Some problems with the charges filed against Boston Marathon bombing suspect

Well, it seems that Tsarnaev has now been read his rights.

The FBI filed charges against the surviving suspect in the Boston Marathon bombing, Dzhokhar Tsarnaev, alleging “using and conspiring to use a weapon of mass destruction.” But Tim Noah has pointed out an interesting conundrum in his article on FP.com: How do relatively small improvised explosive devices (IEDs) amount to weapons of mass destruction?

18 USC § 2332a defines “weapon of mass destruction” as:

“(A) any destructive device as defined in section 921 of this title;

(B) any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors;

(C) any weapon involving a biological agent, toxin, or vector (as those terms are defined in section 178 of this title); or

(D) any weapon that is designed to release radiation or radioactivity at a level dangerous to human life.”

Since the pressure-cooker bombs made by the brothers did not (so far as we know) use  any toxins, poisons, biological agents, or radioactive elements, then the definition of WMD in operation in this case must be that of a “destructive device” which then allows in “any explosive bomb.” Firecrackers, too, apparently (Section 921 defines “Attorney General,” but not “bomb”).

But even setting aside the idiocy of language of the statute, it’s ridiculous to call the low-powered bombs  in Boston “weapons of mass destruction,” even if they did wound scores of innocent civilians. After all, as Tim Noah points out,

“If any old bomb can be called a WMD, then Saddam most definitely had WMDs before the United States invaded Iraq 10 years ago. And if an IED is a WMD, then Iraq actually ended up with more WMDs after the U.S. invasion than before (and isn’t entirely rid of them yet).”

For the sake of clarity, I do not advocate “going easy” on Tsarnaev. He should be prosecuted to the full extent of the law, which is what the federal government appears to be doing. But neither do I support equating the employment of ordinary bombs and IEDs with true weapons of mass destruction.

Paul W. Taylor, Senior Fellow
Center for Policy and Research

Fed’s handling of Tsarnaev draws criticism (and praise)

After capturing the second Boston Marathon bombing suspect on Friday, the FBI decided to invoke the public safety exception to the Miranda requirement. This decision has generated much debate about the rights that should be afforded to terrorism suspects, whether a distinction should be drawn between foreign and domestic terrorist suspects, and who qualifies as which.

According to the ACLU, while authorities should be able to question Tsarnaev about imminent threats, using the public safety exception “to create the case against the suspect” would be “wholly inappropriate and unconstitutional.”  In this they are absolutely correct. This exception was created not as an investigatory tool, but as an excuse for officers who, under pressing circumstances and in the heat of the moment, ask a question of a suspect, such as “where is the bomb?” or “which way did your accomplice run?” It was a failsafe to allow officers who ask questions with the sole purpose of ensuring public safety before read the suspect their rights to still be able to introduce the suspects responses in court. It was not intended to create a tactic by which police could intentionally delay mirandizing suspects.

Relatedly,  several Republican politicians have argued that Tsarnaev should be officially labelled an “enemy combatant” in order to remove procedural hurdles to national security investigations. For example, as an enemy combatant, Tsarnaev would not be entitled to the a lawyer during interrogation. These lawmakers hope that by removing the Miranda warning and its attendant rights, the authorities may be  better able to probe possible links to al Qaeda or other terrorist groups.

Of course, there is as yet no indication that there are any such links, and if there are, the 4th and 5th Amendments have generally not gotten in the way of finding out. For example, “Millennium Bomber”Ahmed Ressam gave up all of his contacts shortly after being caught and interrogated by the FBI under full Constitutional protection. In fact, facing 130 years in prison, he sang like a bird for 4 years while his sentencing was put on hold. (The uber-liberal Ninth Circuit has since ruled that Ressam’s 22-year sentence was too lenient, and placed an effective floor of 65 year on the sentence.)

But this has not stopped some Republican lawmakers from claiming the need to apply extraordinary measures to “foreign” terrorists. However, they seem to have hit a snag here, since Tsarnaev is a naturalized US citizen, not that they let this get in the way. In fact, Senator Lindsey Graham went so far as to advocate using racial and religious profiling to to determine if Constitutional protections should apply:

“You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that. But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda — I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable.”

