Abu Anas al-Liby, the Libyan man and suspected al-Qaeda leader accused of aiding the 1998 U.S. embassy bombings in East Africa, appeared in a New York federal court for the first time yesterday. Al-Liby pleaded not guilty to charges linking him to the bombings, as well as charges that allege that he plotted with Osama bin Laden to attack American troops across the Middle East. Reports from inside the court stated that al-Liby appeared weak and in poor health, most likely due to his decision to stop eating while aboard a U.S. ship as well as an ongoing bout with hepatitis. Al-Liby was captured earlier this month after he was found by American special forces in Tripoli. Continue reading
The United States announced yesterday that Libyan terror suspect Abu Anas al-Liby (also known as Nazih al-Ragye) has been transferred to the United States after being held and interrogated aboard a U.S. Navy ship since his capture in Tripoli on October 5th. He is being held as a suspect in the 1998 bombings of the U.S. embassies in Kenya and Tanzania which killed 224 civilians. A criminal indictment was filed against him in 2001 for his suspected involvement in the embassy bombings, but he has evaded capture for over a decade. Continue reading
The FBI issued a press release Thursday morning announcing that Nizar Trabelsi, a 43 year-old Tunisian and alleged member of al Qaeda, has been extradited to the United States from Belgium. After twelve years in custody, Trabelsi faces charges stemming from a plot to bomb an overseas NATO base and has been held in Washington D.C. since his arrival in the country.
Judge Pohl, Chief Presiding Officer for the Guantanamo Military Commissions, ruled yesterday that pretrial hearings will move forward for the five Guantanamo prisoners charged in the September 11th attacks. In doing so, he denied a request by the detainees’ lawyers to pause the case until the Pentagon resolves concerns about the security of their computer system. Continue reading
Yesterday, Col. Denise Lind, the military judge presiding over the Bradley Manning case at Fort Meade, acquitted Manning of the charge of aiding the enemy. The charge was the most serious that Manning faced, and almost certainly would have led to life in a military prison. For those of you unfamiliar with Bradley Manning, he is the Private First Class who was on trial for releasing the data published by Julian Assange on Wikileaks. Because of that, the case has received a great deal of attention from both the media and human rights groups who are attempting to find a balance between government secrecy, transparency, and civil liberties.
Bradley Manning’s acquittal on this charge is not exactly surprising given that it was unprecedented for the government to bring such a charge in a leak case. But still, the government’s argument made some sense if you look at the letter of the law. Luckily, common sense seems to have prevailed. I don’t believe (and I certainly don’t think the government could prove) that he intended to aid the enemy, and a vast majority of the information he leaked probably did not aid al-Qaeda or other terrorist groups in any way. On top of that, there seems to be a lot of questions regarding whether or not most of the information should have been classified in the first place.
That’s not to say that Bradley Manning’s actions weren’t worthy of punishment. Any way you look at it, it’s probably not a good policy to allow military personnel with security clearance to release classified information. But that’s where the other charges come into play. Manning is by no means off the hook. Yes, he beat the most serious and highly publicized charge against him, but he was still convicted of a myriad of other charges. Manning was still convicted of six violations of the Espionage Act of 1917, as well as most of the other 22 charges lodged against him (10 of which he has already plead guilty to). He faces a maximum of 136 years in prison, although he probably won’t receive the maximum sentence due to the plea bargain I mentioned. Regardless, it’ll probably be pretty hefty.
A statement put out by Reps. Mike Rogers (R-Mich.) and C.A. Dutch Ruppersberger (D-Md.), both members of the House Intelligence Committee, was cautiously optimistic but also a little confusing to me. Here it is:
“Justice has been served today. PFC Manning harmed our national security, violated the public’s trust, and now stands convicted of multiple serious crimes. There is still much work to be done to reduce the ability of criminals like Bradley Manning and Edward Snowden to harm our national security. The House Intelligence Committee continues to work with the Intelligence Community to improve the security of classified information and to put in place better mechanisms to detect individuals who abuse their access to sensitive information.”
My confusion here comes from their claim that they are working hard toward securing classified information and our national security. It seems to me like their plan is to bring the hammer down on anyone like Bradley Manning who leaks information to deter others from doing the same. I know that leaking classified information is different than murder in that it’s usually a planned, calculated act. The leaker usually knows there’s a good chance he might get caught, so I can see the logic behind a deterrence theory argument. But I highly doubt anyone planning to pull a Bradley Manning-esque stunt doesn’t already know that the crime carries a serious penalty.
