February 10, 2009
DOJ Maintains State Secrets Position from Bush Administration
In the first major national security case of the Obama administration, lawyers representing the government took the exact same position as the Bush administration. Government attorneys asked a judge to throw out a torture case, citing the need to preserve state secrets. Some human rights activists now say they feel betrayed by an administration that had promised greater openness and transparency.
Five former terrorism detainees brought the lawsuit, Mohammed et al. vs. Jeppesen DataPlan Inc. The men accuse Jeppesen, a Boeing subsidiary, of providing logistical support to the CIA for "torture flights" to overseas prisons.
Bush administration lawyers had argued there was no way to try this case without revealing state secrets. Activist groups and newspaper editorial pages hammered the Justice Department for taking that position, but a trial judge agreed and threw the case out.
As the government prepared to argue the case again before three judges at an appeals court Monday, observers wondered whether the Justice Department would change course now that there is a new president and a new attorney general. The government did not change course.
ACLU attorney Ben Wizner, who represents the detainees, said in a phone interview after arguments, "The Obama administration, which came to office on a promise of greater transparency — on a promise of ending these practices — stood up and made exactly the same arguments that were made by Bush lawyers to throw out torture victims' lawsuits. And that's a profound disappointment."
Read full article here. [Brooks Holland]
February 06, 2009
Seventh Circuit Affirms Iraqi Spy's Conviction
The 7th Circuit refused to overturn the conviction of a former spy for Saddam Hussein who came to the United States as an unwitting "sleeper agent" for the Iraqi Intelligence Service and obtained U.S. citizenship by lying on his application.
Sami Latchin actively served in the IIS from 1979 to 1993, and was selected as one of the sleeper agents in Hussein's plan to plant spies around the world to gain positions of influence, gather intelligence and influence policy in favor of Hussein's Ba'athist regime.
"All spy programs, of course, operate on deception - the spies pretend to be people they aren't," Judge Evans wrote. "But Saddam's plan took it to a whole new level - not even the spies would know they were part of the program until they were activated many years down the road."
The only sleeper agent planted in the United States, Latchin insisted he went there to "retire." But the government produced evidence that Latchin made several trips to Eastern Europe to meet with "Ali," his handler, who gave him a code name and a cover story should he run into trouble. Ali also paid Latchin $24,000 a year for his services - an amount Latchin later explained as "retirement pay."
He settled in Chicago, where he worked as a counter agent at O'Hare International Airpot. In 1998, he successfully applied for naturalization.
"That may strike the reader as a shock," Evans wrote. "How could a spy for Saddam Hussein - whether past or present - acquire citizenship so easily? According to the government, only by lying."
Read full article here. [Brooks Holland]
January 30, 2009
Judge Rejects Obama's Request for Stay in Guantanamo Trial
From Law.com: "A military judge at Guantanamo on Thursday rejected a White House request to suspend a hearing for the alleged mastermind of the USS Cole bombing, creating an unexpected challenge for the administration as it reviews how America puts suspected terrorists on trial.
The judge, Army Col. James Pohl, said his decision was difficult but necessary to protect "the public interest in a speedy trial." The ruling came in the case against Abd al-Rahim al-Nashiri. The bombing of the Navy destroyer in 2000 in the harbor of Aden, Yemen, killed 17 U.S. sailors.
It seemed to take the Pentagon and White House by surprise.
"We just learned of the ruling ... and we are consulting with the Pentagon and the Department of Justice to explore our options in the case," said White Press secretary Robert Gibbs, adding that he doubted the decision would hamper the administration's ability to decide how to move forward from Guantanamo." Full Story from Law.com... [Michele Berry]
January 22, 2009
NPR: "Obama Orders Guantanamo Bay Prison Closure"
NPR.org: On Day 2 of his presidency, Barack Obama signed executive orders "designed to close Guantanamo Bay prison within a year, prohibit extreme interrogation practices and revisit military tribunals for suspected terrorists.
