Could the UndieBomber Have Destroyed the Plane?

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There are two new minor details in the UndieBomber, Umar Farouk Abdulmutallab’s, case. He was scheduled for a pre-trial hearing tomorrow, but his lawyer, Anthony Chambers, just submitted a waiver of Abdulmutallab’s presence at the hearing, and the judge rescheduled the hearing for two weeks later. This is significant only insofar as it’ll prevent him from firing Chambers, as he fired his public defenders in September.

In another filing submitted yesterday, Chambers asks for the file the public defender kept during the time they represented Abdulmutallab. Here’s the interesting bit about that request:

That counsel herein further believes that the file contains expert information which disputes the governments allegations and furthermore, that the alleged attempt to “destroy an aircraft” was impossible!

Now, I’ve seen reports to that effect on the Toobz. For example, a terrorism and explosives expert did a rough reenactment of the UndieBombing attempt, and found it would not have destroyed the plane.

Dr John Wyatt, an international terrorism and explosives adviser to the UN, replicated the conditions on board the Detroit flight on a decommissioned Boeing 747 at an aircraft graveyard in Gloucestershire, England .

Wyatt used the same amount of the explosive pentaerythritol that the bomber carried, about 80 grams, which packs about the punch of a hand grenade. They put it on the same seat and lit off a controlled explosion, which sent a shock wave through the aluminum exterior.

The metal was permanently bowed out, and a handful of rivets were punched out, but no gaping holes appeared. The pressurized air inside the cabin would have slowly leaked out .

Wyatt and his cohorts say that wouldn’t have been life-threatening, and it wouldn’t have brought down the plane. However, the blast would probably have killed the bomber and the person next to him

But this suggests some expert actually told the Public Defender’s office that the UndieBomber was never able to destroy the plane he was on.

The entire flying public is now subject to gate grope because of Abdulmutallab. Is it possible that, all this time, he was never a competent threat to the plane he was on?

Then again, given that the FBI now seems to be routinely entrapping people into trying to set off inert bombs the FBI made, I’m not sure it’ll make a difference in court.

State Department Secrecy: What a Bunch of Crap!

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Since the issue of State Department secrecy — breached by the WikiLeaks cable dump — has been a topic of discussion, I thought it worthwhile to point to this National Security Archive post describing a particular FOIA appeal.

Eleven years ago, in those halcyon pre-9/11 days, Frank Pallone sponsored a resolution declaring Pakistan a state sponsor of terror reading, in part,

Expressing the sense of the House of Representatives that Pakistan should be designated as a state sponsor of terrorism.

Whereas reliable reports from Western media sources have cited Pakistan as a base and training ground for terrorist groups, and the Pakistani Government’s demonstrated reluctance to halt the use of its soil for terrorist organizations;

Whereas media reports have implicated Pakistan’s Inter Services Intelligence (ISI) directly in terrorist activities, as well as the international drug trade;

[snip]

Whereas Pakistan is one of three countries to recognize the Taliban in Afghanistan;

Whereas the Taliban, which has been declared a foreign terrorist organization by the U.S. Department of State, has provided refuge and assistance to Osama Bin Laden;

Whereas the U.S. Department of State has declared Osama Bin Laden and associates as a foreign terrorist organization;

Whereas Pakistan has hindered U.S. and international efforts to apprehend Osama Bin Laden;

Whereas Pakistan was placed on the U.S. Department of State’s `watch list’ of suspected state sponsors of international terrorism in 1993;

When NSA first got the document in response to a FOIA, there was a square marking on the upper right corner redacted under the deliberative exception. The NSA appealed and won and — voila! It turns out some State Department flunky who reviewed the proposed legislation 11 years ago had declared, “What a bunch of crap!”

I can see why our government wouldn’t want us to know that, when presented with a resolution condemning Pakistan for actions that made it easier for Osama bin Laden and a bunch of other terrorists we have since gone to war against to operate, some bureaucrat responded by declaring “what a bunch of crap!” How terrible it would be after all, if the citizens paying that bureaucrat’s salary got to see what bad judgment he or she had!

But can the State Department understand how, faced with an effort to hide the State Department’s own bad judgment, we citizens might not trust its judgment on secrecy, much less policy?

“Our” Terrorist Goes on Trial

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Today, Luis Posada Carrilles goes on trial. Posada is, of course, the Cuban-American who was a CIA asset for at least the Bay of Pigs era and almost certainly for years after. Among other things, he orchestrated the bombing of a Cuban plane in 1976, and more recently involved in the bombing of Cuban tourist sites in 1997.

