Lawyers Permitted to Photograph Guantanamo Detainee KSM’s Scars

In a piece published in yesterday’s Miami Herald, noted Guantanamo journalist Carol Rosenberg announced that military judge James Pohl will allow defense attorneys to photograph the scars on the wrists and ankles of accused 9/11 mastermind Khalid Sheik Mohammed (“KSM”) and his co-defendant Walid bin Attash. This is a significant development, as it could be used in the trial of KSM and his alleged 9/11 co-conspirators to demonstrate that the men were subjected to torture while they were being held in U.S. custody at Guantanamo Bay Detention Center. Continue reading

Congress Battling Over NSA Reform

As the debate over the NSA surveillance scandal rages on, two Congressional committees are now in the midst of a battle that will determine who gets the first crack at reforming the NSA’s intelligence gathering policies.  The battle between the House Intelligence Committee and House Judiciary Committee will largely determine the extent to which the Foreign Intelligence Surveillance Act (FISA) will be modified in the post-Snowden era.  While much is still unclear, a historical comparison to the Pike and Church Committees from the Cold War era may well demonstrate which stance the government should take on NSA reforms. Continue reading

Drone Strikes Remain in CIA Territory

Six months after the White House announced that drone strikes would move from the CIA’s authority to the DoD, new reports state that the transfer will not be happening any time in the near future.  President Obama originally claimed that the transfer was meant to increase transparency and open up debate in regard to the controversial drone strikes across the Middle East.  While many will undoubtedly criticize the delay, the situation may not be as bad as it appears on its face.  In fact, it may be that keeping drone strike capabilities in the hands of the CIA will actually be a positive in the long run. Continue reading

Re-visiting Mefloquine Use at Guantanamo: A Guest Post by Dr. Remington Nevin

Dr. Remington Nevin is a consulting physician epidemiologist board certified in Public Health and General Preventive Medicine by the American Board of Preventive Medicine. Dr. Nevin specializes in the evaluation and diagnosis of adverse reactions to antimalarial medications, particularly the neurotoxic quinoline derivative mefloquine. A long-time advisor to the Center for Policy & Research, he advised us on our report exploring the government’s use of mefloquine at Guantanamo, Drug Abuse: An Exploration of the Government’s Use of Mefloquine at Guantanamo. Continue reading

A Week at Guantanamo Bay

In August of 2013 I had the opportunity to travel to Guantanamo Bay to represent Seton Hall Law’s Center for Policy and Research as an NGO observer at the 9/11 trials.  In particular, I was able to watch one of many pretrial hearings in the case of the United States v. Mohammed, in which Khalid Sheikh Mohammed (KSM), Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali (AKA al-Baluchi), and Mustafa Ahmed Adam al Hawsawi are named as defendants.  The five detainees are accused of plotting the 9/11 attacks that lead to the deaths of nearly 3,000 people in New York, Virginia, and Pennsylvania.

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The Way Forward in the Drone War

About two weeks ago, I promised to outline a new approach to the US’s national security problems in Pakistan as a way to end or reduce the reliance on drone warfare. Here it is, at least in broad outlines: Continue reading

US Embassies Close in Wake of Terrorist Threat

Unless you live under a rock, you’ve probably heard about the State Department’s response to an alleged terrorist threat this past Friday.  The State Department issued a travel alert to all Americans traveling abroad and even went so far as to close 21 foreign embassies over the weekend, 19 of which will remain closed through this week.  Although the embassies that are now closed are located mostly in the Middle East and North Africa, the travel alert covers Americans traveling to all parts of the globe. Continue reading

NSA Received Help from FISA for Surveillance Authorization

Just as many predicted from the beginning, it looks like the NSA surveillance scandal has reached beyond the NSA to other branches of government.  On Saturday the New York Times reported that over the past few years, the Foreign Intelligence Surveillance Court, or FISA, has basically created an entire new category of law pertaining to surveillance for the NSA and CIA.  FISA has reportedly handed down over a dozen classified rulings on everything from espionage to nuclear proliferation to cyber attacks.  It appears that FISA has quietly taken over the Supreme Court’s role in all matters pertaining to surveillance.