'Shutting the detention facility is intended to show that U.S. foreign policy is in metamorphosis. The message that we are sending around the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism' but will do so 'in a manner consistent with our values and our ideals," Obama said while signing the orders. Full story from NPR.org... [Michele Berry]
January 21, 2009
Obama's First Move as President
Even before his adorable dance moves with First Lady Michelle (video here), President Obama's first move came in the criminal law arena-- an order via Defense Secretary Robert Gates to military prosecutors in the Guantanamo war crimes tribunals to request a 120 day stay in all pending cases. The stay will allow the Obama administration a chance to review all the pending cases. His order came just hours after his oath of office. Thus far proceedings are frozen in the case against Canadian Omar Khadr, who was captured at age 15 and is accused of murdering a U.S. soldier with a grenade during a firefight in Afghanistan. A stay was also granted in the death penalty case against five prisoners accused of plotting the 9/11 attacks. More from CNN.com... [Michele Berry]
LawProfs Comment on Guantanamo
Seton Hall LawProf Mark Denbeaux, Iowa LawProf Tung Yin, and UC Davis LawProf Diane Amann comment on the dilemma the Obama administration faces as it sifts through the Guantanamo cases. A "charge or release" policy seems to be the consensus; there is also agreement that some prosecutions may not be possible due to evidence tainted by torture techniques. But Yin points out that it may be a bad move to release high profile detainees such as Khaled Shaikh Mohammed, who admitted to being the mastermind of the 911 attacks but who also was subjected to waterboarding and other harsh interrogation tactics. "In a regular criminal case we would say the government violated the constitutional rules so the remedy is to suppress the evidence. The government can't make its case without the suppressed evidence so the defendant has to be let go...I think there is going to be some discomfort level with simply releasing Khaled Shaikh Mohammed." Yin says the prospect of releasing so-called high value terror suspects may force the new administration to create a system of preventive incapacitation similar to Bush's enemy combatant detention.
But Amann warns that "it would be a mistake to continue to rely on a version of the Bush enemy combatant detention regime." "Are we going to depart from 200 years of legal tradition prohibiting this kind of detention [without charge] and craft an entirely new program" for the probable handful of detainees who pose a threat?
Denbeaux points out that releasing terror suspects could advance US intelligence. "Agents could be tasked to watch them, trace their movements overseas, and tap their phones. If former detainees seek to contact Al Qaeda, their movements and contacts could provide fresh intelligence on the terror group. To me, released detainees are a window into the world that is out there, and if we are not looking through that window it is a waste." More from the Christian Science Monitor... [Michele Berry]
January 15, 2009
Intelligence Court Affirms Wiretapping Powers
A federal intelligence court, in a rare public opinion, issued a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans’ private communications may be involved.
The court decision, made in August 2008 by the Foreign Intelligence Surveillance Court of Review, came in an unclassified, redacted form.
The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans.
The Aug. 22 appeals court decision upheld a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications.
“The Department of Justice is pleased with this important ruling by the Foreign Intelligence Surveillance Court of Review, which upholds the constitutionality of foreign intelligence surveillance conducted under the Protect America Act of 2007,” a Justice Department statement said.
The court ruling grew out of a previously undisclosed challenge from a telecommunications provider, which questioned the constitutional authority of the executive branch in ordering it to capture and turn over international communications without court approval.
The telecommunications company, which was not identified, refused to comply and instead challenged its legal basis under the 2007 law.
The FISA court rejected the telecommunication companies’ challenge. It found that the Protect America Act did not violate the Constitution because the Fourth Amendment, which prohibits unreasonable searches and seizures, contained an exception for the collection of foreign intelligence information.
