How Long Was Abu Ghaith Detained in Jordan? Was He Tortured There?

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Barack Obama and Eric Holder, in my opinion, have violated the Constitution and international laws on a large number of fronts in carrying out the Great War on Terror, but they are to be commended for their move to try Osama bin Laden’s son-in-law, Suleiman Abu Ghaith, in federal court rather than in a military commission at the US prison in Guantanamo Bay, Cuba. However, in reading reports in this rapidly developing story, a couple of key questions stand out. We only learned yesterday, when New York Republican (or Democrat?) Peter King first broke the news that Abu Ghaith had been captured, that he was to appear today at an arraignment in New York. The exact date on which he was detained is not known and it appears that he spent at least some time in custody in Jordan. The involvement of Jordan in this case is highly problematic, because the Bush administration relied heavily on Jordan for torture of suspects who eventually were sent to Gitmo.

Lara Jakes of AP broke what seems to be the first report on Abu Ghaith’s capture:

Rep. Peter King, the former chairman of the House Homeland Security Committee, credited the CIA and FBI with catching al-Qaida propagandist Sulaiman Abu Ghaith in Jordan within the last week. He said the capture was confirmed to him by U.S. law enforcement officials.

A Jordanian security official confirmed that al-Ghaith was handed over last week to U.S. law enforcement officials under both nations’ extradition treaty. He declined to disclose other details and spoke on condition of anonymity because of the sensitivity of the matter.

But just how long was Abu Ghaith in Jordan? Here is NPR:

Sources familiar with the case tell NPR that bin Laden’s son-in-law left Iran last month to travel to Turkey. He entered the country under a false passport and Turkish authorities subsequently found him and arrested him in a luxury hotel in Ankara, the Turkish capital. They held him briefly but then decided that they couldn’t detain him because hadn’t committed a crime on Turkish soil.

Abu Ghaith is originally from Kuwait. He was stripped of his passport soon after 9-11, so he is essentially stateless. Nevertheless, the Turkish authorities decided to deport him back to Kuwait via Jordan.

It was during that transfer that U.S. officials picked him up, officials said. Some media outlets are reporting that the CIA was involved. Others say it was the Special Forces.

The U.S. government has not said how Abu Gaith came into its custody. But he was flown to New York after a big internal discussion within the U.S. government on the best venue in which to try him. And it appears the decision was to bring charges in a federal court.

Here is how the Justice Department described which US agencies were involved in the capture:

The charges and arrest of Abu Ghayth are the result of the close cooperative efforts of the U.S. Attorney’s Office for the Southern District of New York, the Joint Terrorism Task Force – which principally consists of agents and detectives of the FBI and the New York City Police Department – the United States Marshals Service and the National Security Division of the U.S. Department of Justice.  The Justice Department’s Office of International Affairs and the U.S. Department of State also provided assistance.

The question of whether Abu Ghaith was held by Jordan and for how long is important because of the torture Jordan carried out on behalf of the US during the Bush administration. From a Washington Post story in 2007: Read more →

Eric Holder Invokes Article II in Suggesting Congress Can’t Legislate Lethal Force

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As I lay out in this Salon post, Eric Holder told Chuck Grassley that Article II of the Constitution would make probably any attempt to limit the use of lethal force in the US unconstitutional.

 Chuck Grassley, R-Iowa, asked Holder whether Congress could prohibit the targeted killing of Americans in America. “Do you believe Congress can pass a law prohibiting POTUS to use lethal force on U.S. soil?” he bluntly asked, explaining he meant the prohibition would apply only where a person did not present an imminent threat.

“I’m not sure that such a bill would be constitutional,” the attorney general responded. “It might run contrary to the Article II powers that the president has.” Article II is the section of the Constitution that lays out the president’s authority as commander in chief of the military.

Holder went on to embrace a view of the AUMF (as he has before) that ignores Congress’ refusal in 2001 to authorize the use of military force in the US.

Holder embraced a view of the 2001 Authorization to Use Military Force that completely ignores the legislative history of the law that authorized the war against al-Qaida. “We didn’t exempt the homeland in the AUMF did we?” Lindsey Graham, R-S.C., asked the attorney general, in a question setting up his support for presidential use of lethal force in the U.S. “No,” Holder replied, “I don’t think we did.”

