USA > History > 2010 > Terrorism (IV)

Matt Bors

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Idiot Box

Cagle

1 November 2010

F.B.I. Says Oregon Suspect

Planned ‘Grand’ Attack

November 27, 2010
The New York Times
By COLIN MINER,
LIZ ROBBINS
and ERIK ECKHOLM

PORTLAND, Ore. — A Somali-born teenager who thought he was detonating a car bomb at a packed Christmas tree-lighting ceremony downtown here was arrested by the authorities on Friday night after federal agents said that they had spent nearly six months setting up a sting operation.

The bomb, which was in a van parked off Pioneer Courthouse Square, was a fake — planted by F.B.I. agents as part of the elaborate sting — but “the threat was very real,” Arthur Balizan, the F.B.I.’s special agent in charge in Oregon, said in a statement released by the Department of Justice. An estimated 10,000 people were at the ceremony on Friday night, the Portland police said.

Mr. Balizan identified the suspect as Mohamed Osman Mohamud, 19, a naturalized United States citizen. He graduated from Westview High School in Beaverton, Ore., a Portland suburb, and had been taking classes at Oregon State in Corvallis until Oct. 6, the university said Saturday.

Mr. Mohamud was charged with trying to use a weapon of mass destruction. “Our investigation shows that Mohamud was absolutely committed to carrying out an attack on a very grand scale,” Mr. Balizan said.

“At the same time, I want to reassure the people of this community that, at every turn, we denied him the ability to actually carry out the attack,” he added.

The terrorism attempt was the latest is a string of plots since last year involving Americans or immigrants who had become radicalized, often through exposure to extremist Web sites. In May, a Pakistani-born American was arrested in the plotting of a car bomb attack in Times Square, and later pleaded guilty.

But in contrast to that plan, which the authorities learned about only at the last minute, the F.B.I. had been tracking Mr. Mohamud since 2009 and his planning unfolded under the scrutiny and even assistance of undercover agents, officials said.

Mr. Mohamud was arrested 20 minutes before the tree-lighting ceremony started. As he was taken into custody, he kicked and screamed at the agents and yelled “Allahu akbar,” an Arabic phrase meaning “God is great,” the authorities said.

Federal agents said Mr. Mohamud thought Portland would be a good target because Americans “don’t see it as a place where anything will happen.”

“It’s in Oregon; and Oregon, like you know, nobody ever thinks about it,” an affidavit quotes him as saying.

The F.B.I.’s surveillance started in August 2009 after agents intercepted his e-mails with a man he had met in Oregon who had returned to the Middle East, according to a law enforcement official who described the man as a recruiter for terrorism. According to the affidavit, the man had moved to Yemen and then northwest Pakistan, a center of terrorism activity.

Mr. Mohamud was then placed on a watch list and stopped at the Portland airport in June 2010 when he tried to fly to Alaska for a summer job.

Later in June, aware of Mr. Mohamud’s frustrated attempts to receive training as a jihadist overseas, an undercover agent first made contact with him, posing as an associate of the man in Pakistan. On the morning of July 30, the F.B.I. first met with Mr. Mohamud in person to initiate the sting operation.

The planning for the attack evolved from there, with Mr. Mohamud taking an aggressive role, insisting that he wanted to cause many deaths and selecting the Christmas target, according to federal agents. Reminded that many children and families would be at the ceremony, Mr. Mohamud said that he was looking for “a huge mass” of victims, according to the F.B.I.

He had been dreaming of committing an act of terrorism for four years, Mr. Mohamud told undercover agents: “Since I was 15 I thought about all this things before.”

One of the unknowns in the case is the precise role of the unnamed man with whom Mr. Mohamud exchanged the intercepted e-mails. According to the affidavit, the man was a student in the United States from August 2007 to July 2008. At some point, while Mr. Mohamud was in high school, the two met. In his initial meetings with the undercover agents, Mr. Mohamud described his dreams of joining the jihadist cause, and mentioned articles he had written on the subject.

Mr. Mohamud told the agents that in 2009 he had published three articles on the Web site Jihad Recollections, which was edited by a Saudi-born American, Samir Khan, from a home in North Carolina. Mr. Khan moved to Yemen, where he runs Inspire, an English-language Web site, on behalf of Al Qaeda in the Arabian Peninsula.

One of Mr. Mohamud’s articles was titled “Getting in Shape Without Weights” and described the need to “exercise the body and prepare it for war.”

It was not clear on Saturday whether Mr. Mohamud had yet obtained counsel.

Defense lawyers in such cases involving sting operations often accuse the F.B.I. of entrapment. Anticipating such claims, undercover agents in Mr. Mohamud’s case offered him several nonfatal ways to serve his cause, including mere prayer. But he told the agents he wanted to be “operational,” and perhaps execute a car bombing.

In August, Mr. Mohamud described the target he had in mind — Portland’s Christmas tree lighting in Pioneer Courthouse Square.

The agent asked: “You know there’s gonna be a lot of children there?”

Mr. Mohamud replied: “Yeah, I mean that’s what I’m looking for.”

The agents repeatedly asked him if he was prepared to commit such a violent act. “I want whoever is attending that event to leave, to leave either dead or injured,” Mr. Mohamud told the agents, according to the affidavit.

He referred to the Sept. 11 attacks, and how people were forced to jump from the burning World Trade Center towers, calling such violence “awesome.”

For the next several weeks, the F.B.I. let the plot play out, assisting Mr. Mohamud with the details, providing him with cash, scoping out a parking spot near the square, sketching out the plan on paper. At the end of September, Mr. Mohamud mailed bomb components to agents he thought were fellow operatives who would assemble the device.

Planning to leave the country afterward, he sent passport pictures to the undercover agent. On Nov. 4, Mr. Mohamud went with undercover agents to a remote spot where they exploded a bomb in a backpack.

They then drove to his apartment, where he made a video full of apocalyptic phrases. “Explode on these infidels,” he said, in mixed English and Arabic.

On Tuesday, according to the affidavit, Mr. Mohamud and the undercover agents met again for final preparations, loading what seemed like parts of a bomb into a vehicle, planning details of the operation. He even told the agents the pseudonym he had chosen for the passport to be used in his escape: Beau Coleman.