Maybe instead of throwing the book at Bradley Manning, who seems to have had serious concerns about the military’s policies, we should take a look at overhauling our classification systems. And maybe we shouldn’t be handing out security clearances like candy. Politicians should absolutely go after people like Bradley Manning and Edward Snowden. Leaking government secrets should be punished. But the politicians should at least own up to the fact that this is partially their fault. If we start paying attention to what we classify and who we give security clearance to, we won’t find ourselves in these situations.
Chris Whitten, Research Fellow
Center for Policy and Research
In an opinion piece in the Boston Globe, lawyer Harvey Silverglate claims that the FBI follows a policy of not recording interviews with suspects and witnesses in order to be able to put words in their mouth. He points specifically to the case of Robel Phillipos, who was recently arrested and charged with making materially false statements during the course of the investigation of Dzhokhar Tsarnaev, the suspect in the Boston bombing.
Mr. Silverglate has a point. Without electronic recording, the FBI agent can sit in the interview room, taking whatever notes he pleases, and then later attribute those statements to the interviewee. The interviewee, in disputing the statements, risks prosecution for the same crime now being alleged against Robel Phillipos. Mr. Silverglate apparently thinks that creating this opportunity is the reason for the FBI’s policy.
But there are a couple of problems with this theory. First, to do this would be a crime–the same crime that Robel Phillipos is charge with in fact, along with a couple of others. Second, the FBI do not want to soil their own evidence. Even apart from the implications for admissibility or weight, if it becomes known that an agent is falsifying witness statements, false witness statements only harm the investigation by adding incorrect information into an already complex picture.
Last, but not least, Mr Silverglate doesn’t address the one feature that may help to level the playing field between the FBI and the witness: the jury. A witness statement is not at all like a piece of physical evidence. The jury does not simply note that it exists (theoretically, the jury doesn’t even stop here for physical evidence). Instead, when confronted with the claimed falsification of the statement, the jury will decide which of the two parties they believe is telling the truth. Ignoring this aspect severely undercuts Mr. Silverglate’s argument.
However, in the end, his point still stands. Why, with the ubiquity of hand-held recording devices (like the on in your pocket or purse that rings from time to time), doesn’t the FBI record all interviews as a matter of course. If for some reason a recorder cannot be found, they can always revert back to their paper-only method, and explain to the jury why they had to do so. But it would effectively remove the possibility of interviewees claiming that they were misquoted or that their statements were falsified. And in this respect Mr. Silverglate is correct. This should be a non-issue.
Paul W. Taylor, Senior Fellow
Center for Policy and Research
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.
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
Earlier this month, on March 8, Sulaiman Abu Ghaith, Usama Bin Laden’s son-in-law, pleaded not guilty to a charge of conspiracy to kill Americans in a federal courthouse in Manhattan. Although his connections with the infamous 9/11 attacks are disputed, he is charged with publically praising the attacks and providing support to Al Qaeda for roughly 15 years. This will undoubtedly be one of the most high-profile terrorist-related trials to take place since the beginning of the War on Terror given the Abu Ghaith’s alleged ties with Bin Laden, but the circumstances surrounding it have already given rise to harsh criticism from politicians and the general public.
In particular, the main cause for concern is the curious decision to try Abu Ghaith in a federal court rather than a military commission trial at Guantanamo Bay, as is normally the course of action in terrorism-related cases. Lawmakers argue that this decision could have far-reaching implications not only for the Abu Ghaith trial, but for future terrorism-related trials as well.
But what are these implications? For starters, the Abu Ghaith trial begins a new chapter in a fight between President Obama’s administration and Congress. In 2009, President Obama announced that he would transfer five Guantanamo detainees to the United States to face criminal charges in federal court. Opponents of Obama’s plan argued that transferring suspected terrorists to U.S. soil would compromise national security and could lead to wrongful acquittals of guilty parties. Those in favor of the plan countered by pointing out the efficiency and fairness of the American justice system.
Congress ultimately responded by enacting legislation that froze the funds needed to make those transfers happen. The Obama administration has seemingly found a loophole in the Congressional act, which only covers Guantanamo detainees, by bringing suspected terrorists to the United States without first holding them at Guantanamo.
