching Miranda, the government has also been holding and interrogating suspects for periods — up to two weeks for American citizens and far longer for non-citizens — before they see a judge. Not only does this postpone the time when they will be given a lawyer whether they ask or not (because judges are going to assign one), but it gives the government an uninterrupted period of time to use soft coercion to get testimony and other kinds of cooperation.

In my opinion, two of the most troubling cases like this, both involving naturalized citizens accused of terrorism, are Faisal Shahzad and Manssor Arbabsiar.

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Meanwhile, Across the Globe…

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In West, TX, the Mayor says the death toll will likely reach 35-40, including 10 first responders.

“We are out there searching the rubble, looking in each and every house. We are trying to locate each and every citizen,” Mayor Tommy Muska said in a telephone interview with The Times.

Muska said he arrived at the count of 35 to 40 dead because all other residents and first-responders in the area have been identified. Among those who were missing and believed dead, he said, were as many as six firefighters and four emergency medical technicians.

In Baghdad, in the second major pre-election terror attack (the other was on Monday, before the Marathon attack), 32 people died in a cafe bombing.

A suicide bomber set off his explosive belt inside the cafe on Thursday night. The cafe was packed with young people enjoying water pipes and playing pool.

Some bodies were found in a back street as people were thrown out of the cafe by the powerful explosion.

What’s happening in Boston is horrible (though undoubtedly exacerbated by the 24-hour crappy cable coverage and the decision to tip the perpetrators and set off this massive manhunt).

But I’m hearing a lot about this Boston tragedy being unique. The only thing that makes it unique is the media response.

The Downside of Losing Blabby Brennan as Homeland Security Czar

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Screen shot 2013-04-17 at 4.03.26 PMAs I’ve noted in passing, the Boston Marathon will be the first major homeland security episode that John Brennan’s replacement, Lisa Monaco, will coordinate at the White House. As NJ describes in this profile, Monaco has worked for years at FBI and DOJ in national security, so it’s not like the Administration loses expertise with Monaco in the Homeland Security Czar.

But it does mean the Administration doesn’t have John Brennan, who has been known to give briefing on crises to his predecessors with TV contracts, as when he leaked that UndieBomb 2.0 was an Saudi sting to Fran Townsend and Richard Clarke.

About an hour or two ago, the media was buzzing, with CNN in the lead. The FBI had identified a suspect, they reported. The FBI had arrested someone, and would be bringing the suspect to the Court House, they reported. Along the way John King suggested, video evidence to the contrary, the suspect was a “dark skinned male.”

A key source in those report was Fran Townsend, working from tips from people inside government.

Ultimately, FBI actually released a press release making clear there hadn’t been an arrest.

Meanwhile, in response to CNN and other outlets’ reporting, a big crowd had formed at the courthouse. Predictably, a bomb threat came into the courthouse, so then the police had to evacuate the courthouse.

As CNN’s reporters were standing around trying to avoid apologizing for possibly tipping of the suspect of the attack, they started blaming their sources, suggesting they had been “used” to flush out the suspect, even while warning that saying “too much” might lead the suspect to do some undesirable things.

It was a thorough clusterfuck.

Mind you, I have every reason to believe that Monaco is doing a great job, and I actually don’t think it’s the job of the Homeland Security Advisor to hand feed the cable news channels.

But I guess blabby Brennan would have at least ensured that Townsend got her story correct.

Update: This chart of the clusterfuck is pretty funny.

Claire McCaskill: Why Aren’t We Calling Sandy Hook Terror?

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Janet Napolitano is testifying before the Senate Homeland Security Committee, purportedly on the budget. Not surprisingly, she’s getting a ton of questions about the Boston Marathon attack and immigration.

But in a smart series of questions that will undoubtedly be controversial, Claire McCaskill challenged Napolitano to explain why we so quickly called Boston a terrorist attack, but wouldn’t call Sandy Hook a terrorist attack. Noting that we still don’t know the motive behind either attack, McCaskill asked (these are my immediate transcriptions),

Other than weapon, is there any difference between Sandy Hook and Boston?

[snip]

We are so quick to call Boston terror, why aren’t we calling man w/high capacity magazine a terrorist?

[snip]

As I look at it w/eyes of prosecutor, I find it troubling that one is treated to cause so much more fear than other.