On Friday, Mr. Mohamud and the agents drove to the square, where the police had made sure a parking space had been held open. Mr. Mohamud then dialed the number that he thought would set off the bomb. Nothing happened. He was told that to get better reception, he should step out the car to dial again.

Instead, he was arrested. Mr. Mohamud is scheduled to appear in federal court here on Monday and faces a maximum sentence of life in prison.

In the apartment complex next to a commuter rail line in Beaverton where members of Mr. Mohamud’s family are believed to live, no one answered the door Saturday. Voices could be heard inside, but a handwritten sign taped to the door warned against solicitors and trespassers.

“They’re not going to answer,” said Itzel Barajas, who lives in the apartment across the outdoor hallway at the complex, Merlo Station Apartments.

Bahja Osman was one of several Somali women who visited the apartment.

“We feel very, very sad,” Ms. Osman said. “That’s why we’re coming — as a peace.”

Ms. Osman said she met Mr. Mohamud’s mother, whose first name she and several others said was Mariam, when they lived at a different apartment complex nearby. She said the Mohamud family came to Oregon several years go “to study, everybody, to go to school and to live.”

Ms. Osman said Mr. Mohamud’s mother was very upset.

“I didn’t believe it,” Ms. Osman said of the news that Mr. Mohamud had been arrested. “She’s surprised, too.”

Mr. Mohamud was born in Mogadishu, Somalia, in 1991. He attended Jackson Middle School and Wilson High School in Portland before transferring to Westview High School in Beaverton. Brandon Guffey, a classmate of Mr. Mohamud who said he had known him since 2002 but had not spoken to him since they went to Wilson, recalled Mr. Mohamud as a “perfectly normal guy.”

Mr. Guffey, 20, said that Mr. Mohamud had a solid group of friends who were also Muslim, and that he was interested in sports and hip-hop culture. Mr. Guffey said Mr. Mohamud and his friends never acted in a way he considered extreme, adding he never heard Mr. Mohamud talk about religion or politics.

Stephanie Napier, who lived across from Mr. Mohamud’s family for several years, said his mother was extremely proud of her son and described him to her as a high-achiever who did well in school.

She said the family appeared to follow Muslim customs and celebrate Muslim holidays, but she emphasized that she knew little about Islam and that she did not talk to the family about religion. Ms. Napier said she believed her family was one of few non-Somali families with which Mr. Mohamud’s family had regular contact. Mr. Mohamud’s sister, Mona, often walked the Napiers’ young son to school in the morning.

“It was a bad choice the kid made,” Ms. Napier said, referring to Mr. Mohamud, “but I want people to know that his family are good people.”

Two acquaintances of Mr. Mohamud’s family said that Mr. Mohamud’s father worked for Intel, which has offices in Hillsboro, a Portland suburb. They said they thought he worked as an engineer.

Kola Ray, who lives in the same apartment complex as the Mohamud family, said she remembered seeing Mr. Mohamud very late at night, hanging out with other teenagers near the mailboxes beside the complex’s parking lot. She said the image stayed with her because an older man was often with them and seemed to be speaking to them as a group. She said she did know who the man was.

Although Mr. Mohamud’s arrest marks another episode in which a Somali-American has been accused of radical attempts at violence, there was no evidence that Mr. Mohamud had any current link to Somalia or was a sympathizer of the Shabab, a militant Islamic group in Somalia. And despite Mr. Mohamud’s contacts with militants abroad, officials said he appeared to have acted alone in his pursuit of the bombing here.

His case resembles several others in which American residents, inspired by militant Web sites, have tried to carry out attacks in the name of the militant Islamic movement only to be captured in a sting operation.

In a similar case in September 2009, a 19-year-old Jordanian was arrested after placing a fake bomb at a 60-story Dallas skyscraper. The same month, a 29-year-old Muslim convert was charged with placing a bomb at the federal building in Springfield, Ill. And in October, a 34-year-old naturalized American citizen born in Pakistan was arrested and charged with plotting to bomb the Washington subway after meeting with undercover agents and discussing his plans and surveillance activities.

On Saturday, Muslim and Arab American leaders in Oregon and southwest Washington condemned the attack in a joint statement, calling it “inexcusable and without any justification in Islam or authentic Muslim tradition.”

At a news conference later, representatives of several Portland mosques asserted their confidence in law enforcement officials’ actions so far. Afterward, three of the gathered community members bowed in prayer near the entrance to the Portland City Hall.

Colin Miner reported from Portland, Ore., and Liz Robbins and Erik Eckholm from New York. Reporting was contributed by William Yardley from Beaverton, Ore.; Beth Slovic and Amanda Waldroupe from Portland; and Andrea Elliott, Eric Schmitt, Scott Shane and Edward Wyatt from Washington. Kathleen A. Bennett contributed research.

    F.B.I. Says Oregon Suspect Planned ‘Grand’ Attack, NYT, 27.11.2010, http://www.nytimes.com/2010/11/28/us/28portland.html

The Real Threat to America

November 25, 2010
The New York Times
By ROGER COHEN

LONDON — The full-body scanners and intrusive pat-downs that are fast becoming the norm at U.S. airports — just in time for Thanksgiving! — do at least provide the answer to what should be done with Osama bin Laden if he’s ever captured: Rotate him in perpetuity through this security hell, “groin checks” and all.

He’ll crumple fast and wonder that 19 young guys in four planes could so warp the nervous system of the world’s most powerful nation that it has empowered zealous bureaucrats to trample on the liberties for which Americans give thanks this week.

In his stupor, arms raised as his body gets “imaged,” arms outstretched through “enhanced” patting, bin Laden might also wonder at just how stupid it is to assemble huge crowds at the Transportation Security Administration’s airport checkpoints, as if hundreds of people on planes were the only hundreds of people who make plausible targets for terrorists.

It seems Abdulmutallab, a name T.S.A. agents must now memorize, is to blame. Abdulmutallab is the failed Nigerian “underwear bomber” of last Christmas. He joins the failed shoe bomber and failed shampoo-and-bottled-water bombers in a remarkable success: adding another blanket layer of T.S.A checks, including dubious gropes, to the daily humiliations of travelers.