Most notably, the court used a particular case to expand a little-known doctrine called the “special needs” doctrine that allows authorities to sidestep the Fourth Amendment by performing search and seizure operations without the need for a warrant.  The government claims that this expansion of the special needs doctrine is only applicable in terrorism-related cases.  The exception is typically used only for things like airport screenings and DUI checkpoints.  Professor William C. Banks of Syracuse University stated that the use of this doctrine is just “another way of tipping the scales toward the government in its access to all this data.”

So how can FISA justify the expansion of this doctrine, essentially abandoning the use of the Fourth Amendment’s protection from arbitrary searches and seizures?  It looks like it came down to the interpretation of one word:  Relevant.  Instead of interpreting the word in the narrow sense used in most criminal cases, the court elected to broaden its scope, allowing the NSA to collect any records that could possibly be relevant to national security concerns.  This interpretation has drawn sharp criticism in the past few days.  A senior partner at Perkins Cole LLP, the Justice Department’s go-to firm on federal surveillance law, claims that FISA has destroyed the meaning of “relevant” altogether, essentially changing it to mean “everything.”  He also mentioned that a typical federal or state court would laugh the prosecution out of the courtroom if it tried to argue for this new interpretation.

But what does this mean for the average American?  Probably not much.  As I’ve said before, I don’t think the NSA has the time or resources to rifle though billions of pages of records that they know are not “relevant” to national security.  I have a hard time believing that our government is reading all our “LOL’s” and “IDK’s” when there is so much at stake.  In fact, it’s come out that even though the NSA has the power to collect the records, they still needed a warrant to actually access them.  Sure, the government still has plenty of egg on its face and has sufficiently embarrassed itself on a global scale.  But now, roughly a month after Edward Snowden first released information on this scandal, we still have yet to hear of any connection between the NSA’s programs and any non-terrorism-related arrests.

With that said, it’s hard not to be concerned when courts hand down secret rulings that essentially throw away our Constitutional protections.  At least for now the traditional law requiring warrants for searches and seizures still applies to normal cases, but that won’t make to many people feel better about the fact that we have a highly secretive court handing down classified decisions that have the potential wipe out our most basic freedoms.  I’m usually willing to give the government a pass when it comes to protecting our national security, but this has to stop somewhere.  I think it’s safe to say that the American government has officially pole-vaulted over that fine line between protecting our freedom and trampling on it.

Chris Whitten, Research Fellow
Center for Policy and Research

New Reports: U.S. Spied on Foreign Embassies

And the plot thickens.  It now looks like Edward Snowden’s release of NSA and CIA information will have ramifications outside the borders of the United States.  If you’ll recall, Snowden not only released secrets on the NSA’s PRISM program that involved collecting the phone and Internet records of millions of Americans, but also released information on American and British surveillance programs that targeted foreign diplomats at international summits.  Now members of the European Union, which includes some of America’s strongest allies, are speaking out against the programs.

The scandal seems to go deeper than we originally thought.  The initial accusations included claims that the British government had set up fake Internet cafes during the G20 summit and monitored diplomatic communications among foreign representatives.  We are now learning that this may have also gone on within U.S. borders.  New documents suggest that American intelligence agencies were monitoring up to 38 foreign embassies, including those belonging to Germany, France, Italy, South Korea, Japan, India, and countless others.  The NSA reportedly hacked into encrypted fax machines and was able to read communications that these diplomats were sending back to their home countries.

This new information has caused the European Union to question the integrity of the American government.  EU Commissioner for Justice Viviane Reding voiced her concerns about how trade negotiations could continue with this knowledge.  In addition, Germany Chancellor Angela Merkel said, “this is unacceptable, it can’t be tolerated.  We’re no longer in the Cold War.”

I tend to agree with Commissioner Reding Chancellor Merkel.  I don’t think anyone would be surprised or outraged if we were spying on North Korea or Iran.  After all, both of those countries have made serious threats against the United States and/or its allies.  One could make a strong argument that it would be necessary to spy on those countries to protect our interests.  But the countries we are not accused of spying on do not exactly fit into the same category.  Just look at the list.  Germany, France, Italy, South Korea, Japan, and India are all included in the top 15 trade partners of the United States, and there are surely other important trade partners on the list of 38.  They’re all countries that we more or less have friendly relations with.  And they’re all countries that we have invited onto our own soil, supposedly in an effort to improve those relations.  And now the American government has caused its own citizens and foreign governments to question its motives.