[snip]

It’s possible both had same motive, just one chose military weapon, the other chose homemade explosive.

It’s a provocative, but necessary question. The crime of terrorism relies on having a political motive. In both these attacks, we don’t know motive. But two days after Boston, we’re treating it as terrorism, while the attack that killed 20 children in their school still isn’t called such.

My inclination would be to call neither terrorism. McCaskill is right that the term just serves to generate fear.

But I’m glad she asked the question.

Afghanistan Confirms Eleven Children Killed in April 6 NATO Air Strike

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Partial screen-grab of the Khaama Press article confirming eleven children were killed in the April 6 NATO air strike in Kunar province. Various reports of the strike include this image as well as other photos taken from slightly different angles of the same group of victims.

Partial screen-grab of the Khaama Press article confirming eleven children were killed in the April 6 NATO air strike in Kunar province. Various reports of the strike include this image as well as other photos taken from slightly different angles of the same group of victims.

Khaama Press reports today that a group of investigators appointed by the Afghan government has confirmed that eleven children were killed on Saturday in a NATO air strike in Kunar Province. Although several press reports indicate that NATO has said that it is investigating the strike, I can find no word on the Defense Department or ISAF websites mentioning this strike. The absence of any report from NATO is puzzling, since their site provides near-daily accounts of actions under the heading of “Joint Command Operational Update”.

Here is how Khaama Press relates the confirmation of the deaths:

Head of the Afghan delegation appointed by Afghan president Hamid Karzai to probe NATO airstrike in eastern Kunar province of Afghanistan confirmed at least 11 children and 4 women were killed during raid.

The delegation also added that at least 25 people had suffered casualties during the air raid in this province.

The airstrike was carried out during a joint military operation conducted by Afghan and coalition security forces in Shegal district of eastern Kunar province three days.

The delegation met with the families of the victims after being appointed by president Hamid Karzai.

Two very important details about the strike come in the final paragraph:

At least 7 Taliban militants were also killed during the airstrike, the delegation confirmed adding that 4 residential houses were damaged during the airstrike.

The details that Taliban militants were killed and that more than one house was damaged are important because of the other information that has come out regarding the incident.

The day after the strike, the Washington Post carried an AP article about it. Near the end of the article, AP relayed information that came from a local official:

Afghan officials said the airstrike occurred after a joint U.S.-Afghan force faced hours of heavy gunfire from militants. The joint force was conducting an operation targeting a senior Taliban leader that began around midnight Friday in the Shultan area of Kunar’s Shigal district, according to tribal elder Gul Pasha, who also is the chief of the local council.

The remote area is one of the main points of entry for Taliban and other insurgents trying to move across the mountainous border from neighboring Pakistan, where they enjoy refuge in the lawless northwestern area.

“In the morning after sunrise, planes appeared in the sky and airstrikes started,” Pasha said in a telephone interview, adding that the fighting didn’t end until the evening.

“I don’t think that they knew that all these children and women were in the house because they were under attack from the house and they were shooting at the house,” he said.

There were slightly differing accounts of the death toll.

Pasha said the main Taliban suspect was in the house that was hit and was killed along with a woman and the children, ages 1 to 12, who were members of the suspect’s family.

So Pasha is claiming that the children all belonged to the main Taliban suspect and were in the same house where he was located. That is very interesting considering that in an article published April 8 that also mentioned this attack, Khaama Press featured a government condemnation of the use of civilians as human shields: Read more →

Yet Another Taliban Attack Using Afghan National Army Uniforms

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At the height of the green on blue killing outbreak, one aspect that stood out was that the attackers often had access to Afghan military and police uniforms whether they were actual members of these groups or not. As the Taliban shift their targets this year to attacking the Afghan military and government, it appears that the tactic of attackers disguising themselves in official uniforms is continuing. Today, there was a major attack on a court complex (and a nearby bank office) where Taliban attackers were wearing Afghan National Army Uniforms.

From the New York Times:

A group of eight Taliban insurgents dressed in Afghan Army uniforms staged a complex assault on a provincial government compound in Western Afghanistan on Wednesday morning, killing at least six officials and civilians and seizing several hostages in one of the buildings, officials and witnesses said.

/snip/

Officials said that the violence in Farah began after insurgents detonated a Ford Ranger laden with explosives near the entrance of the government compound. Government officials said the Taliban seized the second floor of the provincial court building, which is near the offices of the mayor, prosecutor and the governor, among other officials.