Whether or not these explosive devices were ever actually operable remains a matter of dispute, just as it remains a mystery that the enemy — if as powerful as portrayed — has not contrived a single terrorist act on U.S. soil since 9/11. What is not in doubt is an old rule: Give a bureaucrat a big stick and a big budget, allow said bureaucrat to trade in the limitless currency of human anxiety, and the masses will soon be intimidated by the Department of Fear.

Lavrenti Beria, Stalin’s notorious secret police chief, once said, “Show me the man and I’ll find you the crime.” The T.S.A. seems to operate on the basis of an adapted maxim: “Show me the security check and I’ll find you the excuse.”

Anyone who has watched T.S.A. agents spending 10 minutes patting down 80-year-old grandmothers, or seen dismayed youths being ordered back into the scanner booth by agents connected wirelessly to other invisible agents gazing at images of these people in a state of near-nakedness, has to ask: What form of group madness is it that forsakes judgment and discernment for process run amok?

I don’t doubt the patriotism of the Americans involved in keeping the country safe, nor do I discount the threat, but I am sure of this: The unfettered growth of the Department of Homeland Security and the T.S.A. represent a greater long-term threat to the prosperity, character and wellbeing of the United States than a few madmen in the valleys of Waziristan or the voids of Yemen.

America is a nation of openness, boldness and risk-taking. Close this nation, cow it, constrict it and you unravel its magic.

There are now about 400 full-body scanners, set to grow to 1,000 next year. One of the people pushing them most energetically is Michael Chertoff, the former Secretary of Homeland Security.

He’s the co-founder and managing principal of the Chertoff Group, which provides security advice. One of its clients is California-based Rapiscan Systems, part of the OSI Systems corporation, that makes many of the “whole body” scanners being installed.

Chertoff has recently been busy rubbishing Martin Broughton, the wise British Airways chairman who said many security checks were redundant — calling him “ill-informed.” Early this year Chertoff called on Congress to “fund a large-scale deployment of next-generation systems.”

Rapiscan and its adviser the Chertoff Group will certainly profit from the deployment underway (some of the machines were bought with funds from the American Recovery and Reinvestment Act). Americans as a whole will not.

Rapiscan: Say the name slowly. It conjures up a sinister science fiction. When a government has a right to invade the bodies of its citizens, security has trumped freedom.

Intelligence has improved beyond measure since 9/11. It can be used far more effectively at airports. Instead of humiliating everyone, focus on the very small proportion of travelers who might present a threat.

You can’t talk down fear simply by calling terrorists “violent extremists,” or getting rid of the color-coded terrorism alert system, as the Obama administration has done. During the Bosnian war, besieged Sarajevans had a word — “inat” — for the contempt-cum-spite they showed barbarous gunners on the hills by dressing and carrying on as normal. Inat is what Americans should show the jihadist cave-dwellers.

So I give thanks this week for the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

I give thanks for Benjamin Franklin’s words after the 1787 Constitutional Convention describing the results of its deliberations: “A Republic, if you can keep it.”

To keep it, push back against enhanced patting, Chertoff’s naked-screening and the sinister drumbeat of fear.

    The Real Threat to America, NYT, 25.11.2010, http://www.nytimes.com/2010/11/26/opinion/26iht-edcohen.html

Administration

to Seek Balance in Airport Screening

November 22, 2010
The New York Times
By SCOTT SHANE

Caught between complaints that airport screening has become too intrusive and threats of new terror attacks on aviation, the chief of the Transportation Security Administration said on Monday that the agency would consider changes to its new security measures if it found that the measures went too far.

John S. Pistole said on the “Today” show on NBC Monday morning that his agency was willing to rethink its policy on the physical screenings that have become a flashpoint of anger among travelers. “We’re going to look at how can we do the most effective screening in the least invasive way, knowing that there’s always a trade-off” between security and privacy, he said.

But he said on CNN’s program “American Morning” that “in the short-term there will not be any changes.”

Previously, Mr. Pistole had insisted in a statement issued on Sunday that the measures the agency had put in place were justified by the risks, and he had given no indication that the agency would reverse its move to using full-body scanners, now installed in 70 of the 450 airports in the United States, with physical pat-downs for passengers who object to the scans.

With the Thanksgiving travel crush imminent, Mr. Pistole said in the statement that his agency would try to make screening methods “as minimally invasive as possible.”

Security officials said the new procedures were the only way to detect explosives hidden under clothing. “We cannot forget that less than one year ago a suicide bomber with explosives in his underwear tried to bring down a plane over Detroit,” Mr. Pistole said in the statement on Sunday.

The debate over the proper balance of security and privacy was unfolding as Al Qaeda in the Arabian Peninsula, the terrorist group responsible for the Detroit airliner bomb last Christmas and for shipping explosive devices as air cargo last month, threatened to carry out similar plots to sow fear, disrupt travel and transportation, and impose huge costs on the United States.

“This strategy of attacking the enemy with smaller but more frequent operations is what some may refer to as the strategy of a thousand cuts,” the Yemen-based group said in a new issue of its English-language magazine, Inspire, which resembles a glossy publication but can be downloaded from militant Web sites. “The aim is to bleed the enemy to death.”

The T.S.A., which screens about two million air passengers a day, began testing the full-body scanners in 2007, installed them more widely starting last year and accelerated their use after the failed plot last Christmas. If a screener spots something suspicious on a scan, which shows an outline of the unclothed body, or if a passenger declines to be scanned, the passenger must undergo a physical search that many passengers have found intrusive.

The furor began after Nov. 1, when the agency introduced the more aggressive pat-down procedure. In answer to the storm of criticism from passengers, from pilots and from members of Congress, agency officials point to opinion polls showing that about 80 percent of the public supports the use of body scanners. So far this month, about 1 percent of passengers have declined to be scanned and have undergone pat-downs instead, officials said.

Congressional leaders have promised to hold hearings on the issue.

Still, the administration seemed to be caught off guard by the outrage expressed by some passengers. Mr. Pistole agreed on Saturday to demands from pilots that they be exempted from the searches, after critics noted that a pilot who wants to destroy a plane hardly needs explosives to do so.

On Saturday in Lisbon, President Obama acknowledged public complaints, but he said the more aggressive security measures were nonetheless necessary. The president said counterterrorism advisers and the T.S.A. had told him that “at this point” the measures “are the only ones right now that they consider to be effective against the kind of threat that we saw in the Christmas Day bombing.”