So, according to Senator Graham. if they are Chechen and/or Muslim, screw their rights.

Discrimination aside, Sen. Graham seems to have forgotten that we don’t need to hold Tsarnaev for intelligence gathering purposes, since he’s already being held for criminal prosecution. This gives the FBI and other Federal investigators ample access to him for intelligence gathering purposes.

Indeed, holding Tsarnaev as an enemy combatant could jeopardize the government’s ability to try him, since Military Commissions have no jurisdiction over US citizens, and the latter trying him in civilian courts could trigger problems with speedy trial protections and admissibility of the evidence obtained without 4th and 5th Amendment protections.

For additional commentary on the Tsarnaev case, the following were collected by Fordham’s Center on National Security:

New York Times: “Mr. Graham’s reckless statement makes a mockery of the superb civilian police work that led to the suspect’s capture….Fortunately the Obama administration has ignored the posturing and declared that Mr. Tsarnaev, like all citizens and even alien terrorists captured on American soil, will be tried in the federal courts.”

Wall Street Journal: “The flap over reading [Tsarnaev] his Miranda rights is a largely irrelevant distraction. … The important security issue isn’t convicting Dzhokhar but finding out what he knows that might prevent a future attack or break up a terror network. This is where naming him an enemy combatant would be useful.”

New Yorker: Does the public exception to the Miranda “grant the police a limited ability to ask where a bomb is or which way an accomplice ran, and use the answers in court? Or is it a free forty-eight-hour questioning coupon the government gets for calling someone a terrorist?”

Paul W. Taylor, Senior Fellow
Center for Policy & Research

Condolences to the Victims of the Boston Marathon bombing and the people of America

The Embassy of Afghanistan released the following condolences and word of solidarity to the victims of the Boston Marathon bombing and the American people:

AfghanLetterhead

FOR IMMEDIATE RELEASE April 16, 2013

Ambassador Eklil Hakimi offers his condolences to the American people

I am deeply saddened to learn of the loss of life and innocent people injured at the Boston Marathon yesterday. We condemn this heinous act in the strongest possible terms. We greatly sympathize with those affected and offer our deepest condolences to the loved ones of those lost. The city of Boston, along with all of the American people, are in our thoughts and prayers.

This kind of deplorable violence is all too familiar to my fellow Afghans. We cannot let these cowardly acts diminish our resilience and drive towards a better tomorrow for all. United in our mutual pursuits, Afghans will continue to work with our American partners to combat violence around the world.

Sincerely,

Eklil Hakimi
Afghan Ambassador to the United States

The Right to Refuse Foreign Visitors: One of the Few Rights Guaranteed to GTMO Detainees

Earlier this month, the U.S. State Department denied a Russian delegation permission to visit with Ravil Mingazov (ISN 702), a detainee in Guantanamo Bay.

Mingazov is well known in Russia, as a former ballet dancer who had appeared on national television. He converted to Islam while living in Russia, but fled the country to Afghanistan to escape anti-Muslim prejudice. The U.S. captured Mingazov when he was found in a terrorist safe house in Pakistan in 2002. He is also accused of training in al-Qaeda linked camps. Mingazov conveyed, through his lawyers, that he fears returning to his country after the treatment other Russian former-detainees have received upon arriving home. According to Mingazov’s lawyers, “They were subject to persecution upon their release and based on that he does not want to go back.”

Mingazov was in fact ordered released by a federal judge in May of 2010, although he currently remains in Guantanamo. The US has appealed this decision. It is possible that his desire not to be returned to Russia will, or already has, held up his transfer. It is also possible that reasons unknown will keep him in Guantanamo Bay, like numerous other cleared detainees.

Although the State Department had facilitated the Russian delegation’s visit to the military base in Cuba, permission to visit with Mingazov was denied when he refused to see them. According to State Department spokesman Victoria Nuland, there is “a longstanding policy of not forcing such interviews if they’re not voluntary.”

Apparently detainees have a right to refuse foreign visits, but not food, as involuntarily force-feeding is ongoing during the current hunger strike. This highlights one of the many quandaries of Guantanamo Bay.