He’s not being tried for terrorism. Instead, he’s being tried for lying about his terrorism.

Nevertheless, as Peter Kornbluh notes, it’ll be the first time evidence of his terrorism gets introduced into trial in this country.

In the annals of modern justice, the Posada trial stands out as one of the most bizarre and disreputable of legal proceedings. The man identified by US intelligence reports as a mastermind of the midair destruction of a Cuban airliner—all seventy-three people on board were killed when the plane plunged into the sea off the coast of Barbados on October 6, 1976—and who publicly bragged about being behind a series of hotel bombings in Havana that killed an Italian businessman, Fabio Di Celmo, is being prosecuted for perjury and fraud, not murder and mayhem. The handling of his case during the Bush years became an international embarrassment and reflected poorly on the willingness and/or abilities of the Justice Department to prosecute crimes of terror when that terrorist was once an agent and ally of America. For the Obama administration, the verdict will carry significant implications for US credibility in the fight against terrorism, as well as for the future of US-Cuban relations.

[snip]

To its credit, the Justice Department did quietly empanel a grand jury in New Jersey to weigh an official indictment of Posada for masterminding the hotel bombings in Havana. (Evidence gathered by the FBI indicates that Posada raised funds for that operation from Cuban-American benefactors in Union City, New Jersey.) In April 2006 government lawyers decided to hold a naturalization interview with Posada while he was in jail, surreptitiously gathering self-incriminating evidence against him in the hotel bombing case.

But, for reasons that remain under seal, the New Jersey grand jury proceedings stalled. Initially, as a senior State Department official confided, prosecutors were unable to secure a key piece of evidence—the tape recordings of an interview Posada had given to then–New York Times stringer Ann Louise Bardach in 1998, in which he appeared to take full responsibility for the hotel bombings. “The Italian was in the wrong place at the wrong time, but I sleep like a baby,” Posada proclaimed, according to his statements published in the Times. Under subpoena, Bardach turned over the tapes to the grand jury on December 15, 2006. But no indictment was ever handed down.

Instead, on January 11, 2007, Posada was indicted in El Paso on six counts of making “false statements” and one of fraud about how he came to the United States and for his use of false names and false passports—charges that carry an maximum sentence of five to ten years each. To make matters worse for the credibility of the US legal system, four months later Judge Kathleen Cardone dismissed all charges against Posada. The government, she ruled, had engaged in “fraud, deceit and trickery” in obtaining evidence against Posada under the guise of conducting a naturalization review. The court, she declared, could “not set aside [Posada’s legal] rights nor overlook Government misconduct [just] because Defendant is a political hot potato.”

A free man, Posada took up residence in Miami. Since he is on the government’s no-fly list, Posada was forced to drive back to Florida, where he has lived openly for the past several years, attending right-wing exile fundraisers and even participating in public protests against Castro’s Cuba.

But in August 2008 the US Court of Appeals for the Fifth Circuit overruled Cardone’s decision and ordered Posada to proceed to trial. In another positive turn of events in this long, twisted legal saga, in April 2009 the new Obama Justice Department used the New York Times tapes of Posada’s interview with Bardach to file several additional counts of perjury and fraud relating specifically to lying about “soliciting other individuals to carry out…[the hotel] bombings in Cuba.” To be sure, Posada is still not being charged with actually perpetrating those terrorist operations, only with lying about aspects of his involvement in orchestrating them. But for the first time in a US court, a team of lawyers from the Justice Department’s Counterterrorism Division will present concrete evidence to prove that Posada was indeed behind a series of terrorist attacks on Cuban soil.

Now, it always pays to be skeptical about the possibility the United States will hold its old terrorist, Posada, accountable for later acts of terrorism that we may not have officially sanctioned. While most of the efforts to avoid trying him have come under Bush (whose father reportedly was tied to the Bay of Pigs invasion, was director of the CIA at the time of the 1976 Posada bombing, was directly implicated in Iran-Contra, and was President during the 1997 bombings in question [pre-coffee f-up]), it’s not clear the Obama Administration is any more willing to hold “our” terrorists–or those of our allies–accountable.

Also (as Kornbluh further explains in his article), the government was unable to exclude evidence of Posada’s ties to the CIA from trial. Particularly given that DOJ just indicted a former CIA officer who alleges he was ordered to lie in his memoirs, it will be fairly easy for Posada to say he lied about his involvement in terrorism as he was required to to protect the CIA.