Secretary of State Hillary Rodham Clinton said on “Meet the Press” on NBC Sunday that she did not want to “second-guess” security officials, and that “everyone, including our security experts, are looking for ways to diminish the impact on the traveling public.”

On another Sunday talk show, “Face the Nation” on CBS, Mrs. Clinton said she would not like to go through a security pat-down herself.

“Not if I could avoid it,” she said. “No. I mean, who would?”

On “State of the Union” on CNN Sunday, Mr. Pistole, a 26-year F.B.I. veteran who took over at the Transportation Security Administration in June, described the scanners and pat-downs as the last line of defense against terrorists who have not been stopped by no-fly lists or the “behavior detection officers” who look out for suspicious conduct at airports.

Mr. Pistole said that if someone bent on terrorism gets to a security checkpoint and declines to be scanned, “we just want to make sure, for example, on Christmas Day, they receive a thorough pat-down so they don’t pose a risk to that plane” Mr. Pistole said, in a clear reference to the underwear bomber.

In a sense, the strategy trumpeted by Al Qaeda in the Arabian Peninsula in the new issue of Inspire represents a victory for Western counterterrorism. The group acknowledged that Sept. 11-style attacks may be impossible to organize without being detected by the expanded intelligence dragnet.

“Really, it’s a good marketing spin on a pretty desperate strategy,” said James Carafano, a security specialist at the Heritage Foundation.

But the magazine showed that Qaeda planners have an increasing awareness that smaller-scale attacks, including those focused on air cargo, can cause enormous economic damage and public anxiety.

“It has a particular impact, coming as it does at a time when we’re arguing about how to prevent the kind of attack the same group tried at Christmas,” said Bruce Hoffman, an expert on terrorism at Georgetown University.

Both Mr. Carafano and Mr. Hoffman said they would advise the administration to revise the screening procedures. Mr. Carafano said limiting the body scans and pat-downs to secondary screening, for travelers who raise suspicions, would be more sensible than expanding the costly scanners to all travelers.

Mr. Hoffman said the administration should move away from adding more layers of security for every passenger in response to every new plot and consider an Israeli-style approach to identify passengers who pose a particular risk, based on advance intelligence, questioning travelers and watching their behavior.

“We’ve had nine years of just grafting security measures one on another,” Mr. Hoffman said. “Maybe it’s time to step back, take a hard look and look for a new approach.”

    Administration to Seek Balance in Airport Screening, NYT, 22.11.2010, http://www.nytimes.com/2010/11/23/us/23tsa.html

A Terrorist Gets What He Deserves

November 18, 2010
The New York Times
By MORRIS DAVIS

Washington

CRITICS of President Obama’s decision to prosecute Guantánamo Bay detainees in federal courts have seized on the verdict in the Ahmed Ghailani case as proof that federal trials are a disastrous failure. After the jury on Wednesday found Mr. Ghailani guilty of only one charge in the 1998 African embassy bombings, Mitch McConnell, the Republican leader in the Senate, called on the administration to “admit it was wrong and assure us just as confidently that terrorists will be tried from now on in the military commission system.”

The verdict — in which Mr. Ghailani was found guilty of conspiring to blow up United States government buildings and not guilty on 284 other counts — came as a surprise to many, but the outcome does not justify allowing political rhetoric like Senator McConnell’s to trump reality.

True, prosecutors suffered a major setback when Judge Lewis Kaplan of the Federal District Court in Manhattan refused to permit the testimony of the only witness who could connect Mr. Ghailani to the explosives used in the bombings. The judge did so because Mr. Ghailani claimed that he revealed the identity of this witness after being tortured by the C.I.A. The prosecution did not contest his claim, arguing instead that the identificationof this “giant witness for the government” was only remotely linked to Mr. Ghailani’s interrogation.

Judge Kaplan disagreed, saying that Americans cannot afford to let fear “overcome principles upon which our nation rests.” He said that, given the same circumstances, a military commission judge might have reached the same conclusion and barred the testimony.

Many have scoffed at this claim. Representative Peter King, a New York Republican, insists that Judge Kaplan “doomed” the case. Yet a look at the record shows that Judge Kaplan’s assessment of what a military commission judge might have decided was well founded.

Consider Mohammed Jawad, an Afghan teenager who was charged with attempted murder for throwing a grenade at an American vehicle in Kabul in 2002. In 2008 a military judge, Col. Stephen Henley, suppressed incriminating statements Mr. Jawad had made after he was beaten and his family threatened while he was in Afghan custody. The military commission charges were later dropped and last year the United States sent Mr. Jawad home to Afghanistan.

We don’t know for certain whether a military judge would have reached the same conclusion as Judge Kaplan, but given the Jawad precedent it seems very possible. Those who claim to know that the government would have gotten a more favorable ruling in a military commission are ignoring the record.

In any case, Mr. Ghailani now faces a sentence of 20 years to life. Even if he gets the minimum, his sentence will be greater than those of four of the five detainees so far convicted in military commissions. Only one defendant, Ali Hamza al-Bahlul, has been sentenced to life, and this was after he boycotted his tribunal and presented no defense.

Of the four detainees who participated in their military commissions, Omar Khadr, a Canadian citizen who was 15 when arrested, is serving the longest sentence after pleading guilty to murder. Yet he will serve no more than eight years behind bars, less than half of Mr. Ghailani’s minimum incarceration. Salim Hamdan, Osama bin Laden’s former driver, was sentenced to five and half years in 2008 but given credit for time served; five months later he was free. There is no reason to assume that a military commission sentence will be more severe than one from a federal court.

In addition, Mr. Ghailani may well serve his sentence at the “supermax” federal prison in Florence, Colo., where others convicted in the embassy bombings are confined. If so, he will spend more time in solitary and enjoy fewer privileges than those under the most restrictive measures at Guantánamo.

President Obama is in a no-win situation when it comes to trying detainees — any forum he chooses will set off critics on one side of the debate or the other. I hope he pauses to reflect on what he said at the National Archives in May 2009: “Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and our juries, our citizens, are tough enough to convict terrorists.”

The Ghailani trial delivered justice. It did so safely and securely, while upholding the values that have defined America. Now Mr. Obama should stand up to the fear-mongers who want to take us back to the wrong side of history.