The most important question here is simply, why?  Why jeopardize our relationships with our most important allies?  And what are we even looking for?  Back in 2008 General Keith B. Alexander, head of the NSA, asked during a visit to a British intelligence station why we couldn’t collect all the information we can as often as we can?  That suggests to me that we might not even be looking for anything in particular.  It looks to me like we’re spying just for the sake of spying.  And that’s probably the most troubling part of this whole ordeal.  We’re breaking the trust of countries that we depend on for what amounts to nothing.

If you’ve read any of my other blogs on the NSA scandal, you’ll probably see that I’m a little more willing than some to give the government a pass when it comes to surveillance as long as they aren’t using the information to censor us or hamper our freedoms.  But this is a whole different animal.  We are by no means a self-sufficient country.  We depend on foreign trade and if you look at the largest foreign owners of U.S. debt you’ll see quite a few EU and Asian countries on that list.  We’re playing a dangerous game here.  We’re no longer talking about collecting data to stop terrorism.  That at least has some merit.  Now we’re talking about spying on our allies, allies who have to be able to trust us to conduct business or any other sort of diplomatic relations.  Well, kiss that trust goodbye.  We just keep digging ourselves deeper and deeper into what’s beginning to look like a bottomless pit.

The United States government:  Breaking the trust of American citizens and foreign governments since (CLASSIFIED).

Chris Whitten, Research Fellow
Center for Policy and Research

Trials for Alleged 9/11 Plotters Resume at Guantanamo Bay

Lost in the shuffle during a week where the NSA scandal has dominated headlines is more news coming out of Guantanamo Bay.  On Monday, the government released the identity of Guantanamo’s “indefinite detainees,” or those who the government has deemed too dangerous for release regardless of whether they can be tried in a military court.  The government has already announced that a number of these detainees will be held indefinitely even though they cannot be tried due to lack of evidence. The names have been kept secret since 2009 when multiple agencies investigated files on detainees in order to support President Obama’s initial effort to close the Guantanamo Bay Detention Center.  Normally these detainees could not be constitutionally held without the possibility of trial, but in 2001 Congress authorized the practice with the “Authorization of Military Force” bill.

Human rights groups including Human Rights Watch and Amnesty international have condemned the idea of “indefinite detainees,” calling for the release of all prisoners that the government has no intention of trying in a court of law.  Some men on the “indefinite detainees” list are actively involved in the well-documented hunger strikes.  At least two, both Afghani men, are deceased, with one committing suicide and the other dying of natural causes in Camp 6.  While the practice of holding detainees without the possibility of trial may be controversial, the release of their identities is a small step towards the transparency and legitimacy that human rights groups have been calling for in recent years.

In other Guantanamo-related news, pre-trial hearings for five men accused of plotting the September 11th attacks resumed on Monday, four months after CIA listening devices were discovered in conference rooms used by the detainees’ attorneys.  Included in this group is Khalid Sheik Mohammed, the alleged mastermind of the attacks.  The hearings included statements from defense attorneys claiming that CIA personnel tortured the detainees while they were being held in overseas prisons prior to their transfer to Guantanamo Bay.  They have also filed motions to dismiss the case due to meddling by senior military officials.

Also present in the courtroom were two victims and family members of three other victims that perished in the attacks.  The observers met with prosecutors and defense attorneys earlier in the week and pleaded for a quick and efficient trial.  At least one victim, a firefighter who was injured by falling rubble in the aftermath of the attacks, is expected to testify on behalf of the prosecution.  As one could imagine, the trials will probably not be very speedy.  Detainee trials at Guantanamo have been ridiculed for many reasons, one of the biggest being that they are inefficient and often take years to complete.  These particular observers have been waiting on an outcome for some twelve years.  Although the trials are resuming, we may have to wait a lot longer to see a resolution.

Chris Whitten, Research Fellow
Center for Policy and Research