And while we’re used to American hypocrisy on this front, the trial will be closely watched in Latin America. Even while we’re claiming that Posada illegally entered the US, we are refusing to extradite Posada to Venezuela. And the Wikileaks cables reveals our further inconsistency on the treatment of terrorism. While we like to pressure countries like Brazil without great evidence, we treat the claims of Bolivia’s government very skeptically. Yet here, the evidence is clear that Posada is a terrorist.

But chances are high that Posada, like Scooter Libby, will never see jail time for his alleged perjury.

But it will be worth watching to see whether the US is willing and able to put one of the Western Hemisphere’s most celebrated terrorists in prison.

IRA Attack Survivor on Peter “Material Support for Terror” King’s Hypocrisy

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Tom Parker, Amnesty International’s Policy Director for Terrorism, Counterterrorism and Human Rights and himself a survivor of an IRA bomb attack, has this to say about Peter King’s hypocrisy about terrorism. (h/t Susie)

That problem is simple: if your test for whether or not terrorist violence is acceptable is whether or not you agree with the cause that it furthers, you will never have the moral authority to condemn such acts when they are carried out by others. The use of violence against innocents must be wrong in whatever form it takes. Take any other position and you are open, as Congressman King undoubtedly is, to charges of hypocrisy.

There is no way to varnish the fact that for twenty years Congressman King consistently supported a violent armed group that murdered men, women and children in pursuit of its political goals. It is also worth noting that those victims were citizens of America’s closest ally in the struggle against Al Qaeda.

These are not frivolous times and rabble-rousers do not make good statesman.

Parker is right about King. But King is just the most obvious example of a general slide in this country toward having just that test, measuring terror based on whether or not we agree with the cause.

Peter the Material Support for Terror King’s Slippery Slope

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I highlighted the NYT editorial that criticized Peter King’s planned hearing to fearmonger against Muslims the other day. In spite of the fact that the NYT backed off of highlighting King’s own ties to terrorism, instead focusing on how he ultimately helped to serve peace, King nevertheless responded in predictable fashion:

In an interview with The Hill, New York Republican Rep. Peter King didn’t mince words about his feelings towards The New York Times.

“I have nothing but contempt for them,” King said. “They should be indicted under the Espionage Act. … The New York Times is just basically being a mouthpiece for political correctness.”

When an increasingly powerful Congressman can respond to tempered criticism by screaming espionage, we’ve reached a very dangerous slippery slope.

More New York Republicans Providing Material Support to Terrorists

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Speaking of material support for terrorism, David Cole uses the recent trip by Rudy Giuliani and others to suck up to the Mujaheddin-e Khalq (MEK) as an opportunity to explain the idiocy of the Holder versus Humanitarian Law Project SCOTUS verdict.

DID former Attorney General Michael Mukasey, former New York Mayor Rudolph Giuliani, Tom Ridge, a former homeland security secretary, and Frances Townsend, a former national security adviser, all commit a federal crime last month in Paris when they spoke in support of the Mujahedeen Khalq at a conference organized by the Iranian opposition group’s advocates? Free speech, right? Not necessarily.

The problem is that the United States government has labeled the Mujahedeen Khalq a “foreign terrorist organization,” making it a crime to provide it, directly or indirectly, with any material support. And, according to the Justice Department under Mr. Mukasey himself, as well as under the current attorney general, Eric Holder, material support includes not only cash and other tangible aid, but also speech coordinated with a “foreign terrorist organization” for its benefit. It is therefore a felony, the government has argued, to file an amicus brief on behalf of a “terrorist” group, to engage in public advocacy to challenge a group’s “terrorist” designation or even to encourage peaceful avenues for redress of grievances.

[snip]

But in June, the Supreme Court ruled against us, stating that all such speech could be prohibited, because it might indirectly support the group’s terrorist activity. Chief Justice John Roberts reasoned that a terrorist group might use human rights advocacy training to file harassing claims, that it might use peacemaking assistance as a cover while re-arming itself, and that such speech could contribute to the group’s “legitimacy,” and thus increase its ability to obtain support elsewhere that could be turned to terrorist ends.

Cole goes on to note the hypocrisy of the government, which has given exceptions for humanitarian purposes to corporations seeking to sell cigarettes, even while arguing NGOs cannot provide food and water.

Mind you, I’m actually with Cole: Rudy and Mukasey and Fran Fragos Townsend and Tom Ridge ought to be able to go make speeches sucking up to Iran’s version of Ahmad Chalabi (oops! I forgot that Chalabi was Iran’s!), a bunch of liars who have invented intelligence to try to justify war with Iran. That’s what Republicans do, after all: promote hucksters who can justify the next war.