Morris Davis, a former Air Force colonel, was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, from 2005 to 2007. He is the director of the Crimes of War Project.

    A Terrorist Gets What He Deserves, NYT, 18.11.2010, http://www.nytimes.com/2010/11/19/opinion/19davis.html

At Terror Trial, Big Questions Were Avoided

November 18, 2010
The New York Times
By BENJAMIN WEISER and CHARLIE SAVAGE

One of the striking aspects of the case of Ahmed Khalfan Ghailani, the first former Guantánamo detainee tried in a civilian court, was how little the federal jury in New York City heard about the issues that had made his case so fiercely debated.

The jurors heard nothing about the prison at Guantánamo Bay, Cuba, where Mr. Ghailani had been held, nor about the secret overseas “black site” run by the Central Intelligence Agency, where, his lawyers say, he had been tortured.

The jury also was not told about statements Mr. Ghailani had made to interrogators before he was brought into the civilian court system, statements that prosecutors say “amount to a confession” of his role in the 1998 bombings of two American Embassies in East Africa, killing 224 people.

Indeed, the four-week trial of Mr. Ghailani realized none of the fears of critics who had claimed that the civilian system would allow terrorism suspects to turn such cases into soapboxes, or that such cases might even be dismissed by judges who were presented with evidence of harsh government interrogation techniques.

That said, the trial also failed to fulfill one of the hopes of some advocates of civilian courts, who saw them as a potential forum for a detailed examination of the Bush administration’s post-9/11 policies on detention and interrogation.

The trial’s outcome — Mr. Ghailani was convicted Wednesday of only one of more than 280 counts including conspiracy and murder — has unquestionably recharged the debate over the wisdom of trying detainees like Khalid Shaikh Mohammed, the professed planner of the 9/11 plot, in federal court.

But the surprising outcome — which pleased defense lawyers and disappointed family members of those killed in Al Qaeda’s attacks on the embassies — was not terribly affected by the issues that have made up that debate.

“At times,” said Ben Wizner, litigation director of the American Civil Liberties Union’s National Security Project, “it seemed like the only forum in which we might have an airing of the legal consequences of torture was in criminal cases against the detainees, but obviously that didn’t happen here.”

What did happen, in the end, was something of a straightforward murder trial, stripped of the larger, inflammatory political aspects, leaving it up to 12 jurors to sort through a familiar assortment of evidence: witness testimony and forensic findings.

The question of how to prosecute detainees who had been subjected to the Bush administration’s counterterrorism policies — including being held for years without charges, and the tainting of important evidence by allegations of torture — was a major issue in Attorney General Eric H. Holder Jr.’s initial decision to send the cases of Mr. Mohammed and four men accused as 9/11 conspirators to the civilian system.

Before making that decision last fall, Mr. Holder requested memorandums from a team of civilian prosecutors based in Manhattan and in Alexandria, Va., the Justice Department’s two premier offices for terrorism cases, and from a team of military prosecutors assigned to the Office of Military Commissions, according to officials familiar with the deliberations.

The military team’s proposed prosecution plan centered on using statements Mr. Mohammed and other detainees had made under interrogation while in custody.

By contrast, the civilian team came up with a way to prosecute the case without using any such statements. The advantage of that approach would be to eliminate the possibility that a statement, if allowed into a trial by a judge, could be the basis of an appeal on grounds that it was tainted and should never have been admitted.

Mr. Holder told colleagues that the contrast between the two memorandums helped convince him that the civilian prosecutors’ approach was more deft. He cited that impression as one of several factors supporting his conclusion that the government was more likely to win a conviction — and have it survive appeal — in the civilian system.

Mr. Ghailani’s case was largely a test of that strategy.

Peter E. Quijano, one of Mr. Ghailani’s lawyers, said on Thursday that when he was appointed to the case in June 2009, “One of the first things that I thought was that I’d have the opportunity to expose exactly what was done to detainees by this country at black sites.

“However, that was quickly removed from consideration,” he said, “once the government made the determination that it would not use” the statements Mr. Ghailani had made during his nearly five years of detention by the C.I.A. and the military.

With those statements out of the case, Mr. Quijano said, how they were obtained — through torture, he said — would no longer be relevant.

A separate government decision also helped to remove the issue of the so-called black sites, or C.I.A. prisons, from the case.

The defense had asked the judge, Lewis A. Kaplan of Federal District Court in Manhattan, to order the government to preserve the prison where Mr. Ghailani had been held. The lawyers made clear that if the government sought the death penalty against Mr. Ghailani, they planned to argue that the sites should be a mitigating factor against capital punishment, “because of what they had done to him” there, Mr. Quijano said.

The lawyers were concerned that the C.I.A., which had said it was halting the use of the secret prisons, would demolish them.

But Mr. Holder decided against seeking capital punishment, thus removing the sites as a potential issue in a death-penalty proceeding.

A ruling by Judge Kaplan also ensured that the issue of torture would not derail the case, when he rejected a defense request that he dismiss the indictment because of the harsh tactics used on Mr. Ghailani. The judge also ruled that the long delay in bringing Mr. Ghailani into court had not violated his right to a speedy trial.

Both of those decisions were clear and important triumphs for the government, and would seem to have settled concerns about whether the protections afforded defendants in the civilian courts would lead to outright dismissals of the cases coming from Guantánamo.

Interestingly, Mr. Ghailani’s lawyers, who argued that their client was an unwitting dupe of Al Qaeda, benefited from the streamlined case — much of which came down to circumstantial evidence suggesting his involvement in the bombings plot.

In the end, he was convicted of a single count of conspiring to destroy government property. He could face 20 years to life in prison, but there was no mistaking that the conviction was far more limited than the broad set of charges the government had brought.

A former federal prosecutor, James J. Benjamin Jr., said he would have been surprised had the government sought to inject the highly politicized issues into the trial.

“It would have been counterproductive,” he said, “from the prosecution’s point of view, and the same is true for the defense. I think both sides probably made a wise strategic choice.”