The opinion did not directly rule on the legality of the once-secret operation authorized by President Bush between October 2001 and early 2007, which allowed the National Security Agency to eavesdrop on the international communications of Americans suspected of ties to terrorists. The disclosure of the program’s existence in The New York Times in December 2005 set off a national debate on wiretapping, privacy and the limits of presidential power. Critics charged that Mr. Bush had violated a 1978 law requiring that the government obtain a court order to listen in on Americans’ communications.
Read full article here. [Brooks Holland]
December 09, 2008
Prosecutors Seek to Rescind Cooperation Letter for Millennium Bomber
Federal prosecutors are seeking yet another sentencing for would-be millennium bomber Ahmed Ressam — this time without credit for helping to convict a fellow terrorist.
Ressam was sentenced for the second time last week to 22 years in prison for plotting to bomb Los Angeles International Airport on the eve of the millennium. Prosecutors said at the time that the sentence wasn't long enough, and the guideline range is 65 years to life.
In a motion made public today, the U.S. Attorney's Office asked to withdraw a document prosecutors filed several years ago acknowledging that Ressam cooperated. They say that motion, which provided part of the basis for the lenient sentence, is no longer valid because Ressam told the judge last week he wanted to take back every statement he made to the government, including his testimony against a coconspirator.
Ressam was arrested Dec. 14, 1999, in Port Angeles after coming off the ferry from Victoria, B.C. Inspectors found electronic timers, powders and liquids in the trunk of his rental car that turned out to be the makings of a powerful bomb.
Ressam, 40, was convicted of planning to set off a powerful suitcase bomb at the Los Angeles airport during the millennium holiday. Prosecutors said Ressam had been recruited by a radical Islamic cell in Montreal and had trained in Osama bin Laden-sponsored terrorism camps in Afghanistan.
After his conviction in April 2001, Ressam cooperated with federal authorities in hopes of winning a shorter prison sentence. He became a key source of information on the operation of al-Qaida in Western Europe and North America after the Sept. 11, 2001, attacks, providing information that led to the prosecution of some of the terrorist organization's top leaders.
Ressam stopped cooperating in 2003, and a court-appointed psychiatrist found that he was suffering from a mental breakdown after years in solitary confinement and repeated interrogations.
Read full article here. [Brooks Holland]
Interrogation Upheld in Country Where Right to Counsel Unavailable
The U.S. Court of Appeals for the Second Circuit Nov. 24 upheld the admission of statements elicited overseas by U.S. agents from suspects in the custody of a country that does not provide a right to counsel during interrogations. “[I]nsofar as Miranda might apply to interrogations conducted overseas, that decision is satisfied when a U.S. agent informs a foreign detainee of his rights under the U.S. Constitution when questioned overseas,” the court said (In re Terrorist Bombings of U.S. Embassies (Fifth Amendment Challenges), 2d Cir., No. 01-1535-cr(L), 11/24/08).
No Right to Appointed Counsel.
The defendants in this case were convicted of participating in al Qaeda's bombings of U.S. embassies in East Africa. The proof at trial included evidence of statements they made while in the custody of Kenyan officials during interrogations by agents of the U.S. Joint Terrorism Task Force.
The agents had concluded that appointed counsel was not available to indigent suspects in Kenya, so the agents gave the defendants versions of the Miranda warnings that advised them that they would have a right to counsel during any questioning in the United States. They also presented the defendants with the Advice of Rights form often used by U.S. officials conducting interrogations overseas. With respect to the presence and appointment of counsel, the AOR form states:
In the United States, you would have the right to talk to a lawyer to get advice before we ask you any questions and you could have a lawyer with you during questioning. In the United States, if you could not afford a lawyer, one would be appointed for you, if you wish, before any questioning.
Because we are not in the United States, we cannot ensure that you will have a lawyer appointed for you before any questioning.
If you decide to speak with us now, without a lawyer present, you will still have the right to stop answering questions at any time.