The attorney general may believe Congress authorized the use of lethal force in the U.S. with the AUMF, but former Senate Majority Leader Tom Daschle has made it clear that Congress refused to authorize military force in the U.S. “Literally minutes before the Senate cast its vote,” Daschle revealed in a 2005 Op-Ed that described the legislative process behind the AUMF, “the [George Bush] administration sought to add the words ‘in the United States’” into the authorization. Such a change, Daschle continued, “would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens.”

Back in 2001, Congress very specifically refused to authorize lethal force against Americans.

It has long been clear that the Administration believed — as John Yoo did — that nothing can limit their authority in the war against terror. But these were rather more blunt admission than normal.

Karzai Claims Final Handover of Parwan Prison Coming, Will Release “Innocents”

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In a move that is guaranteed to provoke another tantrum from Lindsey Graham, Afghan President Hamid Karzai announced to the Afghan parliament today that final handover of the Detention Facility in Parwan to full Afghan control will take place on Saturday and that he plans to release prisoners that he says are innocent. Both AFP and Radio Free Europe have reported Karzai’s claims. From AFP:

“Our efforts for the transfer of the US-run prison, years-long efforts, have eventually paid off and next week the transfer will at last take place,” Karzai told the opening of a new parliamentary session in Kabul.

“This transfer of prison will take place on Saturday,” he added.

“We understand that there are some innocent people in these jails, I will order their release, no matter if there is criticism.”

Radio Free Europe also carried Karzai’s call for abuse to end in Afghan prisons:

Karzai on March 6 also called on his security forces to end incidents of torture and abuse of their countrymen.

“Today, I want to promise the people of Afghanistan that they are safe inside their houses,” Karzai said. “The law should take its course only in relations to the criminals. I call on their parliament to raise their voice and react strongly to cases of abuse, if they hear about it. As long as we do not end abuse and torture in our own institutions, we cannot stop others.”

An investigation by the government last month unveiled widespread abuse in prisons run by Afghan forces. The findings backed a recent United Nations investigation that Kabul initially rejected.

These words from Karzai on ending abuse in Afghan prisons are an encouraging development. Let’s hope the words are followed with action against those who have been involved in torture.

If it does occur, this handover will be an important next step in the US transferring authority to the Afghan government. However, handover of the prison has been a very long process in which the US has bargained in bad faith. Back in November, Karzai lashed out at US deception in this process.

Note also Karzai’s reference today to Afghans being “safe inside their houses”. That is clearly a reference to the hated US practice of night raids, which Karzai has also been looking to end. Of course, US night raids are the primary source of innocent Afghans being in US-run prisons, so it should be no coincidence that Karzai would speak of innocents being detained and night raids in the same speech.

It should also be noted that the US has a long history of secret prisons in Afghanistan and, as Marcy has noted, Obama still claims the right of indefinite detention without charges in Afghanistan, so don’t look for Saturday’s handover, if it occurs, to include those prisoners that Obama and Holder believe to be their most important, even if they can’t come up with a way to charge these prisoners with any actual crimes.

Karzai’s move to release prisoners he says are innocent could well provoke a showdown. As I reported last April, the prison agreement (and the night raid agreement, for that matter, too) although described as giving the Afghans full authority, in reality was a sham that left the US with full veto power over the release of prisoners. Will the US try to prevent Karzai releasing these prisoners? Or will the US simply re-arrest them and take them to a facility still under US control?

Does This Explain Why Minh Quang Pham Is Languishing Away?

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TBIJ has a troubling report (see also this Independent story) on a number of British citizens who have been stripped of their citizenship so they can be targeted by drones or rendered here to the US. I described the fate of one of them — Mahdi Hashi — here. Another was the Russian spy Anna Chapman, though that happened after her arrest here.

I’m particularly interested, however, in this entry in TBIJ’s report.

B2
Deprived December 2011. Successfully challenged. Government now appealing.

This is one of three known cases where notice has been served on an individual while they were still in the UK. B2 came to the UK as a child with his refugee Vietnamese parents. He became a UK citizen in 1995, and later converted to Islam. In 2010 he reportedly traveled to Yemen, where MI5 alleges he trained with al Qaeda in the Arabian Peninsula (AQAP). He apparently returned to the UK in July 2011 and the Home Secretary informed him he would lose his British citizenship that December. B2 appealed, saying the decision would make him stateless. The Vietnamese government agreed that he was not its citizen, and the order was overturned. However the Home Office told the Bureau it is appealing. B2 is thought still to be in the UK.