In addition to the at least six people killed in the attack, roughly 75 others were wounded, including women and children, according to hospital officials. Shah Mohammad Noor, head of the regional Court for western Afghanistan, said four of the attackers had been killed so far.

“The firefight is still ongoing,” said Mohammad Akram Khpalwak, the governor of Farah province. “The terrorists are still resisting.”

We learn from Reuters that the timing of the attack was not random, as the court proceedings going on at the time were specifically targeted:

Five militants stormed a court in Afghanistan on Wednesday where Taliban insurgents were standing trial, killing seven people and wounding 75, officials said.

At least one of the attackers blew himself up and a gun battle between Afghan security forces and an insurgent holed up inside the court was going on in the capital of the western province of Farah, near the Iranian border, said provincial deputy governor Mohammad Younis Rasouli.

“They stormed the court as a trial was being held to convict 10 Taliban fighters,” he told Reuters, adding that four civilians and three members of the security forces were killed.

The Taliban claimed responsibility for the attack in a text message to media, spokesman Qari Yousuf Ahmadi said, adding that the insurgents standing trial had been freed in the attack.

I suppose there could be a language or translation issue here, but the matter of fact statement that the “trial was being held to convict 10 Taliban fighters” kind of stands out here as not quite in line with the usual concept of a criminal court proceeding. The willingness of a Taliban spokesman to attach his name to a text claiming credit for the attack while it was still onging is also pretty stunning in its own right.

ToloNews adds that a bank was targeted along with the courthouse:

Several gunmen have launched a coordinated attack on a court building and a private bank branch in western Farah province, killing at least six people and wounding more than 70 others on Wednesday morning, officials said.

/snip/

Two gunmen, wearing Afghan National Army’s uniform, entered the primary court building and two others managed their way into the provincial branch of New Kabul Bank.

Extra forces have been deployed to gun-down the insurgents.

And AFP (via Dawn) informs us that the Taliban were so open in taking credit for the attack that they even posted it on their website:

Taliban militants fighting the US-backed central government immediately claimed they were behind the attack.

“Our fighters attacked several government buildings in Farah according to their planned tactic. They conducted the attack with small arms and grenades,” the group said on its website.

The battle for the hearts and minds of the Afghan public now appears to be between the Afghan government and the Taliban with the US (and NATO) in the process of becoming more spectators than participants.

Prosecuting Our Own Conspiracies

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My first reaction when I heard about the case of Eric Harroun — the Army veteran arrested last week on one count of conspiring to use a WMD (in the form of a rocket propelled grenade) — was that we were going to need bigger jails, because we’ll surely be arresting all our Qatari allies who are also conspiring to arm the al-Nusrah Front with things like RPGs.

But his father’s claim he was working for the CIA (which might explain why an FBI officer assigned to the Washington Field Office would file this case in Eastern District of VA, the CIA’s home district) makes the charges all the more interesting. Certainly, the affidavit reads like someone who was trying to set up cover as a terrorist recruit. Moreover, between the multiple videos he posted and the 4 FBI interviews he had before he got a lawyer suggest he wasn’t at all worried about being charged for associating with what he said (in one of those lawyer-less interviews) he knew to be a designated terror organization.

If he had a formal role with the CIA, it also might explain how Harroun managed to reenter Turkey without his passport.

HARROUN stated that he was able to re-enter Turkey on or about February 10, 2013, without his passport.

Is also might explain who is paying for lots of international travel with no apparent means of support. And it might explain why a US Army vet needed to be trained on how to use an RPG.

So if Harroun’s father is right, and he was working for CIA, then why is he in jail?

There are two details I find particularly interesting. First, the affidavit concentrates on Harroun’s condemnation of Zionism.

On or about March 11,2013, FoxNews.com published an article based in part on an interview of HARROUN. In the article, HARROUN acknowledged that he had been fighting with Syrian rebels, including the al-Nusrah Front, but stated that he had returned to Turkey. According to the article, HARROUN’s Facebook wall included the quote: “The only good Zionist is a dead Zionist” and HARROUN stated that he intended to travel to Palestine because of Israeli atrocities there.

[snip]

During the March 12 interview, HARROUN was asked about his comment that “the only good Zionist is a dead Zionist.” HARROUN stated that he equated Zionism with Nazism and Fascism.