Ed Dabek, Research Fellow
Center for Policy and Research

SETON HALL LAW SCHOOL ISSUES REPORT DETAILING GOVERNMENT SPYING CAPACITY ON GTMO LAWYERS AND CLIENTS

Attorney-Client Meeting Rooms Implanted with Cameras that can Read ‘Tiny Writing’ and Microphones Disguised as Smoke Detectors that can Hear ‘Whispers’
Seton Hall University School of Law’s Center for Policy & Research has issued a report: “Spying on Attorneys at GTMO: Guantanamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship.” The report details the surveillance and recording technology in designated attorney-client meeting rooms at Guantanamo Bay— capacities that are inexplicable unless being utilized to eavesdrop on confidential communications. The report also details the often contradictory if not false government statements regarding attorney-client privacy and the utilization (or even the existence) of the hyper-sensitive monitoring equipment installed in the supposedly private rooms.
The issue of government surveillance encroaching upon attorney-client privacy is expected to come to a head in the upcoming Military Commission Hearings in Guantanamo Bay.
Law Professor Mark Denbeaux, Director of the Seton Hall Law School’s Center for Policy and Research, commented, “If the government has spied on attorney client communications discussing trial strategy the legitimacy of the military commissions is again in grave jeopardy. It is now clear that the government has secretly implanted surveillance equipment in the meeting rooms that has spying capacities that are inexplicable unless being utilized to eavesdrop on confidential attorney client communications. The court must determine the extent to which such communications have been penetrated; if the government spying allows the government to know an attorney’s defense before trial, the proceeding ceases to be a trial and is reduced to a farce.”
The Seton Hall Law Report concludes that lawyers at Guantanamo Bay can no longer assure their clients that the government is not listening to their conversations or reading or recording the attorneys’ written notes. The report further notes that:
  • Listening devices in the attorney-client meeting rooms are disguised as smoke detectors.
  • The listening devices are so hypersensitive that they can detect even whispers between attorneys and their clients.
  • Cameras in the attorney-client meeting rooms are so powerful that they can read attorneys’ handwritten notes and other confidential documents.
  • The cameras can be operated secretly from a location outside of the room.
  • The attorney-client meeting rooms turn out to have been the former CIA interrogation facility.
  • Importantly, the CIA recording equipment was upgraded after the CIA left.
“With cameras and microphones so powerful they can read ‘tiny writing’ and hear ‘whispers,’ the government assurance of a right to counsel seems more like a trap than a right,” said report co-author and Seton Hall Law student Adam Kirchner.

 

Abu Ghaith Trial Postponed Due to the Sequester

It seems as though the already controversial Federal trial of Usama Bin Laden’s son-in-law, Sulaiman Abu Ghaith, may be in jeopardy- at least temporarily.

Abu Ghaith’s trial began on March 8 when he pled not guilty to conspiracy charges based on intelligence pointing to possible connections with Al-Qaida and the 9/11 attacks.  Prior to Monday, Abu Ghaith’s trial was scheduled to begin as early as September.  However, the recent sequester that has slashed federal government spending will now push proceedings back as far as 2014.

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Abu Ghaith’s public defenders argued that blanket budget cuts of 5.1 per cent would not allow them to adequately defend their client, especially given the gravity of the charges against him.  In addition, the budget cuts will force the defense team to take at least a five-week unpaid furlough this fall.  The prosecutors also requested a postponement, agreeing with the defense that the sequester will place a heavy burden on both sides during trial preparation.  Judge Lewis Kaplain called the delay “troublesome,” noting that it was difficult to contemplate that such a high-profile case would be delayed due to budget difficulties.  Still, he agreed and set the trial date for January 7, 2014.

In addition to pushing the trial back, the defense also moved to strike a 22-page statement made by Abu Ghaith shortly after he was turned over to U.S. forces in Jordan.  They also said they will seek a venue change, partly due to the close proximity to the Manhattan federal courthouse to the former site of the World Trade Center, which they believe may have an effect on the jury’s verdict.