These details make B2 sound like Minh Quang Pham, whom I wrote about here and here. Though here’s the timeline DOJ offered when they conspicuously announced Pham’s arrest last May, with a few additional details from Pham’s docket included.

December 2010: Pham travels from the UK to Yemen.

March 2011: Pham’s military training in Yemen begins.

March and April 2011: Pham carries a Kalashnikov.

April 2011: Pham works with Samir Khan and meets Anwar al-Awlaki.

July 2011: End date for military training in Yemen.

September 27, 2011: AQAP releases Inspire, Issue 7.

September 30, 2011: Khan and Awlaki killed in drone strike.

December 2011: End date of material support charges.

May 24, 2012: Pham indicted in NY.

June 29, 2012: Pham “arrested,” while still being held by British authorities in immigration custody. Indictment publicly released by DOJ.

August 23, 2012: Pham’s indictment officially unsealed.

Compare that to these dates regarding the UK’s efforts to strip B2’s citizenship.

February 9, 1983: B2 born in Vietnam.

August 1989: B2 travels with parents to UK, where they are granted asylum.

1995: B2 and his family get British citizenship.

December 2010: B2 travels to Yemen.

July 25, 2011: B2 leaves Yemen.

December 20, 2011: British Secretary of State decides to strip B2 of his citizenship.

December 22, 2011: British SoS provides notice and strips B2 of citizenship.

January 13, 2012: B2 appeals decision based on claim he would be stateless if he lost British citizenship.

June 13-14, 2012: B2’s citizenship hearing.

June 29, 2012: B2’s appeal succeeds.

Much of this lines up perfectly: The December 2010 departure for Yemen, the July 2011 end to military training, and the December 2011 immigration detention.

More important still, note that the British court released its decision about B2 on the same day — June 29, 2012 — that DOJ hastily announced Pham’s arrest, though without formally unsealing his indictment (note, DOJ’s original press release, though not FBI’s version, got disappeared, though can still be accessed via Internet Archive; see also this screen cap showing the press release missing).

The only discrepancy — and it may not be one — is B2’s claim he left Yemen on July 25, 2011. While DOJ’s military training charges end in July 2011, its material support charges continue until December 2011. Though note this Telegraph article says Pham was arrested when he arrived in Heathrow on July 27, 2011.

In short, unless there are a whole lot more Vietnamese refugees to Britain wandering back and forth from Yemen on the very same days, B2 is Pham.

Not only that, but it’s clear his “arrest” appears to be nothing more than an attempt to establish a fall-back position if and when holding him in immigration detention becomes impossible because he gets his citizenship restored. Barring that, they may well leave Pham in immigration custody in the UK indefinitely.

The most curious aspect of all this, though, is that material support charge that continues while, at least according to the Telegraph, Pham was in custody. Maybe the Telegraph is wrong, but if not, it means — according to the US — Pham continued to materially support AQAP while in British custody.

Insider Attack Kills Seventeen at Afghan Local Police Post Staffed Under New Screening Program

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Detail from CIA map of Afghanistan.

Detail from CIA map of Afghanistan. Click on map for a larger view.

The Afghan Local Police program was a centerpiece of David Petraeus’ counterinsurgency (COIN) program in Afghanistan when he took over command after Stanley McChyrstal was fired. The program came under extreme scrutiny this week when Afghan President Hamid Karzai called for the expulsion of US Special Operations forces from the province of Maidan Wardak after repeated reports of atrocities carried out by forces claiming to be allied with ALP forces trained by SOF. Today, there is further bad news for the ALP program, as seventeen people have been killed at an ALP post in what appears to be an insider attack. Since the attack occurred early this morning, it should be kept in mind that information is still coming in regarding the details of what took place. Today’s attack was in Ghazni province, which is adjacent to Wardak, as seen in the map here.