Beyond policy considerations, there are legal implications at the heart of the discussion. In regard to the Abu Ghaith trial, critics argue that Abu Ghaith will be granted rights under the Due Process clause of the Constitution during his trial in federal court that would not exist if he were tried at Guantanamo Bay. For instance, a military commission does not grant the right to a speedy trial that would be applicable in federal court. However, the Supreme Court has yet to voice its opinion on whether these rights would also be applicable in a military court, which leaves some uncertainty as to whether these concerns are legitimate.
The type of evidence allowed also differs between military commissions and federal courts. While both would allow coerced testimony obtained at the point of capture, military commissions typically allow hearsay evidence, which will be barred in federal court. This will be a significant difference, especially because the federal prosecutor will have a higher burden of proof than a military commission would require. However, this burden may not pose problem that critics cite, as federal courts have had a 91% conviction rate in terrorism-related cases since the 9/11 attacks.
Along those same lines, defendants in the federal court system may have greater access to witnesses than in military commissions. In military commissions, the defendant would have no right to subpoena witnesses. Also, although the judge in a military commission has the power to compel witnesses to appear, he does not have to do so depending on the circumstances. During the course of his trial, Abu Ghaith will have a better opportunity to call witnesses in support of his defense. Critics argue that these differences may lead to a wrongful acquittal of a suspected terrorist. However, the extra burden may not pose the problem that critics cite, as federal courts have had a 91% conviction rate in terrorism-related cases since the 9/11 attacks.
The human rights group Human Rights First points out that a trial at federal court will protect defendants from being convicted ex-post facto. In other words, defendants will not be convicted of crimes that were not articulated by the legislature at the time they were allegedly committed. Military commissions allow such convictions, meaning that a defendant may have no prior notice that he is committing a criminal act at the time of his actions.
Finally, the process of selecting the judge and jury are much different in federal court than in a military commission. In a military commission, the U.S. military handpicks the judge and selects the panel (the equivalent of a jury) from the enlisted military. In federal court, judges are appointed for life before hearing any cases and the jury is picked from the general public. Those in favor of federal court trials argue that these procedural steps will lead to a fairer trial for defendants.
As the son-in-law of Usama Bin Laden, Sulaiman Abu Ghaith’s trial will naturally catch the public’s eye. The publicity will only be heightened by the controversy surrounding the Obama administration’s decision to try Abu Ghaith in federal court rather than in a military commission, the type of trial Guantanamo Bay was created specifically for. With so many differences in procedural, evidential, and political matters, it will be interesting to see how the Abu Ghaith trial plays out.
Christopher Whitten, Research Fellow
Center for Policy & Research
This morning Sulaiman Abu Ghaith, a son-in-law of Usama Bin Laden, pleaded not guilty to the charge of conspiracy to kill Americans. Interestingly, this took place not in a military commission at Guantanamo Bay, but in federal court in lower Manhattan, just a few blocks from the site of the 9/11 attacks.
While Abu Ghaith’s connection to the 9/11 attacks is disputed, he is charged with publicly praising the 9/11 attacks and supporting al Qaeda/UBL for nearly 15 years. Numerous sources cite him as being the most senior al Qaeda member to be tried in the United States.
Not surprisingly, the decision to hold his trial in federal court has drawn significant criticism from the press, politicians, and the public- and it was just announced yesterday. NYC Mayor Michael Bloomberg is quoted as saying “Would I prefer to have it [the prosecution of Abu Ghaith] elsewhere? I’m not going to get involved in that because I don’t want to make the president’s job any more difficult.” Other political leaders were not so diplomatic, Republican Senators Lindsey Graham and Kelly Ayotte described the Obama administration’s decision to prosecute Abu Ghaith in federal court as “sneaky” and contradictory to the will of Congress.
Today was just a simple 20-minute arraignment, but given the press and publicity Abu Ghaith has received thus far, his prosecution seems like it will be a lengthy and contentious process.
Kelly Ann Taddonio, Research Fellow
Center for Policy and Research
2L student Josh Wirtschafter is in GTMO this week observing the military commission hearings. His observations from the Tuesday, February 12th hearings are printed below.
Although unclear at times, the issue for the second day of pre-trial hearings in United States v. Mohammed, et al., concerned the extent to which “The Man Behind the Curtain” could monitor attorney-client and attorney-attorney privileged communications from both inside and outside the courtroom. Three witnesses testified to this issue. Based on what was said— and sometimes what was not said— tremendous light was shed on what appears to be the potential for serious breaches of attorney-client and attorney-attorney privileged communications at Guantanamo Bay.