A federal district court later ruled that the rights advisories initially given to the defendants were misleading in that they may have given the impression that the right to counsel attached only in the United States and that the defendants did not have the right to consult with counsel they retained privately. Accordingly, the court suppressed statements elicited from the defendants up until they were later given rights advisories that cleared up any possible misunderstanding regarding their attachment of the right to counsel. The defendants, however, appealed the district court's decision to allow the admission of later statements elicited from them in Kenya.
AOR Was Good Enough.
In an opinion by Judge José A. Cabranes, the Second Circuit observed that the citizenship status of suspects and the location of interrogations are not relevant to the applicability of Fifth Amendment protections because that provision regulates the admissibility in U.S. courts, not the way interrogations are to be conducted. “Accordingly, we hold that foreign nationals interrogated overseas but tried in the civilian courts of the United States are protected by the Fifth Amendment's self-incrimination clause,” the court said.
Read full article here. [Brooks Holland]
December 03, 2008
New Charge for Bernard Kerik
"Nope, it's all in my book," Kerik said when asked in 2002 if there was "anything embarrassing that he wouldn't want the public to know about." In "The Lost Son," Kerik admitted fathering a daughter while he was a soldier in Korea and said his mother, a prostitute, was murdered.
In a beefed-up indictment issued Tuesday, Manhattan federal prosecutors said Kerik should have owned up to his ties to a mob-linked contractor as well as his failure to pay taxes for a nanny he employed.
Kerik attorney Barry Berke said Kerik's statements were not false since the White House query was vague.
The new indictment, which replaces a previous one, still charges that Kerik got free renovations from a would-be city contractor and filed false income-tax returns.
Kerik was forced to withdraw his nomination for homeland security czar shortly after his name was floated.
Article available here. [Brooks Holland]
November 24, 2008
2nd Circuit Upholds Warrantless Extraterritorial Searches of U.S. Citizens
A federal appeals court in Manhattan upheld the convictions on Monday of three Al Qaeda operatives in a ruling that bolsters the government’s power to investigate terrorism by holding that a key Constitutional protection afforded to Americans does not apply overseas.
The unanimous decision by a three-judge panel of the United States Court of Appeals for the Second Circuit holds for the first time that government agents may obtain admissible evidence against United States citizens through warrantless searches abroad.
The searches must still be reasonable, as the Constitution requires, Judge José A. Cabranes wrote, adding that the government had met that standard in its search of the home and monitoring of the telephone of one defendant, Wadih El-Hage, a close aide to Osama bin Laden, who was a naturalized American citizen living in Nairobi, Kenya.
“The Fourth Amendment’s requirement of reasonableness — but not the Warrant Clause — applies to extraterritorial searches and seizures of U.S. citizens,” the judge wrote.
Mr. El-Hage and two other defendants had appealed their convictions for participating in a terrorism conspiracy, led by Mr. bin Laden, to kill Americans around the world. The conspiracy included the 1998 bombings of two American embassies, in Nairobi, Kenya, and Dar es Salaam, Tanzania, which killed 224 people and wounded thousands. They were convicted in Manhattan federal court in 2001 in the last major terrorism trial in the United States before the Sept. 11 attacks.
The two other defendants whose convictions were upheld were Mohamed Rashed Daoud al-’Owhali and Mohammed Saddiq Odeh. A fourth defendant, Khalfan Khamis Mohamed, did not appeal his conviction. The men were convicted in a federal trial in Manhattan in early 2001. All four men are serving life sentences in the so-called Super Max prison in Florence, Colo.
Read full article here. [Brooks Holland]
November 13, 2008
New report details shattered lives of released Guantanamo detainees
Detainees released from U.S. detention in Guantanamo Bay, Cuba and Afghanistan live shattered lives as a result of U.S. policies in the war on terror, according to a new report by human rights experts at the University of California, Berkeley. The report, "Guantanamo and Its Aftermath: U.S. Detention and Interrogation Practices and Their Impact on Detainees," based on a two-year study, reveals in graphic detail the cumulative effect of Bush Administration policies on the lives of 62 released detainees. Many of the prisoners were sold into captivity and subjected to brutal treatment in U.S. prison camps in Afghanistan. Once in Guantanamo, prisoners were denied access to civilian courts to challenge the legality of their detention. Almost two-thirds of the former detainees interviewed reported having psychological problems since leaving Guantanamo.