Back in September, training of ALP was the first program suspended due to insider attacks. The (delayed by the elections from October) December 2012 “Report on Progress Toward Security and Stability in Afghanistan” (pdf) informed us that the re-screening of ALP was already moving quickly by then:

To mitigate the risk of insider threats, SOJTF-A has taken active measures to re-validate all 16,474 ALP personnel. This revalidation process is currently 52 percent complete, with less than one percent removed due to nefarious activities or counter-intelligence concerns. This process, which is currently ongoing, is very similar in design to our initial screening/validation methodology. It begins at the local level by conducting shuras and intimately involving local elders, who must vouch for each ALP member, ensuring he remains in good standing. Each member’s application paperwork is re-reviewed by various personnel from the Coalition, MoI, NDS, and the DCOPs. If any ALP member “flags” as suspicious, additional counter-intelligence (both Afghan and Coalition) measures are taken. If it is determined that an ALP member is unfit, he is removed from the program. These processes are non-negotiable. In addition, NDS plans to embed three agents per 100 ALP to identify possible infiltration by the enemy. The prevention/elimination of Insider Threats will remain COMISAF’s top force protection priorities.

So Special Operations Joint Task Force-Afghanistan claimed in December that they had already revalidated just over half the ALP force and that less than one percent of the force had been removed due to potential nefarious connections. And yet, almost two months later, we now have a major attack on ALP that has the hallmarks of an insider attack. From the New York Times:

A group of 17 Afghan policemen were drugged by their comrades while on duty and then shot to death in their sleep in what appears to be the single worst incident in a string of similar attacks, according to Afghan officials.

The attack took place at a remote Afghan Local Police post in Ghazni Province, south of the capital, early Wednesday morning, according to General Zrawar Zahid, the Ghazni police chief.

Other Afghan officials said authorities had already arrested two policemen who they said were Taliban infiltrators who had carried out the attack.

The AP report carried by the Washington Post suggests that not all the dead were ALP:

The dead included 10 members of the government-backed Afghan local police, and seven of their civilian friends, said Provincial Gov. Musa Khan Akbarzada. He says there was a conspiracy of some sort but declined to confirm if poison was involved.

The previously mentioned December report from DoD has a remarkable level of detail on the status of the ALP, with a snapshot as of September 26, 2012: Read more →

JSOC or CIA? Secrecy Inherent in US GWOT Impedes Wardak Investigation

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Description of the military's deception-execution cycle from a 2006 Joint Chiefs publication.

Description of the military’s deception-execution cycle from a 2006 Joint Chiefs publication.

In his article that the New York Times today cowardly labelled as “news analysis” rather than straight reporting, Matthew Rosenberg makes a number of astute observations regarding Afghan accusations that groups affiliated with US Special Operations forces have been responsible for a number of atrocities in Maidan Wardak province, prompting Hamid Karzai’s call to expel them. Perhaps the most important observation comes almost as an aside, when he links to this story on Special Operations troops covering up their murder of innocent women during a night raid, going so far as to dig bullets out of their corpses in order to impede the subsequent investigation. Here is the reference in its wider context of overall Afghan concerns about Special Operations forces and their reliance on loosely affiliated groups:

The ban also reflected the Karzai administration’s limited patience for the use of Special Operations forces, whose aggressive tactics previously resulted in abuses, and attempted cover-ups. But Afghan officials cited as even more troubling American Special Operations units’ use of Afghan proxy forces that are not under the government’s control. Afghan civilians and local officials have complained that some irregular forces have looked little different from Taliban fighters or bandits and behaved little differently.

I’ll return to Rosenberg’s reporting in a bit, but we also have to keep in mind a point that virtually all of the reporting on this incident has covered, and that is the secrecy surrounding Special Operations forces. See, for example, this passage in today’s Washington Post article:

Because Special Operations troops carry out classified missions, it is difficult to independently confirm their activities or links to local groups.

“The U.S. has had a long history in Afghanistan of working with some of these irregular militias that are not accountable to anyone,” said Sahr Muhammedally, legal adviser for the Center for Civilians in Conflict, who has studied such groups.

“A lot of villagers talk about these campaign forces,” she said. “It is not the first time I have heard the name…. But the U.S. Special Operations forces don’t confirm or deny anything.”

Gosh, just as Marcy pointed out yesterday that the media is shocked that Robert Gibbs was told he couldn’t confirm or deny the existence of the drone program, now we have Special Operations not being able to confirm or deny their association with shadowy groups that are responsible for crimes. And yet, even though the media notes the secrecy surrounding the operations, they are unable to point to that secrecy directly within the context of NATO claiming it can find no evidence supporting the Afghan accusations. For example, here is the same Washington Post article again:

But NATO said its past inquiries found no evidence to support allegations of misconduct by U.S. Special Operations forces in Wardak province, southwest of Kabul.