And the Gates Are Open…
The morning was a techie’s fantasy. Mr. Maurice Elkins, the program and design manager of the video and audio recording system in the courtroom, testified as to the specifics of the in-court microphone system. Ably guided by Mr. Connell, defense counsel for Mr. al Baluchi, Mr. Elkins drew for the record a distinction between “gated” and “pre-gated” audio. The former is the filtered version of speech heard in the courtroom and disseminated to the press, nongovernmental organizations, and victim’s families in the gallery. The filter is the “gate,” which only opens when a speaker’s decibel level exceeds a certain threshold. Basically, the gated feed is the sound of those speakers who intend to be heard—those who speak at a normal decibel, not a whisper. On the other hand, the “pre-gated” audio feed is all of the other noise absorbed by the 27 hypersensitive microphones in the courtroom—everything above, below, or at normal decibel levels— which is to say: every whisper, side conversation, or pin drop in either the front or in the back of the room; even the whispers among defense counsel. It is a soup of sound— but one filled with privileged morsels.
Mr. Elkins explained that the pre-gated feed is sent only to the court reporter, the interpreters, and to the Original Classifying Authority (OCA). He further clarified that the court reporter was the only one of those three, to his knowledge, to have For The Record Gold (FTR Gold) software, which has recording and untangling capabilities. Meaning, the court reporter could, if he or she was so inclined, record the pre-gated feed, isolate a particular sidebar conversation, focus in on the one or more microphones picking up that conversation, and increase its sound. Virtually any and all speech in the court is potentially understandable if one has access to the commercially available FTR Gold software.
What Mr. Elkins seemed to be saying is that in court, systemically, only the court reporter is given access to FTR Gold. Unsettlingly, Mr. Elkins testified, however, that “he does not know” what OCA’s capabilities are outside of the court. Presiding Judge James Pohl rehabilitated Mr. Elkins on this point, after Elkins had exhaustingly testified to that exact point—that “he does not know!”
At the climax of Elkins’ frustration, in attempting to prove that he had changed the in-court audio system from “push to mute” to “push to talk,” so as to lend some assurance to the defense attorneys that they could converse with each other and their clients unrecorded if they so desired, Elkins explained, “The distinction with this microphone from which I am speaking at is I have to push it to talk or I have to push to untalk.” Dramatically, Elkins released the talk button, expecting his voice to be cut off from the gallery, but in actuality, I could hear him say, loud and clear, “It’s not pushed right now. So you can hear me inside the courtroom but nobody else can hear me.”
Seemingly, the assurances to the defense counsel were overstated, audibly, and if the “Man Behind the Curtain” had even the Walmart version of FTR Gold when receiving the pre-gated feed, his/its eavesdropping capabilities would be virtually absolute.
Echo II: The Attorney-Client Meeting Room Where the Microphones Don’t Say “Speak into the Mic”
Captain Thomas J. Welsh, Staff Judge Advocate (SJA) for Joint Task Force at Guantanamo Bay Naval Base was brought to the stand next. Welsh testified about his knowledge of audio monitoring capabilities outside of the courtroom—specifically in Echo II, the principle attorney-client meeting room. Among other things, he denied that the microphones in Echo II were concealed. His reasoning: just because it looks like a smoke detector does not mean that it is a smoke detector. Eventually he conceded that Echo II’s microphones are far from being categorized as readily identifiable recording devices, and that they did not look like the “speak into the mic” microphones in the courtroom.
Capt. Welsh testified that upon first assuming his position as SJA, he was unaware that Echo II had audio recording equipment. But in January 2012, Welsh walked-in on a law enforcement agent in an annexed control room listening to the conversation between parties (defense, detainee and prosecution) to the proffer of a plea deal in Echo II. On a number of occasions, Welsh essentially testified that he was surprised and concerned with what he had seen, and further concerned at the prospect that attorney-client privileged communications might be listened to. But when he brought his concerns to the attention of the system operators, he was advised not to worry because “they” certainly do not listen in on attorney-client communications there—only proffers and meetings with delegates from foreign agencies. Without a log system of the audio system’s use, Welsh’s inquiry stopped there.
If Welsh was as surprised as he said he was— and as concerned as he should have been—upon discovering the infrastructural capability for attorney-client privileged communications to be breached, one might think (or at least have hoped) that he would have conducted a more thorough investigation into the history and use of the Echo II microphones. As a Staff Judge Advocate, entrusted with the duty of military justice, one might ask where his duty lies.