"The nightmare of Guantanamo did not end with the detainees' release. Men never convicted of crimes or given the opportunity to clear their names are suffering from a lasting 'Guantanamo stigma,' and are unable to find work,'" said Laurel Fletcher, Director of the International Human Rights Law Clinic at UC Berkeley School of Law and co-author of the report.
Researchers conducted interviews with released detainees in nine countries. The comprehensive study also includes in-depth interviews with key government officials, military experts, former guards, interrogators and other camp personnel. [Mark Godsey]
November 11, 2008
Obama legal advisers draft plans for Guantánamo
Hopes that Obama would move swiftly to dismantle the detention facility rose after the Associated Press reported today that his legal advisers were drafting plans to ship scores of inmates from the offshore prison to the mainland to stand trial in US courts.
Under plans drawn up by Obama's advisers, between 60 and 80 detainees would be put on trial in the US in a mix of civilian criminal courts and the court martial system. About 17 high-level detainees, such as Khalid Sheikh Mohammed, would also go on trial but before a new version of a national security court - not the Bush administration's much criticised military tribunals.
The American Civil Liberties Union immediately called on Obama to ban torture and rendition as well as close down Guantanámo.
"There is no room for patience or delay in these areas. We have to hold president-elect Obama's feet to the fire," Anthony Romero, the union's executive director, said in a statement.
But White House press secretary Dana Perino said today: "When you pick up people off the battlefield that have a terrorist background, it's not just so easy to let them go. It's not so easy just to say that you're going to close Guantanámo Bay."
The reproach from the White House saw the Obama camp moving to play down speculation about re-vising the laws dealing with Guantanamo.
"There is absolutely no truth to reports that a decision has been made about how and where to try the detainees, and there is no process in place to make that decision until his national security and legal teams are assembled." [Mark Godsey]
October 21, 2008
U.S. Drops War Crimes Charges against Guantanamo Detainees
The Pentagon official in charge of prosecutions at Guantanamo on Tuesday dismissed war-charges against five detainees, the latest setback to the government’s military commission system.
The official, Susan J. Crawford, has broad power over the military commission tribunals, including the power to dismiss charges, but she does not have to provide public explanations for her decisions and did not on Tuesday.
But a statement from her office said the charges against the five were dismissed without prejudice, which means “the government can raise the charges again at a later time.”
After the decision was announced, Col. Lawrence J. Morris, the chief military prosecutor, said that supervising lawyers in his office had asked Ms. Crawford to withdraw the charges. He said all five would be resubmitted after a review of their files, which had been handled by a prosecutor who left the office after questioning the judicial fairness at Guantanamo.
The best known of the five detainees is Binyam Mohammed, a former British resident who claimed harsh torture methods had been used against him. Government officials have accused him of taking part in a plan to attack the United States with a radioactive dirty bomb.
The Bush administration has long said that it would like to close the detention camp, where 255 detainees are being held on the naval station at Guantanamo Bay, Cuba. But officials have said in recent days that no action would likely be taken before the end of Mr. Bush’s term in January. One reason they cited was uncertainty about how legal cases against the remaining detainees would be handled inside the United States.
Ms. Crawford also dismissed without prejudice charges that had been presented to her against four other detainees: Noor Uthman Muhammed, Sufyiam Barhoumi, Ghassan Abdullah al Sharbi, and Jabran Said Bin al Qahtani.