That was the second paragraph in the article and yet, when they get to the passage on secrecy six paragraphs later, they merely point out that the classified nature of the work makes independent confirmation difficult and completely overlook the role that a Glomar-type response would play in making it impossible for NATO to find evidence because that evidence is classified and cannot be provided to NATO from JSOC.

Note added in clarification: Marcy points out to me via email that it would be more accurate to state here that CIA and/or JSOC would deny the existence of these operations because they are covert, not because they are classified.

Another vitally important point where Rosenberg stands apart from all the other reporting on this issue is his mention that we might be dealing here with a militia supported by the CIA rather than JSOC: Read more →

What a Targeted Killing in the US Would Look Like

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Warning: Several minutes into this video, graphic images of a corpse appear. Also, the government may start tracking your online viewing if you view this YouTube, as someone started following my mostly defunct YouTube account after I watched it.

On October 28, 2009, the FBI set out to arrest a man they claimed, in the complaint justifying the arrest, was “a highly placed leader of a … radical fundamentalist Sunni group [the primary purpose of which] is to establish a separate, sovereign Islamic state.” The leader of the group “calls his followers to an offensive jihad.” The complaint states the group trained in the use of firearms and martial arts and explains that “Abdullah is advocating and encouraging his followers to commit violent acts against the United States.”

The arrest was staged at a warehouse controlled by the FBI, outfitted with 5 closed circuit video cameras that gave the FBI full visibility into anyone entering and leaving the warehouse, as well as pallets loaded with sandbags to provide cover. Altogether 66 FBI Agents participated in the arrest, with 29 Agents, including a K-9 team and snipers, inside the warehouse itself, along with helicopter cover, another K-9 team, and a control room nearby. Members of the FBI’s Hostage Rescue and SWAT teams participated, with Agents flying in from Columbia, South Carolina and DC via a previous operation in Los Angeles. The team had practiced the arrest scenario up to 10 times before the actual arrest.

The arrest started when the FBI detonated 3 pre-positioned diversionary explosives in the room in which the leader, 4 accomplices, two undercover officers and an informant had been moving boxes (the FBI insiders had already left the scene). That allowed the FBI team, wearing bullet proof gear and helmets, to move into place.

On orders, “FBI, show me your hands, on the ground!” the leader’s four accomplices put their hands up and got down on the ground (for a variety of reasons, the FBI doesn’t have recordings of the audio of the event). The leader hesitated, but then got face down on the ground, though the FBI claims his hands were not visible.

At that point, 62 seconds after the diversionary explosions, the K-9 handler, who had been briefed that the leader was the main target of the investigation, released the dog and gave the “bite” command, the first time he had ever done so in the year he had been a K-9 handler; the dog lunged at the leader’s arm or face. The FBI claims the leader raised a gun and shot the dog three times. One accomplice disagrees, describing that the leader had both hands on the dog, trying to keep him away from his face. Two FBI Agents who admitted shooting their rifles also had Glocks, though of a different caliber than the one allegedly used by the leader. There was no gunpowder residue found on the leader and no fingerprints found on the Glock.

In the next 4 seconds, 4 different FBI officers shot the leader with their Colt M4 rifles (3 were from the Hostage Rescue Team that had flown in for this arrest), set on semiautomatic. He was hit a total of 21 times. He died within a minute.

This was the culmination of a 3-year counterterrorism investigation into Imam Luqman Abdullah, a black Muslim who led a mosque in Detroit. The investigation intensified in 2007 as Abdullah and his associates reacted against the transfer of H. Rap Brown (now Jamil Abdullah al-Amin), who had been convicted of killing two police officers in Georgia in 2002, to Florence SuperMax Prison.

Read more →

Pakistan Signs Gwadar Port Over to China Despite Rohrabacher’s Meddling

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Detail of CIA Pakistan transportation map showing region around Gwadar. Click on map for a larger image.

Detail of CIA Pakistan transportation map showing region around Gwadar. Click on map for a larger image.

Even though he was unsure of its pronunciation, Representative Dana Rohrabacher mounted what was initially a one-man campaign that he claimed was for a free and independent Balochistan. He did eventually enlist top-notch intellectual luminaries Louie Gohmert and Steve King in his effort, but the lingering question I had regarding his efforts on this front boiled down to:

Does Rohrabacher want to help the Baloch, or does he merely want US control of the port of Gwadar and an end to the planned gas pipeline from Iran to Pakistan through Balochistan?