A search of his emails for purposes of this hearing—where he limited the search to “monitoring” and perhaps “audio”— brought up a gem.
In an e-mail dated May 8, 2008 in anticipation of a press conference, John Eskelsen, an assistant judge advocate, asks his boss, Captain McCarthy, Staff Judge Advocate (a predecessor of Capt. Welsh) an interesting question.
The Defense Counsel questioned Capt. Welsh about the email while proffering both a question and what may be an explanation:
Question: “…it says that if you, meaning Captain McCarthy, the prior SJA, need an affidavit from me that we did not keep sound recordings, I’d be happy to give it.”
Capt. Welsh: “Yes, it says that.”
Question: “And would you agree with me that the implication of that statement is that sound recordings are made but not kept?”
After some examination Capt. Welsh stated that he “would leave it to the judge to read what he wants to read into it.”
The Logistics Order Has A Language Specification Requirement For a Reason
Mr. James Harrington, Learned Counsel for co-defendant Ramzi Binalshibh, unraveled a dispute over the intended enforceability of the 2011 Logistics Order. This Order, drafted by Captain Welsh, approved by Welsh, and intended to be enforced by JTF-GTMO, set forth the updated standard operating procedures that defense counsel must obey prior to meeting with their clients in Echo II. One of the many detailed procedures requires defense counsel to alert JTF-GTMO of what language they intended to speak during the meeting. Welsh brushed off the seriousness of this provision, saying that it is never enforced in practice.
It is obvious, however, that the only way to enforce this provision would be for the government to hire a translator to listen-in on the proceedings. Without any tracking or logging system attached to the use of the audio recorder in Echo II, the government could have been listening-in all along. It also calls into question whether they needed to know what language defense counsel would be speaking, in order to get a translator to listen in and monitor the conversation if the language chosen was something other than English.
Learned Hand Would Have a Problem with this…
This case has become chock-full-of-sneakiness. Or maybe concealing its intelligence-gathering mission has always been JTF-GTMO’s modus operandi. But it was not until now—the unveiling of the gated and pre-gated audio feeds, the smoke detector-looking microphones, and the curious SOP Orders—that the government’s subterfuge has become so public. Yet, in this case, the government has continued to argue that such intelligence-gathering motives have not resulted in an intrusion upon attorney-client or attorney-attorney privileged communications. Rather, that it is a by-product of the defense’s illusions and paranoia.
However, if intelligence-gathering is truly not an issue of concern, then why not appease the defense? Why not eliminate the pre-gated feed system? Why not completely remove the microphones in Echo II? As Judge Learned Hand might say, the solution is nearly costless.
Apparently, it is not that simple.
What is a High Value Detainee (HVD)?
Lieutenant Colonel Ramon Torres was the last witness called to the stand. Despite questions I and others might have about his testimony as a result of his having largely discredited himself on numerous occasions, he introduced an interesting topic— one which I would like to indulge for an important moment or two. Lt. Col. Torres stated that during his time at Guantanamo Bay he was, for all intents and purposes, the mailman for the “high value detainees” (HVDs). It was clear from present context that the HVDs he was referring to were Khalid Sheikh Mohammed and his four co-defendants. However, the classification for HVDs is not so neatly quartered. For instance, the present accused were transferred to Guantanamo Bay in September 2006 along with nine other detainees also labeled HVDs, though these nine are of far lower or even nonexistent intelligence value.
If these detainees have little or no intelligence value, then why is it that they have become muddled in the same category as the alleged masterminds of the 9/11 attacks? Importantly, these other nine detainees, though not sharing the intelligence value of the alleged masterminds of the 9/11 attacks, do, however share something with those on trial now: They were all exposed to CIA Dark Sites and those site’s classified personnel, interrogation tactics, location, etc. Seemingly then, criteria for being an HVD can simply be being a DSS (Dark Site Survivor).
Sub-classifying detainees according to more narrowly tailored intelligence qualifications could be good starting point for improving the system’s accuracy, and even lend some level of explanation for the military commission process and what appears to be rampant eavesdropping. Again, a more accurate classification of the nine non-mastermind, little or no intelligence value, detainees might be— instead of HVDs, Dark Site Survivors (DSS). Or, in the very least, we can hyphenate the status to show the real issue of concern: HVD-DSS.
Josh Wirtshafter is a fellow at the Center for Policy and Research at Seton Hall University School of Law student. He is a member of the Class of 2014 and is a 2011 graduate of Franklin & Marshall College, where he majored in Religious Studies.