Chris Whitten, Research Fellow
Center for Policy and Research

Center for Policy and Research Featured in “The New Yorker”

Yesterday, The New Yorker ran an article featuring the research of Seton Hall Law professors Jonathan Hafetz and Mark Denbeaux and the Center for Policy and Research Fellows.  The article, “The Dark Ages: A Critic at Large,” details the origins of the War on Terror and analyzes how due process and other legal matters have changed over time. The article draws on two books written by Professor Hafetz, “Habeas Corpus After 9/11:  Confronting America’s New Global Detention System,” and “The Guantanamo Lawyers:  Inside a Prison, Outside the Law,” which was co-edited by Professor Denbeaux.

The article brings to light the brutal tactics used by the DOD in interrogations of detainees at Guantanamo and other military installations throughout the world.  It also points out that the Bush administration was not held accountable for these alleged human rights abuses, instead choosing to create rules and procedures ad hoc to work around existing international and domestic laws.  In addition to citing Professor Hafetz and Professor Denbeaux’s work, the article references the Center for Policy & Research’s flagship “Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data,” noting that only five per cent of Guantanamo detainees had been arrested by U.S. forces.  Pakistani and Northern Alliance forces had captured forty-seven per cent based on bounties issued by the U.S. military.

In addition to this reference, the Guantanamo Reports have been introduced into the Congressional record by the Senate Armed Services Committee, the Senate Judiciary Committee, the House Armed Services Committee, and as part of a Resolution by the European Parliament.  While the Center for Policy and Research is still working to uncover information regarding Guantanamo Bay and the treatment of detainees, work done by its students and faculty continues to affect public opinion and policy change.

Christopher Whitten, Research Fellow
Center for Policy & Research

GTMO Force-Feeding Kit

Image There has been significant media coverage of the GTMO hunger strikes over the past few weeks, and the latest updates report that 10 detainees are currently being force-fed by GTMO officials.  While official policy is to force-feed once a detainee’s weight drops low enough that it is a health risk and it is framed as a life-saving measure, force-feeding at GTMO is a decidedly unpleasant experience.

In a 2006 New York Times article, a former detainee describes the force-feeding process.  He says,

“The head is immobilized by a strap so it can’t be moved, their hands are cuffed to the chair and the legs are shackled,” he continues to say,

“They ask, ‘Are you going to eat or not?’ and if not, they insert the tube. People have been urinating and defecating on themselves in these feedings and vomiting and bleeding. They ask to be allowed to go to the bathroom, but they will not let them go. They have sometimes put diapers on them.”

“The tube” this detainee refers to is the thick feeding tube used to administer cans of Ensure to detainees through their nose.  Detainees describe this as an incredibly painful experience, with guards ignoring their protests and leaving them strapped into the feeding chair until they have ingested a sufficient amount of nutrition.  The process is intentionally painful and humiliating, in hopes that it will encourage the detainee to discontinue his hunger strike, and occurs several times per day until the detainee voluntarily eats a meal.

Kelly Ann Taddonio, Research Fellow
Center for Policy & Research

Drone Courts and Transparency

On March 31, Greg McNeal, a national security law professor at Pepperdine, spoke with NPR’s Weekend Edition about targeted killing accountability and transparency, including the possibility of a drone court. A short clip is available at Lawfare, where McNeal has been blogging on drones and targeted killing for a couple of months. I haven’t followed his work at Lawfare (though I will assign my self the task of catching up), but I am heartened to hear that he appears to agree with the stance I have taken in previous posts on this site (here, and here, and here), and for many of the same reasons. He goes on, however, to very insightfully explain the dynamics that cause Congress to be, heretofore, unwilling to draw red lines on drones and targeting killing abroad.

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Seton Hall’s Jonathan Hafetz Published in “The Guardian”- “Deprived of justice, the Guantanamo detainees’ last resort is to hunger strike”

Seton Hall professor Jonathan Hafetz’s article “Deprived of justice, Guantanamo detainees’ last resort is to hunger strike” was published last week in The Guardian.  

In contrast to the articles focusing on why these hunger strikes won’t work, Hafetz instead focuses on why detainees need to hunger strike. Hafetz, a professor of international law and counsel to Guantanamo detainees, writes that refusing to eat is the only means the detainees have of exerting control over their captors and reminding the public of their humanity.  While legal rulings and policies surrounding GTMO can (and have) been ignored, US officials cannot ignore a dying detainee.  At a minimum, the hunger strikes remind the public that Guantanamo is still open and remains a significant human rights issue.