We now have the opportunity to answer that question, as Rohrabacher’s attempts to arrange US control of Gwadar and to prevent the gas pipeline have failed. Pakistan officially transferred control of the port of Gwadar to China today from the Port of Singapore Authority. The final agreement relating to construction of the gas pipeline through Pakistan (Iran claims to have completed 900 kilometers of the pipeline within its borders already) was expected to be signed last Friday, but it appears a last-minute disagreement of gas pricing has delayed those signatures for a week. Here is Dawn on the transfer of Gwadar:

China took control of Pakistan’s Gwadar port on Monday as part of its drive to secure energy and maritime routes that also gives it a potential Arabian Sea naval base, sparking Indian concern. “The contract of operation of Gwadar port is formally given to China. Today, the agreement is transferred from the Port of Singapore Authority to China Overseas Ports Holding Company Limited,” President Asif Ali Zardari announced. “The award of this contract opens new opportunities for our people… It gives new impetus to Pakistan-China relations,” added Zardari in a speech broadcast live on television.

As the article notes, China had funded the bulk of the construction of the port, so it should come as no surprise that they would eventually gain control:

China paid about 75 per cent of the initial $250 million used to build the port but in 2007 PSA International won a 40-year operating lease. Then-ruler Pervez Musharraf was reportedly unwilling to upset Washington by giving control of the port to the Chinese.

I have to wonder whether Rohrabacher’s outright hostility shown to Pakistan over the Balochistan freedom movement and the issue of Dr. Shakeel Afridi played into their willingness to go against US wishes in signing Gwadar over to the Chinese. Perhaps Representative Rohrabacher can enlist a new ally in his battles with Pakistan since he is such an adherent to “the enemy of my enemy is my friend” approach. It appears that Iran is finding it necessary to build their own naval base very close to Gwadar so that they can keep an eye on what transpires there:

Iran’s Navy Commander Rear Admiral Habibollah Sayyari says the country is establishing a new base in the Sea of Oman near Pakistan’s border to boost the Islamic Republic’s defense capabilities. “The naval base, which is under construction, is situated in the Gwatr Gulf on our country’s farthest eastern shores bordering Pakistan,” Sayyari said on Sunday.

“The Iranian navy has so far had no military presence in the area, but now, we will be present in the region to defend the interests and maritime resources of our country and exercise a tighter control over the traffic in the region,” Sayyari noted.

Just as he took up arms to fight alongside Osama bin Laden’s Mujahideen movement against his arch-enemies from the Soviet Union, maybe Rohrabacher will decide to team up with Iran’s navy near Gwadar in an attempt to punish Pakistan for daring to thwart his wishes.

Did CIA OCA Censor Another Court Transmission?

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Back on January 28, the proceedings of the military commission attempting to try Khalid Sheik Mohammed and co-conspirators were interrupted when an unknown entity outside the courtroom muted the audio feed carried out of the courtroom. The presiding judge was enraged and has held hearings to get to the bottom of the event. As Carol Rosenberg reported on January 31:

“This is the last time that will happen,” the judge said Thursday. “No third party can unilaterally cut off the broadcast.”

/snip/

Pohl never once mentioned the CIA, the agency that controls information about what happened to alleged mastermind Mohammed, who agents waterboarded 183 times, and his four co-defendants. Instead, he referred to the “OCA” — short for the original classification authority — a generic term for any agency of the U.S. government that stamped a document or declared a program Top Secret.

“This is the last time that an OCA or any third party will be permitted to unilaterally decide if the broadcast should be suspended. The OCA, any OCA does not work for the commission and therefore has no independent decision-making authority on how these proceedings are to be conducted.”

Remarkably, the OCA censoring scandal has now spread to include the presence of hidden microphones the defense contends may have been used to eavesdrop on privileged attorney-client conversations, but I want to concentrate here on a remarkable coincidence where a second terrorism trial also was disrupted by a sudden, unexplained interruption in a transmission of the proceedings.