All five cases had been handled by Lt. Col. Darrel Vandeveld, a military prosecutor who stepped down from his position in September, saying publicly that there were systemic problems in the prosecution that raised ethical issues. Colonel Vandeveld, an Army reserve officer and the latest person to quit the prosecutor’s office in Guantanamo, said the prosecutors did not fully comply with rules that require that they turn over any information that might help the defense.
Colonel Morris has denied that Colonel Vandeveld’s departure was related to a dispute about complying with legal rules for the proper handling of cases.
“I don’t want to unduly attribute responsibility to him,” Colonel Morris said of reviewing the files handled by Colonel Vandeveld. “We have found that there is more work to be done on all these cases.” He said he had recently appointed new prosecutors to each of the cases.
But detainees’ lawyers cast the decision to withdraw the charges as the latest in a series of difficulties government lawyers have had in pressing cases against Guantanamo detainees.
“My impression is it is just a mess, and the floor is collapsing underneath them,” said Clare Algar, the executive director of Reprieve, an international legal organization that represent many detainees including Binyam Mohammed.
REad full story here. [Brooks Holland]
October 08, 2008
Md. Police Put Activists' Names On Terror Lists
The Maryland State Police classified 53 nonviolent activists as terrorists and entered their names and personal information into state and federal databases that track terrorism suspects, the state police chief acknowledged yesterday.
Police Superintendent Terrence B. Sheridan revealed at a legislative hearing that the surveillance operation, which targeted opponents of the death penalty and the Iraq war, was far more extensive than was known when its existence was disclosed in July.
The department started sending letters of notification Saturday to the activists, inviting them to review their files before they are purged from the databases, Sheridan said.
"The names don't belong in there," he told the Senate Judicial Proceedings Committee. "It's as simple as that."
The surveillance took place over 14 months in 2005 and 2006, under the administration of former governor Robert L. Ehrlich Jr. (R). The former state police superintendent who authorized the operation, Thomas E. Hutchins, defended the program in testimony yesterday. Hutchins said the program was a bulwark against potential violence and called the activists "fringe people."
Sheridan said protest groups were also entered as terrorist organizations in the databases, but his staff has not identified which ones.
Stunned senators pressed Sheridan to apologize to the activists for the spying, assailed in an independent review last week as "overreaching" by law enforcement officials who were oblivious to their violation of the activists' rights of free expression and association. The letter, obtained by The Washington Post, does not apologize but admits that the state police have "no evidence whatsoever of any involvement in violent crime" by those classified as terrorists. [Mark Godsey]
October 03, 2008
Second Circuit Overturns Terrorism Convictions
Finding that a Yemeni cleric and his assistant had been deprived of a fair trial because of errors by the presiding judge, a federal appeals panel in New York on Thursday overturned their convictions in a prominent terrorism case once hailed by the Bush administration as a significant blow to Al Qaeda.
The appeals court judges found that the defendants, Sheik Mohammed Ali Hassan al-Moayad and his aide, Mohammed Mohsen Yahya Zayed, did not receive a fair trial because the trial judge, Sterling Johnson Jr., allowed the jury to hear inflammatory testimony and other evidence that prejudiced the defendants’ case.
The appeals panel sent the case back to the lower court, Federal District Court in Brooklyn, but in a highly unusual step, directed that it be assigned to a different judge.
Judge Johnson presided over the five-week trial in 2005. Both defendants were convicted of charges including conspiracy to support Al Qaeda and Hamas, and were sentenced to long prison terms.
Even before the trial, the case received wide attention when the government’s chief witness, a Yemeni informer, set himself on fire outside the White House. And in 2003, when John Ashcroft, then the attorney general, announced the charges against Sheik Moayad, he said the sheik had admitted to having given Osama bin Laden $20 million before the Sept. 11 terror attacks.
But in overturning the verdict, the three-judge panel of the United States Court of Appeals for the Second Circuit, in Manhattan, ruled that Judge Johnson erred in allowing the jury to hear evidence like the graphic testimony of a survivor of a fatal 2002 bus bombing in Tel Aviv, in which the defendants had not been implicated. Prosecutors had said the testimony was necessary to establish that the defendants knew that Hamas, which claimed responsibility for the bombing, engaged in terrorist activity, a point the defendants did not dispute.