    At Terror Trial, Big Questions Were Avoided, NYT, 18.11.2010, http://www.nytimes.com/2010/11/19/nyregion/19ghailani.html

Ghailani Verdict Reignites Debate Over the Proper Court for Terrorism Trials

November 18, 2010
The New York Times
By CHARLIE SAVAGE

WASHINGTON — Fierce criticism erupted Thursday over the split verdict on terrorism charges against the first Guantánamo detainee to be tried in civilian court, casting new doubts on the Obama administration’s goal of trying cases against other prisoners in the civilian criminal justice system.

The defendant, Ahmed Khalfan Ghailani, was convicted Wednesday in federal court in Manhattan of conspiring in the 1998 embassy bombings in Africa, and he faces a sentence of 20 years to life in prison. But Republican critics roundly denounced the fact that a jury acquitted him on all but one of more than 280 charges — including every murder count — as a sign that such terrorism detainees should be prosecuted only before a military commission.

That portrayal of the verdict as a disaster was hotly contested by the administration and other supporters of civilian trials. They argued that the system had shown that a terrorist could be convicted and sentenced to a stiff prison term even after a judge excluded evidence tainted by coercive interrogations during the Bush administration.

“People who are criticizing this verdict need to remember the underlying facts of this case and the fact that the verdict handed down will lead to a sentence of anywhere from 20 years to life,” said Matthew Miller, a Justice Department spokesman.

Still, the Obama administration on Thursday appeared to be further away than ever from reaching a decision about how and where to prosecute the highest-profile Guantánamo detainees — Khalid Sheikh Mohammed and four other accused conspirators in the terrorist attacks of Sept. 11, 2001.

Attorney General Eric H. Holder Jr. had decided a year ago to hold the Sept. 11 trial in the federal courthouse in Manhattan. But a few months later, amid concerns about security and anxieties over the attempted bombing of a Detroit-bound airplane last Christmas, the White House rescinded that move without announcing a new venue.

Since then, the political climate has grown more hostile to such a trial in federal court, including opposition by political leaders from each of the potential jurisdictions in the case. White House officials say they continue to discuss their options, including whether it would be possible to change the political dynamics.

Both supporters and critics of the Obama policy had closely watched the Ghailani case. The verdict appeared to add to the political risk by demonstrating that a jury could completely acquit a major terrorism suspect, despite Mr. Holder’s vow that “failure is not an option” in the Sept. 11 case.

“This complicates the equation with regard to civilian trials of high-level Al Qaeda detainees.” said Juan C. Zarate, a deputy national security adviser in the Bush administration who favors civilian trials for some terrorism prosecutions.

“The paradox with these kinds of cases has always been that if these individuals are found not guilty, will the American government let them go free, which is the construct of a criminal proceeding? And the answer is no,” he said, referring to the government’s claim that it can continue to hold Al Qaeda members indefinitely as wartime prisoners. “This case highlights that tension.”

Many prominent Republicans seized on the verdict to renew their call not to bring any other Guantánamo detainee into the United States for a civilian trial. Among them, the incoming speaker of the House, John A. Boehner of Ohio, said “the decision by this administration to try terrorists in civilian court was the wrong one from Day 1” because “terrorists should be tried in military, not civilian, courts.”

Administration officials privately lamented the heated rhetoric, saying that it sometimes blurred the distinction between the special problems associated with the evidence against the group of detainees at Guantánamo who were subjected to harsh interrogations, and ordinary cases of terrorism suspects who have not been abused in custody.

And Representative Jane Harman, a California Democrat and member of the Homeland Security Committee, accused critics of falsely characterizing the Ghailani case “for political advantage,” arguing that he was facing “a stiffer sentence than all but one meted out by military tribunals.”

Many observers attributed any weakness in the prosecution’s case to the fact that the Judge Lewis A. Kaplan of United States District Court in Manhattan, who presided over the trial, refused to allow prosecutors to introduce testimony from an important witness, who was discovered after interrogators used coercive techniques on Mr. Ghailani.

Much of the criticism of the verdict was based on the idea that such evidence would have been admissible in a military commission trial. The incoming chairman of the House Judiciary Committee, Lamar Smith, Republican of Texas, pointed to the exclusion of the witness from the trial as undercutting the idea that foreign terrorists “can be adequately tried in civilian courts,” for example.

“The judge in this case, applying constitutional and legal standards to which all U.S. citizens are entitled, threw out important evidence,” he said.

But proponents of civilian trials noted that in a footnote of his order rejecting the witness, Judge Kaplan pointed to restrictions against evidence obtained by torture in military trials and strongly suggested that a military judge would have excluded the testimony, too.

And Mason Clutter, the counsel of the Rule of Law Program at the bipartisan Constitution Project, noted that most of the arguments that proponents of military tribunals usually make about the risk of civilian trials — like extreme security costs, grandstanding by the defendant, and the disclosure of classified information — did not happen in the Ghailani case.

Still, arguments over the factual details of the case were overshadowed by the larger political dynamics.

“This is a tragic wake-up call to the Obama administration to immediately abandon its ill-advised plan to try Guantánamo terrorists” in civilian courts, said Representative Peter T. King, Republican of New York, the incoming chairman of the House Homeland Security Committee. “We must treat them as wartime enemies and try them in military commissions at Guantánamo.”

Jack Goldsmith, a former top Justice Department official in the Bush administration, argued in a blog posting that “most if not all of the challenges” of the Ghailani case would have been replicated in a military court. He said the verdict showed that such detainees should be held without any trial.

Indefinite military detention, he said, “is a tradition-sanctioned, Congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation. And this morning it looks more appealing than ever.”

    Ghailani Verdict Reignites Debate Over the Proper Court for Terrorism Trials,  NYT, 18.11.2010, http://www.nytimes.com/2010/11/19/us/19gitmo.html

The Ghailani Verdict

November 18, 2010
The New York Times

The verdict in the first federal trial of a former Guantánamo detainee has unleashed the usual chest-thumping and fear-mongering from the usual politicians. They are disappointed that the defendant was only convicted of one count of conspiring to blow up American Embassies in Kenya and Tanzania in 1998 — a crime for which he will probably serve a life sentence.

That clearly wasn’t enough for Representative Peter King, a Long Island Republican who will be the next chairman of the House Homeland Security Committee. He showed a shocking disdain for the 12 jurors, who deliberated more than four days. He described their verdict as a “total miscarriage of justice.”

