Court of Appeals upholds denial of FOIA request seeking Bin Laden photos

The Court of Appeals for the District of Columbia yesterday decided to uphold a district court ruling that the US did not have to release photos of taken during and after the raid on Osama Bin Laden’s compound in Abbottabad, Pakistan. The photos were sought by a conservative watchdog group, Judicial Watch, under a Freedom of Information Act request. The court found, however, that since the photos were used to conduct facial recognition to verify the body as Bin Laden, releasing the photos could endanger intelligence methods.

While I do not dispute that ruling, I am happy about the outcome on another ground altogether. John Bennett, director of the CIA’s National Clandestine Service, described the photos in a declaration to the court as “quite graphic, as they depict the fatal bullet wound to and other similarly gruesome images of his corpse.” And according to the Appeals Court,

“As the district court rightly concluded, however, the CIA’s declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al-Qaida could cause exceptionally grave harm.”

To my mind, this decision validates an important reason for the Freedom of Information Act: informational transparency. Congress did not pass it to give the media free access to salacious material to boost their ratings.

As citizens of an open democracy, Americans have a right to information about their government and its activities. But where the government has a legitimate reason for withholding a document, even if it is on grounds such as diplomatic “embarrassment,” as happened in the Bradley Manning Wikileaks case, a FOIA request should as a matter of policy only be granted if there is a legitimate informational purpose. Judicial Watch could identify no cognizable information contained in the pictures that was not already publicly known. Thus, releasing the photos would not serve FOIA’s purpose of informational transparency, only the media’s purpose of generating buzz.

A vastly undervalued aspect of protecting our rights as citizens of an open society is to avoid abusing those rights. One example of the dangers that fear of unwarranted disclosure can cause can be found in the case of the CIA interrogation tapes. Fearing that these tapes may at some point become public, the CIA destroyed them. The courts yesterday thus did us a favor in protecting the government from unnecessary disclosure of gruesome photos, helping to ensuring that the government can do its job without fear that anything and everything will wind up on Fox, MSNBC, and Al Jazeera.

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

 

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

Ramifications of Federal Court Trials vs. Military Commission

 

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

A New Look at Targeted Killing Authorities

The Obama administration is reportedly taking another look at the legal foundations of its use of drones for lethal counterterrorism operations. And none too soon, with the changes in the structure of al-Qaeda stretching the AUMF to the breaking point.

Like the war in Afghanistan, the targeted killing campaign in Pakistan, Yemen and elsewhere was undertaken under legal auspices of the Authorization for the Use of Military Force, passed by Congress in the wake of the 9/11 attacks. That law allowed the administration “to use all necessary and appropriate force” against those who “planned, authorized, committed, or aided” the 9/11 attacks or who “harbored such organizations or persons”.

However, with the continuing tactical successes of the dogged and technologically sophisticated campaign to target the core al-Qaeda leadership in Pakistan over the last several years, the terrorist network has become much more diffuse.  This makes finding the necessary connections to the al- Qaeda senior leadership much more difficult, thereby undermining the legal justification for using lethal force. In fact, even detaining these individuals would require that they fall under the AUMF or some other legal authority (something critics of targeted killing often overlook).

This diffusion of al-Qaeda—and the legal authorities for use of force—is not a particularly new phenomenon. After all, after the invasion of Afghanistan, and the routing of the Taliban and al-Qaeda, many al-Qaeda operatives left the Afghanistan/Pakistan theater altogether, dispersing across the globe. They were not going into hiding, per se, but looking for new places to recruit, plan, and carry out their terrorist operations. When the US subsequently invaded Iraq, some al-Qaeda operatives followed us there to take root in the security void we created.

The courts have taken an expansive view of the AUMF, allowing the administration to target these “associated forces,” or what many analysts have called al-Qaeda 2.0. However, these individuals and groups had clear, direct connections to the original, core al-Qaeda element run by Osama Bin Laden and Ayman al-Zawahiri which planned and carried out the 9/11 attacks.

Most al-Qaeda 2.0 groups were founded and run by his lieutenants, and remained in contact with Bin Laden. This is not true of the newest crop of terrorist groups cropping up across the Middle East and Africa. Instead, the leadership of these new groups often learned their trade as lieutenants to al-Qaeda 2.0 leaders and have only the most tenuous connections to the core al-Qaeda group. This makes fitting them into the AUMF scheme difficult, creating questionable legal authority to use lethal force.

According to a senior Obama administration official,

“The farther we get away from 9/11 and what this legislation was initially focused upon, we can see from both a theoretical but also a practical standpoint that groups that have arisen or morphed become more difficult to fit in.”

Even the leaders with the firmest connections often pose legal problems: Mokhtar Belmokhtar, a former fighter in Afghanistan and later leader of al-Qaeda in the Islamic Maghreb (AQIM), had broken ties with AQIM and formed his own group, the al-Mulathameen Brigade operating in Algeria and Mali. The threat he poses to the to the US is not diminished, however. He was the mastermind of the Algerian gas plant attack, which lead to the deaths of three US citizens. However, because he is no longer a part of al-Qaeda or one of its franchises, the administration determined that the AUMF would apply to him.