But it’s really time for either some consistency in the way the government pursues its war on terror violent extremism, or an admission that the war on terror has disintegrated into a war on those who oppose US empire. The government is still investigating a bunch of peace activists for material support. And yet four prominent Republicans can offer the same kind of material support as the peace activists–but this time in service of war or US hegemony or oil–with no similar consequences?

Peter “Material Support for Terrorism” King

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The NYT has an editorial rightly condemning ascending Chair of the House Homeland Security Committee Peter King’s upcoming hearing to attack Muslims.

It is disturbing to listen to Representative Peter King, the incoming chairman of the Homeland Security Committee. He has announced plans to hold a hearing next month into what he calls the “radicalization of the American Muslim community.” Mr. King, a New York Republican, is no stranger to bluster, but his sweeping slur on Muslim citizens is unacceptable.

But the interesting bit of the editorial is the last paragraph.

He had better recall his role as a gifted intermediary in helping to settle Ireland’s sectarian troubles. He would have bristled at any simplistic talk about the “radicalization” of the Irish Catholic or Protestant communities. Chairman of the Committee on Homeland Security is a very serious job. Mr. King needs to get serious.

While the NYT points to what I believe to be the appropriate response to King’s fear-mongering, it misses the mark by about a decade or so. They point to King’s involvement in brokering peace in Northern Ireland. But of course the relevant bit is how King, for years, openly supported Irish terrorists.

He forged links with leaders of the IRA and Sinn Fein in Ireland, and in America he hooked up with Irish Northern Aid, known as Noraid, a New York based group that the American, British, and Irish governments often accused of funneling guns and money to the IRA. At a time when the IRA’s murder of Lord Mountbatten and its fierce bombing campaign in Britain and Ireland persuaded most American politicians to shun IRA-support groups, Mr. King displayed no such inhibitions. He spoke regularly at Noraid protests and became close to the group’s publicity director, the Bronx lawyer Martin Galvin, a figure reviled by the British.

Mr. King’s support for the IRA was unequivocal. In 1982, for instance, he told a pro-IRA rally in Nassau County: “We must pledge ourselves to support those brave men and women who this very moment are carrying forth the struggle against British imperialism in the streets of Belfast and Derry.”

By the mid-1980s, the authorities on both sides of the Atlantic were openly hostile to Mr. King. On one occasion, a judge threw him out of a Belfast courtroom during the murder trial of IRA men because, in the judge’s view, “he was an obvious collaborator with the IRA.” When he attended other trials, the police singled him out for thorough body searches.

Even the CIA acknowledges (though it bizarrely considers this secret) that NORAID existed to channel material support to terrorists.

In the twentieth century, Irish-Americans provided most of the financial support sent to the Irish Republican Army (IRA). The US-based Irish Northern Aid Committee (NORAID), founded in the late 1960s, provided the Provisional Irish Republican Army (PIRA) with money that was frequently used for arms purchases. Only after repeated high-level British requests and then London’s support for our bombing of Libya in the 1980s did the US Government crack down on Irish-American support for the IRA. (S//NF)

Peter King would still be in prison if the US had treated his material support for terrorism as it now does, with sentences that can amount to a life sentence. Instead, the raging hypocrite is using the Congressional seat he owes, in part, to his earlier embrace of terrorism to sow bigotry and hatred–and to make the cooperation of the Islamic community, which plays a key role in identifying real extremists, more difficult.

The correct response to King’s actions is undoubtedly to point to this rank hypocrisy. Perhaps the NYT is suggesting it will do just that if King doesn’t back off his fear-mongering. But I believe it is already far too late for polite society to continue to soft-pedal this issue. It is inappropriate for a former terrorist sympathizer to head the Homeland Security Committee. And particularly when King uses that position to pull stunts like this, polite society needs to call out his hypocrisy in clear terms.

Did Brennan and Napolitano Have Advance Warning of the UK Arrests?

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Now that I’ve fetched Mr. EW from his 48 hour trip to Philadelphia from Dublin, my entire family will be in one place for the next day or so, so don’t expect much posting from me in that period.

But I did want to point to this detail about the alleged terrorists arrested the other day in the UK: they were allegedly plotting to hit the US Embassy.

The U.S. embassy in London was a target of a group of men arrested last week in Britain and charged with conspiracy to cause explosions and preparing acts of terrorism, the U.S. State Department said on Monday.Twelve men were arrested on December 20 in what British police said were counter-terrorism raids essential to protect the public from the threat of attack.

Which brings me back to my point of the other day: the possibility that Director of National Intelligence James Clapper did not know of the investigation and arrests before they happened. One possibility I suggested, for example, is that the British didn’t share details of the investigation with us because they had been burned (by Dick Cheney and Jose Rodriguez) in the past.