Judge Barrington D. Parker Jr., writing for the appellate panel, said that the bombing, which killed six people, “was almost entirely unrelated” to the charges.
He also wrote that Judge Johnson should not have allowed testimony from another witness, Yahya Goba, who described spending time at a Qaeda training camp in Afghanistan that Mr. bin Laden visited.
Read full article here. [Brooks Holland]
September 21, 2008
Anxiety-detecting machines could spot terrorists
Signs of a terrorist? Or simply a passenger nervous about a cross-country flight?
It may seem Orwellian, but on Thursday, the Homeland Security Department showed off an early version of physiological screeners that could spot terrorists. The department's research division is years from using the machines in an airport or an office building — if they even work at all. But officials believe the idea could transform security by doing a bio scan to spot dangerous people.
Critics doubt such a system can work. The idea, they say, subjects innocent travelers to the intrusion of a medical exam.
The futuristic machinery works on the same theory as a polygraph, looking for sharp swings in body temperature, pulse and breathing that signal the kind of anxiety exuded by a would-be terrorist or criminal. Unlike a lie-detector test that wires subjects to sensors as they answer questions, the "Future Attribute Screening Technology" (FAST) scans people as they walk by a set of cameras. [Mark Godsey]
September 09, 2008
Mixed Verdict in London Terror Trial
But the jury failed to reach verdicts on the more serious charge of a conspiracy to have suicide bombers detonate soft-drink bottles filled with liquid explosives aboard seven airliners headed for the United States and Canada.
The failure to obtain convictions on the plane-bombing charge was a blow to counterterrorism officials in London and Washington, who had described the scheme as potentially the most devastating act of terrorism since the Sept. 11 attacks seven years ago this week. British and American experts had said that the plot had all the signs of an operation by Al Qaeda, and that it was conceived and organized in Pakistan.
The arrest in August 2006 of two dozen suspects, including the eight put on trial, set off a worldwide alarm in the airline industry and led to a tightening of airport security, including time-consuming restrictions on passengers carrying liquids and creams in their carry-on luggage that remain in force at most airports around the globe.
But the case was hampered from the beginning, prosecutors said, by an investigation that was cut short, by the conflicting demands of intelligence agencies, and by problems with introducing evidence in the courtroom. To protect sources and methods, the prosecution was unable to introduce material from British or foreign intelligence agencies. In addition, Britain does not allow information in court that has been gathered from domestic wiretaps.
The arrest in Pakistan of Rashid Rauf, a Briton of Pakistani descent who American, British and Pakistani officials said was a liaison to Al Qaeda, set off a series of events that led the British police to roll up the London-based cell far earlier than they had intended. The haste in making sweeping arrests made it hard for prosecutors to persuade the jury that the bomb plot had reached the stage at which an attack on airliners was imminent.
Partly as a result, prosecutors never convinced the jury that the suspects were prepared to strike immediately, or even that they had chosen planes as their targets. Nor did they convict a man whom they had accused of having links to Al Qaeda in Pakistan.
Britain’s Crown Prosecution Service said it might decide to call for a retrial of the case if it decides it might win convictions on the most serious charges. A decision on that is expected within weeks. In addition, a number of other suspects will face trial related to the plot.
Read full article here. [Brooks Holland]
August 12, 2008
NYC Plans Extensive Surveillance of All Vehicles Entering Manhattan
The Police Department is working on a plan to track every vehicle that enters Manhattan to strengthen the city’s guard against a potential terror attack, the department’s chief spokesman said.
The proposal — called Operation Sentinel — relies on integrating layers of technologies, some that are still being perfected. It calls for photographing, and scanning the license plates of, cars and trucks at all bridges and tunnels and using sensors to detect the presence of radioactivity.