When those like Belmokhtar and the Benghazi attackers kill Americans, the US could capture them based on criminal law enforcement authorities. However, should we have to wait for US citizens to be victimized before we allow the government to take action, when we know that an individual or group has nefarious intentions? Should we also have to wait until they show up somewhere that we can execute an arrest without undue danger to our agents?

The Obama administration is now looking for ways to square this circle, and create a more permanent framework for dealing with these issues. However, they apparently do not like their options. Simply expanding the current AUMF is unappealing. “You can’t end the war if you keep adding people to the enemy who are not actually part of the original enemy,” according to one person who participated in the administration’s internal debates. But relying solely on the constitutional authority of the President are not appealing either.

And while the administration may be correct that there is little political appetite for it, what is needed is a new authorization, allowing the executive broader authorities to kill or capture terrorists that target US interests, not just those connected to specific prior attacks. But these authorities must be coupled with judicial and congressional oversight procedures to protect against abuse or overuse. In fact, failure to create these authorities with built-in checks will encourage future presidents to rely on their inherent authority to act to defend the country from foreign threats, thus seizing all of the power with none of the constraints.

A more comprehensive “Counterterrorism Operations Powers Act” would create checks on the President’s powers, while still giving him the ability to carry out his duty to protect the nation. It would also help to elucidate the line between law enforcement situations and national security/counterterrorism situations.

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Sulaiman Abu Ghaith Prosecution Begins in NYC

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

Panetta Says the US Didn’t Need EIT’s to Get UBL

Over the past few weeks, the film “Zero Dark Thirty” has undoubtedly brought heightened  attention to the United States’ hunt for bin Laden (UBL).  In the film, some of the more shocking scenes include those in which the main characters, CIA agents, are interrogating detainees at various detention facilities.  The film shows some of the more frequently discussed EIT’s, or Enhanced Interrogation Techniques (arguably, just a more palatable euphemism for torture), including waterboarding, sleep deprivation, food deprivation, stress positions, blasting loud music, and playing off the detainees’ fears and cultural beliefs.

Regardless of whether director Kathryn Bigelow took artistic license when developing these scenes in the film, it is indisputable that EIT’s have been regularly used by the United States in the decade that has passed since the 9/11 attacks.  With the secrecy that shrouded the mission leading to the capture of UBL, it is only natural that the public is hungry for the details regarding how the intelligence leading to that fateful night in Abbottabad .

In an interview on “Meet the Press” that aired Sunday night, outgoing Defense Secretary Leon Panetta said that the search for UBL included piecing together a great deal of disparate information, and admitted that some of the information came from EIT’s, saying “Yes, some of it came from some of the tactics that were used at that time – interrogation tactics that were used.”

However, he continued on to say “I think we could have gotten Bin Laden without [EIT's]“- essentially revealing that the controversial EIT’s were not necessary to achieve the United States’ most significant accomplishment thus far in the Great War on Terror, capturing UBL.

The Media Portrayal of GTMO Attorneys

Zero Dark Thirty, the recently released movie chronicling the hunt for Osama bin Laden, has been winning over audiences and came in at #2 in the Box Office this past week (grossing $1.2 million this week, and $58.1 million to date).  While the movie is undoubtedly well-made, it is just that, a movie, not a documentary.

While many of the Center for Policy and Research fellows have enjoyed the film since its release, all acknowledge that some element of creative license was taken with regards to its depiction of the events surrounding UBL’s capture.

Yesterday, The Hill published a blog post entitled “What Zero Dark Thirty gets wrong about Guantanamo lawyers.” The post was inspired specifically by a scene in the movie in which the CIA believes UBL may be hiding in Abbottabad, Pakistan.  After a government official asks whether a GTMO detainee may be able to confirm his location, a CIA operative responds, “Who the hell am I supposed to ask, some guy in Gitmo who’s all lawyered up?” He then explains that he is skeptical and believes that any GTMO lawyer would simply tip off al-Qaeda.The post continues to question the movie’s portrayal of defense attorneys and its depiction of their motives.

As a law student working in the Center for Policy and Research, I have had the opportunity to meet and interact with several Guantanamo lawyers, in addition to working closely with our director, Guantanamo lawyer and Professor Mark Denbeaux.  After two and years as a Center fellow, I can confidently say that I wholeheartedly disagree with the assertion that defense attorneys (particularly GTMO defense attorneys) are “morally questionable hired guns” or “traitors.” The authors of this post are correct: these attorneys are well-intentioned human rights lawyers who work tirelessly to uphold the Constitution.  On the walls of our office, a group of Center alumni have hung a quote which reads:

“The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough.  It was however one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.” -John Adams

Like the GTMO lawyers, Adams took part in defending individuals who were politically unpopular, yet he understood that his role in their defense assisted in upholding the Constitution of the United States.  Yes, GTMO attorneys are working to protect the interests of their clients, but they are also working to protect the interests of our country, a crucial detail which is rarely recognized in depictions of defense attorneys in popular culture.

Read “What Zero Dark Thirty gets wrong about Guantanamo lawyers” here.

Kelly Ann Taddonio, Research Fellow

Center for Policy & Research