DOJ

Gitmo lawyers; Conflicts of interest at the Justice Department

Our Department of Justice is looking more and more like the Guantanamo Bay Bar Association each day.

The editors at the Washington Times wrote this morning:

A deal is in the works to send Yemeni detainees from Guantanamo Bay, Cuba, to Saudi Arabia, but don’t ask the attorney general about it.

Executive Order 13493 on Jan. 22 appointed Attorney General Eric H. Holder Jr. co-chairman of the Special Task Force on Detainee Disposition, the interagency group charged with determining the status of persons captured or apprehended in connection with armed conflicts and counterterrorism operations. But according to Justice Department regulations, Mr. Holder is required to recuse himself from certain detainee matters because his law firm represented the detainees.

The Legal Times reported in March that there are more than a dozen such conflicted lawyers at the department. This includes five of the top 10 officials in the department, including the attorney general; Deputy Attorney General David W. Ogden; Associate Attorney General Thomas J. Perrelli; Assistant Attorney General for the Civil Division Tony West; and Lanny A. Breuer, chief of the Criminal Division, who, like Mr. Holder, hails from the firm Covington & Burling LLP.

Justice Department lawyers who worked at firms representing detainees have been advised to refrain from handling related matters even if the lawyers were uninvolved in their firm’s work related to the U.S. military detention facility at Guantanamo. This is a stricter standard than that required by the American Bar Association’s Rules for Professional Conduct, which would only require recusal in cases in which the attorney was “personally and substantially involved” in the case. The natural conflict of interest is that lawyers whose firms do pro bono work on behalf of detainees should not also make detainee policy.

Covington & Burling represented 17 detainees from Yemen. There are about 200 Yemenis still at Guantanamo [sic – about 100 of the remaining 229 detainees are from Yemen]. One reason for the large number of Yemenis is that Yemen does not have facilities to hold them. It’s also relevant that previous released detainees have used Yemen as a gateway to return to terrorism. This is why we want to send them to Saudi Arabia, although Yemen’s government denies the deal is done.

Covington’s detainee work has caused the firm some embarrassment. The firm’s David H. Remes made headlines in 2008 by removing his pants at a news conference in Yemen to protest what he said were inappropriate body searches. He left the firm shortly thereafter. Former Covington attorney Marc D. Falkoff represented Kuwait-born Abdullah Saleh al-Ajmi and included poetry written by the inmate in an anthology he co-edited in 2007: “Poems From Guantanamo: The Detainees Speak.”

Mr. Falkoff described the poets as “gentle, thoughtful young men” whose verse was free of hatred. As Debra Burlingame reported in the Wall Street Journal, Abdullah was released in 2005 and next heard from in a martyrdom video posted on an al-Qaeda Web site celebrating his suicide truck bombing of an Iraqi Army compound in Mosul. This gentle poet killed 13 soldiers and wounded 42 others in the attack. … READ THE REST.

Here is then Covington lawyer David Remes advocating on behalf of Yemeni detainees (click on image to read the story).

Covington & Burling lawyer David Remes

Click on the image below to see former Covington lawyer Falkoff special pleading for al-Ajmi back in 2005 at a “teach in,” at Seton Hall University. (The video is a little less than 7 minutes long and the full poem he reads is by al-Ajmi.)

Mark Falkoff video

Here is al-Ajmi blowing himself and 13 of his fellow Muslims up, in Iraq two years later, using a 10,000 lb truck bomb:

alajmi006.jpg

Debra Burlingame wrote about al-Ajmi here.

Notes:

Assistant Attorney General for the Civil Division Tony West represented “American Taliban” John Walker Lindh.

Deputy Attorney General David W. Ogden’s former lawfirm, Wilmer Cutler Pickering Hale and Dorr LLP, was involved in detainee litigation and argued on behalf of detainees in Boumediene v Bush before the Supreme Court. Incidentally, former DAG Jamie Gorelick of ‘the Wall’ fame is currently a partner there.

9/11 family member at DOJ meet asked ‘How many people here are in favor of closing Gitmo?’ Two hands went up

WJHG TV, an NBC affiliate in Panama City, Florida reports:

Arias’ brother, Adam, was killed when the south tower of the World Trade Center collapsed during the September 11th terrorist attacks. Arias was randomly selected to go to Guantanamo Bay this January and witness a competency hearing for accused terrorist Ramzi Binalshibh.

Arias says, “When I was in Gitmo, the defendants looked tanned and relaxed and quite cocky. They proclaimed how proud they were that they had killed almost 3,000 Americans.”

Arias is back from two weeks of meetings with the Military Commissions Prosecution Team in Orlando and the Department of Justice Task Force in the nation’s capital. Arias believes that President Obama’s plan to close Guantanamo Bay is misguided. He says he met many people who agree with him: “An elderly fireman, who retired, who lost his son on 9/11, looked around the table and said, ‘How many people here are in favor of closing Gitmo?’ Two hands went up. ‘How many people here are in favor of keeping Gitmo and the tribunals open?’ Forty hands went up. That man said, ‘Bring that to the president, tell him what 9/11 families really want.'”