Senator John McCain proclaimed on the “Imus in the Morning” program that the verdict proved that all terrorism cases should be tried in military commissions, which he said were set up to “get the job done.”

It’s not clear what job Mr. McCain had in mind, unless he meant guaranteeing guilty verdicts, on all counts, all of the time, no matter what the facts are in a case. President George W. Bush created such a system. The Supreme Court rightly declared it unconstitutional.

Let’s pause to consider some facts:

Ahmed Khalfan Ghailani was convicted of a major crime and will pay a high price. The military tribunals have generated four minor guilty verdicts. Not one of the really dangerous men at Guantánamo Bay, Cuba, like Khalid Shaikh Mohammed, the mastermind of Sept. 11, has been brought to trial. It’s never been clear why the tribunals can’t manage to try an important case. Perhaps it is because those cases are so tainted by torture and illegal detention. But it’s clear the tribunals are not working.

Despite predictions of security problems — an argument that Mr. King, Mr. McCain and others often make against civilian terrorism trials — the courthouse near ground zero in Lower Manhattan, the judge, the jury, all of New York City, got safely through the trial.

The prosecution was not as robust, perhaps, as it might have been, but the problem was not the civilian courts. It was the years of abuse that preceded the trial.

Mr. Ghailani was held for five years in outlaw C.I.A. prisons and at Guantánamo and was abused and likely tortured. The prosecution chose not to use his interrogation records because of that and could not introduce testimony by another witness because interrogators learned his name from Mr. Ghailani’s coerced testimony.

That severely tainted evidence most likely would also have been excluded in a military trial. The military tribunals act bars coerced evidence. Mr. McCain knows that because he was a driving force behind the 2006 law and its 2009 amendments. Mr. King voted for both bills.

The problem was never the choice of a court. The 12 civilian jurors were not too weak-minded, as Mr. King seems to think. The judge was not coddling terrorists. He was respecting the Constitution and the law.

The problem with this case was President George W. Bush’s authorizing the illegal detention, abuse and torture of detainees. Susan Hirsch, whose husband was killed in the Tanzania attack, understood that. “I can’t help but feel that the evidence in the case would have been stronger had Ghailani been brought to trial when he was captured in 2004,” she said.

Instead, Mr. Ghailani was kept in illegal detention and was abused and likely tortured.

Some politicians want to keep terrorism trials in military courts because it makes them look tough. Unfortunately, this sort of bluster has led the White House to back off of its pledge to try Mr. Mohammed and other high-profile prisoners in the federal courts.

What really makes this country strong is that it is based on laws not bluster. The federal courts have proved their ability to hold fair trials and punish the guilty. That is what we call getting the job done.

    The Ghailani Verdict, NYT, 18.11.2010, http://www.nytimes.com/2010/11/19/opinion/19fri1.html

Searching Your Laptop

November 15, 2010
The New York Times

Federal courts have long agreed that federal agents guarding the borders do not need a warrant or probable cause to search a traveler’s belongings. That exception to the Fourth Amendment needs updating and tightening to reflect the realities of the digital age.

The government has a sovereign right and responsibility to secure the borders. The recent discovery of two powerful package bombs being shipped to the United States is a reminder of the many dangers out there.

There is also a big difference between government agents scanning items for explosives or looking through a suitcase full of clothing, and searching through the hard drive of a laptop computer containing work papers, financial records, e-mail messages and Web site visits.

Although the number of travelers whose devices are searched is small compared with the many millions who cross American borders each year, the problem is real. Between October 2008 and June 2010, more than 6,600 travelers — nearly 3,000 of them American — were subjected to such searches, according to government records released in response to a Freedom of Information request.

The George W. Bush administration first authorized border agents to seize and view the contents of laptops, smartphones, and other devices and copy and share data with other government agencies without need for any individualized suspicion of wrongdoing.

The Obama administration has tweaked the policy, requiring approval from supervisors to hold a seized device for more than five days, for example. The fundamental flaw remains: it permits the government to engage in indiscriminate and invasive fishing expeditions.

The Supreme Court has yet to confront the issue. But in a disappointing ruling in 2008, the United States Court of Appeals for the Ninth Circuit in San Francisco said that agents at a border need not meet even the low threshold of reasonable suspicion to justify a warrantless laptop search. The ruling reversed a lower court’s finding that laptops are “an extension of our own memory” and too personal to allow government searches without some reasonable and articulable suspicion.

The American Civil Liberties Union has now filed a lawsuit challenging the policy on behalf of press photographers, criminal defense attorneys and a doctoral student in Islamic studies whose laptop was searched and confiscated this spring.

Congress should not wait for resolution of the case. It should approve legislation along the lines of the Travelers’ Privacy Protection Act proposed two years ago in the Senate.

It would have confined border laptop searches involving American citizens and residents to situations where agents have a reasonable suspicion of illegal activity and require a higher standard of probable cause and a warrant or court order when a laptop is held for more than 24 hours. The measure also set strict limits on disclosure and sharing of information from devices seized at the border and requires the Department of Homeland Security to report regularly to Congress and the public on its search policies and practices.

The Senate bill’s leading sponsor, Russ Feingold of Wisconsin, was defeated in this month’s election. His three Democratic co-sponsors — Daniel Akaka of Hawaii, Ron Wyden of Oregon, and Maria Cantwell of Washington — should press the issue in the new Senate.

The challenge, as ever, is to strike a balance that grants sufficient leeway to protect the nation’s borders without allowing the intimate details of people’s lives and work to be searched, seized and copied on a whim.

    Searching Your Laptop, NYT, 16.11.2010, http://www.nytimes.com/2010/11/16/opinion/16tue1.html

Warped Justice

November 8, 2010
The New York Times

In reaching a plea deal to end the prosecution of Omar Khadr, a former child soldier held at the Guantánamo Bay, Cuba, detention center, the Obama administration achieved its political goal of avoiding having this disturbing case be the first to go to trial under its revamped military commissions. But this is not a legal victory anyone can feel proud about.

Mr. Khadr, a 24-year-old Canadian, was captured in Afghanistan when he was 15. He was thrown into armed conflict by his Al Qaeda-linked father, who was killed by Pakistani forces in 2003. As part of the plea deal, Mr. Khadr admitted that he threw a grenade that killed an American soldier during a 2002 firefight and that he planted roadside bombs. In exchange, his sentence was capped at eight years. After a year, he will be allowed to transfer to Canada to serve the remainder of his term.