And it appears the March 11 Fox article may be what led the FBI in Turkey to start investigating Harroun, which was actually published a month after Harroun had returned to Turkey from Syria. The three earlier things Harroun posted about his involvement in Syria don’t seem to have alarmed the FBI. (Note: I’m not sure when it became a crime to utter anti-Zionist statements, but apparently FBI now treats it as evidence of terrorism.)

Add in the fact that he was associated with a downed helicopter.

On or about February 14, 2013, an individual with access to a Facebook account which uses HARROUN’s name and profile photograph shared a link to a video of a helicopter that appeared to have been shotdown. Based on my review of the public information associated with this account, I believe that this account is HARROUN’s Facebook account. In the post referenced above, the text accompanying the video stated “Downed a Syrian Helicopter then Looted all Intel and Weapons!” The video was publicly available on the Facebook account, and FBI obtained a copy of the video. The video shows a downed Syrian helicopter and depicts HARROUN riding in a jeep with other individuals wearing military-style clothing and in possession of weapons. HARROUN is celebrating in the video and makes statements in English in support of the downing of the helicopter.

That is, Harroun has very publicly performed Israel’s nightmare: anti-aircraft weapons on its northern border wielded by anti-Zionists threatening to head to Palestine next. By prosecuting him, are we pretending that our policy is not one that poses a risk to Israel.

Or maybe Harroun’s just in jail because the Fox article made it clear we’re actually arming the al-Nusrah Front?

Ben Wittes Relies on Obviously False Document to Claim Other Document False

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For those coming from Wittes’ so-called response to my post, here’s my response to that response, which shows that Wittes effectively cedes the point that Fredman’s memo is dishonest. 

In a post subtitled “Just Shut Up About Jonathan Fredman” (really!) Ben Wittes argues we should not hold former CIA Counterterrorism Center lawyer Jonathan Fredman responsible for paraphrases attributed to him in the Senate Armed Services Committee report on torture because Fredman wrote a memo claiming he didn’t say those things and because he’s a career official, not a political appointee.

Fredman is a personal friend of mine, but this is getting ridiculous. It’s one thing to hold political appointees responsible for the things they did, said, and wrote. It’s quite another thing to hold career officials accountable for things they didn’t say, do, or write.

Now, in point of fact, Fredman’s memo does not deny saying “if the detainee dies, you’re doing it wrong.” He says,

Those notes, which were misleadingly labeled by their author as “minutes,” to the best of my knowledge were never circulated for comment and contain several serious misstatements of fact. Those misstatements were then compounded by the false allegation at the hearing that the so-called minutes contained quotations from me; the first page of those so-called minutes themselves expressly states that “all questions and comments have been paraphrased” — and, I might add, paraphrased sloppily and poorly.

And,

I expressly warned that should a detainee die as a result of a violation, the responsible parties could be sentenced to capital punishment.

And,

I noted that if a detainee dies in custody, there will and should be a full investigation of the facts and circumstances leading to the death.

And,

I again emphasized that all interrogation practices and legal guidance must not be based upon anyone’s subjective perception; rather, they must be based upon definitive and binding legal analysis from the Department of Justice;

And, after specifically asserting the paraphrase about the Istanbul conference is inaccurate, Fredman concludes,

I did not say the obscene things that were falsely attributed to me at the Senate hearing, nor did I make the absurd comment about Turkey that the author similarly misrepresented. The so-called minutes misstate the substance, content, and meaning of my remarks; I am pleased to address the actions that I did undertake, and the statements that I did make.

Now perhaps Fredman includes “if the detainee dies, you’re doing it wrong,” in his reference to “obscene things,” but he doesn’t specifically say so.

Funny, isn’t it? That a lawyer would write a 6-page memo purportedly denying he said something really outrageous, but never get around to actually denying the statement in question, even while specifically denying another one?

Yet Wittes tells us to shut up shut up shut up about his friend, based on that non-denial denial.

Now, in a twitter exchange about Fredman, Wittes assured me he read both the SASC report and the OPR report on torture. So either he’s a very poor reader, or he doesn’t want to talk about how disingenuous it has since become clear Fredman’s memo was.

The rest of the memo is, by itself, proof that Fredman misrepresents his own actions relating to torture.

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