He says that under the President’s current orders, a multi-agency task force will review each case in the detention center, with guidance to put as many in federal court as possible. But, he claims this provides terrorists with more rights than they deserve, and he cautions that prosecuting attorneys would have to divulge sensitive information in court just to get a conviction.

“We would actually betray our allies in the field that way. So, that would give insight into the ways, means, methods in which we collect information to thwart terrorist attacks. So, we’re putting human lives in danger by doing that.”

Arias says a justice system that punishes war criminals is vital to winning the War on Terror. He offers an argument against those who say Gitmo can be used against us: “Prior to 9/11, there was no such thing as Guantanamo Bay Detention Center. Al-Qaeda needed no recruitment tool other than hatred to kill 3,000 Americans on 9/11.”

For those family members of the victims of terrorism unable to attend the Department of Justice’s meetings, but still interested in expressing views, the DOJ “welcome[s] written submissions.” Please send your written comments via email (nsd.ovt@usdoj.gov) or fax (202-514-4275) to the Office of Justice for Victims of Overseas Terrorism (OVT) no later than June 26, 2009. Click here for a few questions to consider when writing them.

A response to the Department of Justice ‘Fact Sheet’ on Prosecuting and Detaining Terror Suspects in the U.S. Criminal Justice System

In Washington today and tomorrow, the DOJ’s Office of Justice for Victims of Overseas Terrorism (OVT) is briefing American family members of those murdered by terrorists, as well as those injured during terrorist attacks. The stated purpose of the briefing is to:

…[offer] those interested the opportunity to meet task force members, hear an overview of task force work, and express views about the policy questions the Detention Policy Task Force is studying. Please click on the link for the Detention Policy Task Force to see some of the questions that the task force is considering. [password required] … For those unable to attend the meetings, but still interested in expressing views, we welcome written submissions. Please send your written comments via email (nsd.ovt@usdoj.gov) or fax (202-514-4275) to OVT by June 19, 2009.

In advance of the briefings, the Department of Justice issued a press release on June 9, 2009 that is posted below (in black). A response from 9/11 Families for a Safe & Strong America is interjected in red and blue.

Department of Justice Press Release Tuesday, June 9, 2009
Fact Sheet: Prosecuting and Detaining Terror Suspects in the U.S. Criminal Justice System

I. Terror Prosecutions in the Southern District of New York
Since the 1990s, the U.S. Attorney’s Office for the Southern District of New York (SDNY) has investigated and successfully prosecuted a wide range of international and domestic terrorism cases — including the bombings of the World Trade Center and U.S. Embassies in East Africa in the 1990s.
FACT: From 1993, starting with the first World Trade Center bombing, to the attack on the USS Cole in 2000, Al Qaeda killed 265 people and injured another 5,496. In the same period, a total of 29 people were convicted in major terrorism trials, only a handful of which were high-level operatives. Many of those responsible for the deaths of Americans and others were never apprehended. Those who were tried received platinum due process. And yet, 9/11 occurred. 3,000 more deaths in one day. The criminal justice system is not designed to protect American citizens from future terrorist attacks by covert, militant wahhabi organizations operating in global networks, carrying out martyrdom operations, with assistance from foreign states (Sudan, Saudia Arabia, Syria, Iran, Somalia, former Iraqi regime) and like-minded terrorists organizations (Hamas, Hezbollah). These are not street criminals who plague individuals. These are committed jihadists who pose an existential threat to the United States. When captured, Al Qaeda members are dedicated to continuing jihad, whether through propaganda or physical assaults on their captors. They are proud of their crimes, and are not interested in American justice. They are interested in undermining American justice. They are war criminals. Criminal indictments issuing from U.S. federal grand juries in the 1990s did not stop Osama Bin Laden or make the world a safer place.