It is hard to know what to make of Mr. Khadr’s admission of guilt. It may be truthful or driven by a fear that going to trial would mean a life sentence.

That concern became more acute following an appalling pretrial ruling by the military judge. He refused to exclude from evidence incriminating statements obtained under coercive and abusive circumstances by Mr. Khadr’s interrogators — including someone who implicitly threatened the frightened and severely wounded youngster with gang rape and was later convicted of detainee abuse in another case.

The case had other troubling aspects. Usually in war, battlefield killing is not prosecuted. The United States argued that Mr. Khadr lacked battlefield immunity because he wore no uniform. On the eve of a hearing, commission rules were hastily rewritten to downgrade “murder in violation of the laws of war” to a domestic law offense from a war crime in order to avoid seeming to concede that Central Intelligence Agency drone operators who reportedly fly the aircraft from agency headquarters in Virginia and also kill while not wearing uniforms commit war crimes.

United Nations officials and human rights groups objected to the prosecution’s dubious legality under international law. They noted the dangerous precedent set by making him the first person in many decades prosecuted for war crimes allegedly committed as a juvenile.

Then there is the matter of Mr. Khadr’s abusive treatment in custody. One witness at his pretrial hearing told of seeing him hooded and handcuffed to his cell with his arms extended painfully above his shoulders. In January, the Supreme Court of Canada criticized his lack of counsel and inclusion in the “frequent flier” program, which used sleep deprivation to get prisoners to talk.

Under military rules, Mr. Khadr’s case still had to go to a jury after the plea deal for a verdict that is mostly ceremonial. In a shabby yet perversely fitting conclusion, the prosecution asked the jury to recommend a long sentence and called a forensic psychiatrist who pronounced Mr. Khadr “highly dangerous.” On cross-examination, it turned out, the doctor’s views were colored by the work of a notorious Danish psychologist, Nicolai Sennels, who has called the Koran a “criminal book that forces people to do criminal things” and urges Western countries to halt all Muslim immigration.

A plea deal of eight years is better, obviously, than requiring Mr. Khadr to live his entire life behind bars. But he has already been imprisoned for eight years. That should have been enough.

    Warped Justice, NYT, 8.11.2010, http://www.nytimes.com/2010/11/09/opinion/09tue1.html

How to Keep Terrorism Grounded

November 1, 2010
The New York Times
By STEPHEN R. HEIFETZ

Washington

LAST week our country averted a disaster. Good work by American and foreign intelligence officials pinpointed explosives hidden in packages shipped in Yemen and bound on airplanes for the United States. But we cannot rely on getting such timely, accurate intelligence — it often is simply unavailable — and the episode highlighted a number of problems with our system for screening inbound air cargo.

The Department of Homeland Security has established very good “risk rating” systems to prevent dangerous goods from entering the country. The problem is that these systems are used only for cargo on ships, not for that arriving by air.

For oceangoing cargo, importers and shippers are required to provide substantial data on every container: the country of origin, the location where the container was packed, the seller, the buyer, where on the ship the container is stored and so forth.

The Department of Homeland Security, through its Customs and Border Protection agency, uses this data to generate a risk rating, and any package with a high rating gets substantial additional scrutiny. Sometimes this includes a physical search by foreign security personnel under the guidance of American officials, and in all cases it occurs before the ship even leaves the foreign port. Any package from trouble-ridden Yemen would be seen as a risk and likely would be a target for additional scrutiny.

So why is there no similar system in place for air cargo? There are two parts to the answer: one has to do with Congress and the other with the Department of Homeland Security.

In 2007, Congress passed a law requiring, within three years, physical screening — X-rays, dogs and the like — for all cargo on passenger planes. But the law did nothing to increase security on all-cargo flights like those operated by U.P.S. And while it didn’t explicitly ban the use of risk rating, Congress clearly didn’t want any shortcuts — it wanted every package checked physically. In effect, lawmakers made the perfect the enemy of the good.

Homeland Security officials had a tough challenge in meeting the Congressional mandate, but in large part they succeeded: by August of this year, 100 percent of cargo on passenger flights within and from the United States was being physically screened. However, only about 65 percent of cargo on passenger planes arriving in the United States from abroad is now subjected to some physical screening, and the percentage is far lower on all-cargo flights.

Some officials insist that we will have 100-percent physical screening for inbound air cargo within a few years. But that is wildly optimistic — we lack authority to force foreign countries to conduct the physical screening mandated by Congress, and many of these countries lack the resources to do it.

And even if we could compel adherence to our screening requirements, that would still not address cargo-only flights, which were untouched by the 2007 law. Given that nearly three-quarters of air cargo is moved by all-cargo flights, a physical screening system for them may not be feasible even inside the United States.

The only practical way to increase the security of inbound air cargo is to rely on a risk rating system rather than a physical screening system. It simply makes sense to decide which packages and flights are most likely to be dangerous, and focus on them. Besides, the information collection and analysis would not even require building new infrastructure or imposing our rules on foreign soil. Homeland security officials already collect electronically most of the data needed for risk analysis of air cargo.

Critically, however, the officials who get this data are from Customs and Border Protection, while the people Congress assigned to handle air cargo screening are from the Transportation Security Administration. The T.S.A. has understandably focused on the physical screening requirements in the 2007 law, because that’s what our lawmakers wanted and that’s what its employees are trained to do with air passengers and luggage.

Let’s hope that last week’s close call will convince T.S.A. officials and Congress that universal physical screening is a long way off, and that in the meantime we need a risk-assessment system for air cargo modeled on the one Customs uses for ship-borne containers.

It would take courage for the Homeland Security Department to tell Congress, “We’ve got to do things a bit differently than you may have had in mind — we’re going to use this well-tested risk-rating model.” But it would significantly enhance national security.

Stephen R. Heifetz, a lawyer, was the deputy assistant secretary for policy development at the Department of Homeland Security from 2007 to March 2010.

    How to Keep Terrorism Grounded, NYT, 1.11.2010, http://www.nytimes.com/2010/11/02/opinion/02heifetz.html