The current case centers on the nearly 80 year old, frail imam of South Florida’s oldest mosque, Hafiz Khan. He and a number of co-conspirators are accused of funneling money to the Pakistan Taliban:

One of Mr. Khan’s sons, Izhar Khan, 24, the imam of a mosque in Margate, Fla., sat near his father in the jury box. Both men appeared in court for the first time since their federal indictment was unsealed late last week. Neither man entered a plea.The indictment says the defendants conspired to provide material support to a conspiracy to murder, maim and kidnap people overseas, including planning to funnel at least $50,000 to the Pakistani Taliban.

The Pakistani Taliban, which the State Department has named a terrorist organization, took responsibility for a suicide attack in Pakistan on Friday that killed more than 80 cadets from a government paramilitary force.

Significant portions of the government’s case rest on recordings of intercepted phone calls:

According to the indictment, a tape-recorded phone conversation has Mr. Khan calling for an attack on the Pakistani Assembly similar to a suicide bombing of the Marriott Hotel in Islamabad, Pakistan, on Sept. 20, 2008.

Prosecutors say that in another phone conversation, Mr. Khan “declared his wish that God kill 50,000” American soldiers.

Khan’s defense team wanted testimony from a number of people in Pakistan, but they will not come to the US to testify in the Miami trail.  Several motions were submitted by the defense and the government on just how testimony could be obtained from these witnesses. The defense wanted to depose the witnesses in Pakistan via videoconferencing, but the government fought that request. The government embarrassed itself a few times in these filings, especially when it argued that the defense had not indicated what language would be used for the depositions and so the government might not have the proper translators present. Further, the government tried to argue that the defense had not adequately shown why the witnesses did not want to come to the US.

In ruling on these many motions (pdf), the judge cut through the government’s arguments very cleanly, noting that the government had recorded these very witnesses and cited them in its indictment, so the language they speak is known to the government. Further, the witnesses are co-conspirators in the indictment and so they fear arrest if they come to the US: Read more →

Has the Government Left Minh Quang Pham “Languishing Forever”?

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Screen shot 2013-02-13 at 3.55.43 PMJohn Brennan made two interesting comments about FBI interrogation at his hearing last week. First, in response to a Martin Heinrich question, he suggested that the Army Field Manual shouldn’t be the interrogation standard for the entire government because the FBI “has its own processes and procedures.”

HEINRICH: Thank you. Do you believe that all agencies of the United States government should be held to the interrogation standards that are laid out in the Army Field Manual as it — as currently required by Executive Order 13491? And do you support efforts to codify those requirements into law?

BRENNAN: The Army Field Manual certainly should govern the U.S. military’s detention and interrogation of individuals.

The FBI has its own processes and procedures and laws that govern its activities. So what I wanted to do is to make sure that, you know, appropriate sort of attention is paid to FBI as opposed to the military.

Then, when Brennan was very patiently explaining to Marco Rubio that his ideas about detention and interrogation are erroneous and stupid (my words), he said this about FBI interrogations.

BRENNAN: No. Again, it’s tailored to the circumstances. Sometimes an individual will be Mirandized. Sometimes they will not be Mirandized right away. Mirandizing an individual means only that the information that they give before then cannot be used in Article III court.

But, in fact, the FBI do a great job as far as eliciting information after they’re Mirandizing them, and so they can get information as part of that type of negotiation with them, let them know they can in fact languish forever, or we can in fact have a dialogue about it intelligently.

“They can languish forever”? I didn’t think the Sixth Amendment had a “languish forever” exception.

But Brennan’s apparent belief there is one got me thinking about Minh Quang Pham, whom I wrote about here.

Pham is a Vietnamese immigrant to the UK who traveled to Yemen in December 2010 and went on to help Samir Khan produce Inspire magazine. He was arrested to great fanfare last June, when his May 24 indictment was purportedly unsealed. Though his docket shows no sign of that unsealing; rather, it says the indictment was unsealed two months later. He returned to the UK in December 2011, where he was held in immigration detention. It’s unclear whether he’s still there — the Brits can hold someone in detention indefinitely and extradition to the US has been taking a lot of time of late — or whether he was moved here either in June when DOJ had a big dog and pony show over his arrest or in August when the docket says his previously unsealed indictment was unsealed. That’s the last thing that appears in Pham’s docket. I’ve asked SDNY for a status report but have not yet gotten an answer.

In any case, one of the last people with ties to the UK or US to spend time with Anwar al-Awlaki and, especially, Samir Khan is languishing … somewhere.