Yemen

News and Views 1/05/10: 9/11 trials, Moussaoui, Gitmo, Thomson prison, NWA Fight 253, Yemen

Moussaoui Conviction Upheld; In the next case … the defendants will be smart enough not to plead guilty

The Fourth Circuit also reminds us that the trial judge initially struck the death penalty from the case because the government refused to give Moussaoui access to the al Qaeda prisoner witnesses. The Fourth Circuit reversed the judge at the time, but on the condition that it would be open to revisiting that conclusion if the government failed to provide Moussaoui with all the classified exculpatory information to which he was entitled. At that critical moment, Moussaoui decided to plead guilty. That is, we never found out what would have happened if Moussaoui had insisted on a trial at which he’d have access to all these witnesses and other national-defense information. The guilty-plea is deemed to have waived any claim by Moussaoui that he was denied the information to which he was entitled.

In the next case — like, say, KSM’s civilian trial — the defendants will be smart enough not to plead guilty. — They will insist on getting every piece of intelligence they’re entitled to. And the prosecutors will look at this ruling on Moussaoui’s appeal and realize they’d better give it to them or risk having the case thrown out. That’s what the law-enforcement approach buys you.

Thomson media alert for Wednesday

Editor — Watch Fox & Friends at 6:15 am Eastern time, Wednesday, January 6 for a segment on Thomson prison becoming Gitmo North. If you miss it, both Fox News and KeepAmericaSafe.com will have the video up soon afterward.

Taking Chances on Yemen

Given the ostensible ties between former Gitmo detainees and previous attacks and plots against the embassies in Yemen, it is natural to ask: What role are former Gitmo detainees playing in the current threats?

Moreover, both of these examples highlight the mistakes made during the Bush administration with respect to detainee transfers. Let us remember that the Bush administration itself wanted to close Gitmo and in an effort to do so agreed to a large number of suspect transfer decisions.

Yet, the Obama administration is apparently determined to make more suspect transfer decisions. Just this morning, John Brennan, the assistant to the president for homeland security and counter-terrorism, told CNN that the Obama administration is still committed to transferring Yemeni detainees to the cesspool that is Yemen. In December, for example, the Obama administration transferred Ayman Batarfi from Gitmo to Yemen. Batarfi is a known al Qaeda doctor who attended to wounded jihadists during the battle of Tora Bora, met with bin Laden at Tora Bora, and has admitted ties to al Qaeda’s anthrax program. Despite all of this and more, Batarfi, who has been a committed jihadist for decades, was deemed one of the most transfer-worthy detainees by the Obama administration.

Obama owes New York: Feds must pay every security penny for foolish terror trial

Obama and Holder have said they are out to show that the U.S. can grant full legal rights to worst-of-the-worst terrorists in civilian courts without jeopardizing the war on terror or public safety. Can they really do that? No way. No how.

The Police Department’s $200 million-a-year plan represents nothing so much as an effort to buy down an extremely high risk with heroic measures. But no amount of money will purchase freedom from all threat when danger is so substantial.

Stunningly, Holder did not consult, or forewarn, Police Commissioner Ray Kelly before ordering that Mohammed should be shipped to lower Manhattan. Since no formal action has yet been taken, Obama still has the chance to countermand the order. Failing such a step, the President must pay the full freight.

A new (or old?) halt to Gitmo-Yemen transfers (What halt?)

It’s also curious that the fact that no more detainees would be sent to Yemen was being touted to reporters as a finding or result of the post-Christmas bombing intelligence review, if indeed such repatriations were halted “quietly several weeks ago.”

On the other hand, in the pre-Christmas bombing environment, being candid about a decision not to send more prisoners to Yemen, would have 1) been offensive to the Yemeni government and 2) underscored the instability of the country to which we just sent six former Gitmo prisoners. So the earlier reticence was understandable even if the spin seems a bit whiplash inducing in retrospect.

UPDATE: On Sunday’s television talk shows, White House counterterrorism and homeland security adviser John Brennan said there will be future releases to Yemen, and he denied that the process had been halted, but he did not mention any plans to move any inmates there in the immediate future.

The career path from Gitmo to Yemen gets bigger

How effective has the Yemeni rehab program for Gitmo detainees been? The Times of London reports that it has done almost no good at all. At least a dozen repatriated Yemenis have rejoined al-Qaeda while the Obama administration plans to release almost a hundred more in the country … Keep in mind that these numbers reflect those released early from Gitmo. Those detainees were considered to be a lower risk than those remaining in the center. If the recidivism among the lower-risk detainees has been this bad, it means that either the ones we release now will be so hard-core that we can expect most or all of them to return to AQ or our screening process for release in the Bush administration was decidedly poor — or both.

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.