Major Historical Cases in SDNY:
1993 World Trade Center Bombing: After two trials, in 1993 and 1997, six defendants were convicted and sentenced principally to life in prison for detonating a truck bomb in the garage of the World Trade Center, killing six people and injuring hundreds more. One of the defendants convicted at the second trial was Ramzi Yousef, the mastermind of the attack.
1994-95 Manila Air Plot: Ramzi Yousef and two others were convicted in 1996 for plotting to plant bombs aboard a dozen U.S. commercial aircraft that were timed to go off as the planes were flying over the Pacific. The defendants were sentenced to substantial prison terms. Yousef concocted the plan with Khalid Sheikh Mohammed, who is currently detained at Guantanamo Bay and has been indicted in SDNY for the Manila Air conspiracy since 1996.
1995 “Blind Sheikh” Trial: Ten defendants associated with a mosque in Brooklyn, N.Y., were convicted of plotting to blow up the World Trade Center, United Nations headquarters, and various bridges, tunnels and landmarks in and around New York City. The lead defendant, Omar Abdel Rahman, also known as the “Blind Sheikh,” was sentenced to life in prison, while his co-defendants were sentenced to prison terms ranging between life and 25 years.
Bin Laden Indictment and Embassy Bombings Trial: Shortly after the August 1998 bombings of the U.S. Embassies in Kenya and Tanzania, SDNY indicted Usama Bin Laden and approximately 20 alleged al-Qaeda loyalists for conspiring to murder Americans worldwide. Many of the defendants were also charged for their roles in the attacks on the U.S. Embassies in East Africa, including three defendants who were convicted after a six-month trial in early 2001. Those three defendants, and a fourth al-Qaeda member who was tried with them, were all sentenced to life in prison.
FACT: The conspicuous absence, after nearly nine years, of any USS COLE prosecutions. The imminent trial of ABD AL-RAHIM AL-NASHIRI under the Military Commissions Act was suspended by President Obama.FACT: The total number of convictions in major terrorism cases in federal court, after hundreds of millions of dollars in litigation costs, from 1993 to 2001, was 29 people, most of whom held small roles in the larger conspiracies. In fact, some of those who participated in the bombings were never apprehended or tried. There was virtually no intelligence value to these prosecutions. Indeed, due to federal discovery rules, sensitive classified information deemed “material to the defense,”was ordered by the presiding judge to be handed over by prosecutors. In the Rahman “Blind Sheikh” case, a list of 200 un-indicted co-conspirators was given to the defense and in Osama Bin Laden’s hands within days. This told Al Qaeda who was known to U.S. law enforcement authorities, and who was not. See, former SDNY prosecutor Andrew C. McCarthy, “The Intelligence Mess: How the Courts Forced Me to Give Osama Bin Laden Sensitive Information,” Wall Street Journal, Sept. 20, 2006
FACT: The federal rules for handling classified evidence in criminal trials continues to be a problem for prosecutors. The Classified Information Procedures Act (CIPA) was written to prevent defendants in espionage cases from engaging in “graymail,” threatening to reveal classified evidence in open court in order to pressure the government to drop charges. Prosecutors were faced with the choice of “disclosing or dismissing.” The current problem involves terrorism defendants who use discovery rules to force the government to disclose classified information which can be conveyed to their confederates. Disclosure of classified evidence, e.g. sources, methods, names of infiltrators, strains relationships with foreign intelligences services who want their counterterrorism operations and cooperation with the U.S. to remain secret..

DOJ stalling release of 9/11 Commission ‘Wall’ documents

The Honorable Bill Shuster
United States House of Representatives
Pennsylvania-9th, Republican
204 Cannon HOB
Washington, DC 20515-3809
Phone: (202) 225-2431

Dear Representative Shuster:

On January 15, 2009, I inquired into the new release by the Legislative Archive of 9/11 Commission Report documents and learned of the existence of the Commission’s Staff Monograph about the Wall. My inquiry prompted the Legislative Archive to review the monograph for release. On April 22, 2009, the Legislative Archive verbally informed me that the monograph was releasable and I would “likely have a copy in [my] hands within two weeks.” Yet a memo to me dated April 23, 2009 from the Legislative Archive in part states, “[I]t was determined by the National Archives that the monograph requires official declassification review before it can be released. I will submit the 35-page document to the reviewing agency as a mandatory declassification review request in your name tomorrow.” [1]

A person who had reviewed the staff monograph subsequently stated to me, “While it contains only a brief passage that might be considered sensitive in nature, the mechanics of information sharing, expect the DOJ to heavily redact it.” They added, “When Jamie Gorelick hears the monograph’s release has been held up, she will be furious.” They were not the first with knowledge of the monograph to describe it in those terms, albeit no one has disclosed to me its actual classified contents.

Those events and statements, coupled with previously released government documents, indicates to me that contrary to the 9/11 Commission’s founding principles and Executive Order 12958, political considerations motivated the DOJ to order – 4 ½ years after the Commission ended its work – an official declassification review of the monograph and to delay the release of eight related memorandums for record (MFRs).

AG Holder stonewalling Rep. Wolf about Uighurs’ connections to terrorism (their free release in Virginia ‘soon’)

Andy McCarthy at the National Review Online points out that Congressman Frank Wolf (R-Va) took to the House floor last week. He is being stonewalled by AG Eric Holder from learning the terrorist training and associations of the 17 Uighurs currently being held at Guantanamo; the Obama administration plans to soon release them free and on welfare within a few miles of the Pentagon. Here is what Rep. Wolf said Friday:

Madam Speaker, it is my understanding that President Obama’s decision regarding the release into the United States of a number of Uyghur detainees held at Guantanamo Bay since 2002 could be imminent. The New York Times, ABC News and others news outlets have reported that the president will soon release these terrorists into the United States, and yet this Congress has yet to be briefed on this decision. This is unacceptable.

Let’s be clear: these terrorists would not be held in prisons but released into neighborhoods. They should not be released at all into the United States. Do Members realize who these people are? There have been published reports that the Uyghurs were members of the Eastern Turkistan Islamic Movement, a designated terrorist organization affiliated with Al Qaeda.