Only, this detail sort of extends my point. While it’s clear John Brennan and Janet Napolitano knew of the by then widely-reported arrests by the time Diane Sawyer asked James Clapper about them, had they known the US Embassy was a target (and that the news would be published in the next few days), they probably wouldn’t have claimed there was no tie between those terrorism arrests and threats to the US. Indeed, there’s some indication the entire government had no clue about that fact, given that ODNI’s statement about Clapper suggested that Clapper wasn’t immediately briefed because it didn’t appear there was a “homeland nexus.” Now maybe “homeland nexus” is a weasel way of saying we no longer consider our embassies overseas–not even the one in our closest ally’s capital–to be a target (if so, someone should tell Ahmed Ghailani’s lawyers, and all the other terrorists convicted in the US of striking US embassies overseas).

But the more likely possibility, given what Brennan, Napolitano, and Clapper have said is that the US–the entire government–was left out of the loop on this investigation. That’s certainly Britain’s prerogative. You never know when some Dick Cheney figure is going to sabotage a British investigation on them, after all.

But it does seem to be a notable data point.

Obama/Bush DOJ Update to OLC Christmas Carol

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Earlier I linked to and posted the oh so hilarious (if you appreciate the humor in the supposed creme de la creme of government attorneys laughing about breaking the law and violating citizens’ rights) Christmas carol drafted by the DOJ’s Office of Legal Counsel (OLC) all the way back during the Carter Administration. It seems to be making a comeback through a post at Volokh Conspiracy.

Well, through what can only be described as a Christmas miracle, our very own Mary has “discovered” the new version, as updated by the Obama/Bush OLC:

You’d better watch out,
look up in the sky,
You’d better not doubt;
Better say your good bye.
Santa Claus is droning
Your home.

He’s paying out bounties,
For kids he pays five,
He’s razoring genitals
And burying alive.
Santa Claus is beating
the prone

He hears you in your cages,
Videotapes your screams and moans,
After sharing with Senate pages,
Then he’ll freeze you all alone

So–you mustn’t believe
In Justice tonight.
On Christmas Eve
She’s lost more than her sight
The OLC will help with hiding
Your bones.

As Mary noted, “Those jokers at OLC. At least they enjoy their work”. Indeed. With “wise men” like John Yoo, Jay Bybee and Steve Bradbury, what could go wrong?

Is James Clapper’s Ignorance a Bug? Or a Feature?

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Director of National Intelligence James Clapper has been getting beat up because he got embarrassed by Diane Sawyer when he admitted he had no clue about a 12-person counterterrorism arrest in the UK earlier the day of the interview.

In an interview with ABC’s Diane Sawyer, taped Monday afternoon, Clapper was asked about the arrests, which had happened hours before and were featured on all of the network morning news broadcasts. Secretary of Homeland Security Janet Napolitano and Chief Counterterrorism Advisor John Brennan, who were also participating in the joint interview, were aware of the arrests.

“First of all, London,” Sawyer began. “How serious is it? Any implication that it was coming here? … Director Clapper?”

“London?” Clapper said after a pause, before Brennan entered the conversation explaining the arrests.

Later in the interview, Sawyer returned to the subject.

“I was a little surprised you didn’t know about London,” Sawyer told Clapper.

“Oh, I’m sorry, I didn’t,” he replied.

As a threshold matter, it would be the intelligence community’s fault as a whole if Clapper should have been, but wasn’t, briefed about this arrest (the Administration has explained that Clapper was involved in START Treaty briefings all day Monday, and so didn’t get briefed), not Clapper alone. But I’m also wondering whether there’s more to his not getting briefed.

Note, first of all, that there are two kinds of briefings Clapper might have–but apparently didn’t–get: briefing about the investigation itself, and a briefing about the arrests, either before or after they happened.

Here’s some of what we know about the investigation and raid:

  • The investigation, which has been going on for months, has been described as “intelligence-driven”
  • Authorities triggered the raid after intercepted communications revealed the plotters were preparing to act
  • Britian’s Home Secretary was told of the raids during the week of December 12 through 18
  • Lord Alex Carlile, who acts as a watchdog on UK terrorism operations, also described watching one of the operations involved in the investigation
  • The group has ties to a known (and banned) British radical Muslim group
  • Like many of the recent arrests in the US, this group is alleged to have been influenced by Anwar al-Awlaki
  • Muslim leaders in Cardiff tipped authorities off to a group of radicalized youth though MI5 seemed to already bee aware of the group; the group held a meeting two weeks ago attended by up to 30 people

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