Data on each vehicle — its time-stamped image, license plate imprint and radiological signature — would be sent to a command center in Lower Manhattan, where it would be indexed and stored for at least a month as part of a broad security plan that emphasizes protecting the city’s financial district, the spokesman, Paul J. Browne, said. If it were not linked to a suspicious vehicle or a law enforcement investigation, it would be eliminated, he said.
“Our main objective would be to, through intelligence, find out about a plot before it ever got to a stage where a nuclear device or a dirty bomb was coming our way,” Mr. Browne said. “This provides for our defense after a plot has already been launched and a device is on its way.”
The proposal is one element of a 36-page plan for security, mainly focused on the site of ground zero, that Police Commissioner Raymond W. Kelly and his counterterrorism bureau commanders have shared with the director of the Port Authority of New York and New Jersey.
For months, Mr. Kelly and his command staff have been urging the creation of a London-style surveillance system for the financial district that relies on license plate readers, movable roadblocks and 3,000 public and private security cameras below Canal Street, all linked to a coordination center at 55 Broadway. Known as the Lower Manhattan Security Initiative, the center is to open in September.
At the same time, a federal Securing the Cities program is going forward: The police are creating links with law enforcement agencies within a 50-mile radius around the city. That plan includes outfitting officers with radiation detectors to stop a nuclear or radiological threat as far from the target as possible.
Operation Sentinel would combine strategies from the security initiative and Securing the Cities and use them at choke points into Manhattan.
Mr. Browne could not say when the program would be completed, though the Lower Manhattan initiative is expected to be in place by 2010. “This is just a planning document,” he said of the proposal. “It’s a vision of how it will work if all the components come together.”
He said he could not predict what the city’s law enforcement leaders would do after the Bloomberg administration leaves at the end of 2009. But he said that Mr. Kelly was concerned that a more robust security system be in place before the World Trade Center area opens for business again.
“The importance of protecting the nation’s financial center will remain,” Mr. Browne said. “And the ability to protect an urban center from a dirty bomb or a nuclear device will also remain.”
Since early 2007, the police have been using technology to read license plates and to check the information against databases, including one for stolen cars. Similarly, they are using closed-circuit TV and radiation-detection equipment in various counterterrorism operations.
Read full article here. [Brooks Holland]
Salim Hamdan: Score One For The Jury System But The Rule Of Law Still Needs A Big Comeback
[From Ian Weinstein]The case of Salim Hamdan has been on my mind all week. I share the wonder at the jury’s rejection of the more serious conspiracy charge and its imposition of a rather modest sentence but I don’t want to romanticize the Hamdan jury or result. I think history will come to regard this case as emblematic of our era's signal failure of law. This military jury, however, gave the government a nice shove. Their final and unreviewable judgment rejecting some of the charges reflects the real power vested in American jurors. Although the mixed verdict introduced a note of ambiguity, the result is still a testament to the institution of the jury and to these jurors’ courage and clear sightedness.
Of course the shove was not as hard as it would have been if the Government actually felt itself bound to release Mr. Hamdan soon, as the judgment appears to require. They, however, prefer their backup plan of holding him as an enemy combatant to obeying the rule of law. But I still think the jury verdict is important and interesting, as one may more fully appreciate by considering these basic facts of modern American criminal practice:
First of all, everyone is guilty of something. In the era of overcriminalization, criminal law casts a very wide net. Bill Stuntz taught us this.
Given the breadth of our substantive criminal law and our very broad rules of accomplice and co-conspirator liability, a reasonably talented prosecutor should be able to find some charge on which a given person can be convicted. If the person happens to work in a regulated industry or hold a professional license of some sort, it is like shooting fish in a barrel. But if those circumstances don’t present, you can always start an investigation and see if the subject will become reactive - something useful usually comes out of that. [Mark Godsey]