The LWOT: The underpants bomber talks; millions for the KSM trial

Welcome to the LWOT: Foreign Policy‘s new weekly brief on the legal war on terror by Andrew Lebovich of the New America Foundation, from the closure of Gitmo to the trial of Khalid Sheikh Mohammed, from the Supreme Court to the cells of Bagram, from Indonesia to the Maghreb. Every Friday, we’ll produce a quick read on the week’s wrangling, with updates on all the most relevant trials, arrests, and presidential directives. You can read it here on foreignpolicy.com or get it delivered directly to your inbox — just sign up here.

Obama goes on the offensive on the underpants bomber

This week, Barack Obama’s administration forcefully pushed back on Republican criticism of the detention and interrogation of failed underpants bomber Umar Farouk Abdulmutallab.

Sen. Mitch McConnell, the Republican minority leader, asserted that Larry King is a better interrogator than the FBI. In response, Attorney General Eric Holder released a five-page letter defending Mirandizing Abdulmutallab and trying him in a civilian court. Other Democratic officials noted that the legal interrogation didn’t make Abdulmutallab clam up.

Indeed, in Senate testimony on Feb. 2, FBI Director Robert Mueller said that Abdulmutallab had detailed his time in Yemen and given up important information on radical cleric Anwar al-Awlaki. Abdulmutallab reportedly began talking at the urging of family members flown from Nigeria to Michigan by the U.S. government. The Wall Street Journal profiled Abdulmutallab alongside the man who first raised alarms about his radicalization — his father.

KSM trial moves from New York — but to where?

Responding to pressure from Congress and New York Mayor Michael Bloomberg, President Obama is considering moving alleged 9/11 mastermind Khalid Sheikh Mohammed’s (KSM’s) trial out of downtown Manhattan. Federal law requires that Mohammed must be tried near the site of one of the 9/11 attacks, though the Los Angeles Times details why various proposed sites near New York are far from ideal.

Despite the opposition, the administration is moving ahead with plans for the trial. The 2011 Justice Department budget, released this week, includes a request for $73 million to try Mohammed and four others in civilian court, in addition to $237 million to purchase and staff a prison in Illinois for Guantánamo Bay inmates.

But the budget does not come into effect until October 2010, meaning that detainees could not be transferred until then. Further complicating the efforts to close Gitmo is a small but growing group of Democratic and Republican members of Congress threatening to pass legislation barring funding for civilian trials for suspected terrorists.

Inside Holder’s war to try KSM in a civilian court

The New Yorker‘s Jane Mayer has this week’s must-read article on the battle Attorney General Holder is waging in defense of a civilian trial for Mohammed:

At [Rahm] Emanuel’s urging, Holder spoke with [Sen. Lindsey] Graham several times. But they could not reach an agreement. Graham told me, "It was a nonstarter for me. There’s a place for the courts, but not for the mastermind of 9/11." He said, "On balance, I think it would be better to close Guantánamo, but it would be better to keep it open than to give these guys civilian trials." Graham, who served as a judge advocate general in the military reserves, vowed that he would do all he could as a legislator to stop the trials. "The President’s advisers have served him poorly here," he said. "I like Eric, but at the end of the day Eric made the decision." Last week, Graham introduced a bill in the Senate to cut off funding for criminal trials related to 9/11.

Pakistani neuroscientist, "Lady al Qaeda," convicted

On Feb. 3, Pakistani neuroscientist Aafia Siddiqui was convicted of attempted murder and several related charges in a New York court. In 2008, Siddiqui picked up an unattended rifle and fired at FBI agents and U.S. soldiers while detained at an Army base in Afghanistan. She had initially been held on suspicion of planning a terrorist bombing, a charge she denies, instead claiming that the military held her for years in a secret prison. Her supporters are demanding her release, and one Taliban commander has threatened to kill captured U.S. soldier Bowe Bergdahl if she is not freed.

Can the United States assassinate Americans?

Buried in a Washington Post story and picked up by bloggers: The U.S. president can order the assassination of U.S. citizens abroad, as long as they are suspected of terrorism. Former President George W. Bush made the rule, and Obama might soon make use of it. Salon blogger and lawyer Glenn Greenwald has the best outraged response:

The people on this "hit list" are likely to be killed while at home, sleeping in their bed, driving in a car with friends or family, or engaged in a whole array of other activities. More critically still, the Obama administration — like the Bush administration before it — defines the "battlefield" as the entire world. So the President claims the power to order U.S. citizens killed anywhere in the world, while engaged even in the most benign activities carried out far away from any actual battlefield, based solely on his say-so and with no judicial oversight or other checks. That’s quite a power for an American President to claim for himself.

Trials and tribulations: Spain investigates Gitmo, Bush lawyers cleared, Uighurs to Switzerland

• On Feb. 1, a Denver court unsealed the indictment against the father of alleged bombing plotter Najibullah Zazi. It accuses the elder Zazi of tampering with evidence in his son’s case. Mohammed Zazi will be transferred to New York to respond to the indictment, which will likely happen within one to two weeks.
• The five young American men arrested in Pakistan in December on suspicion of plotting to join terrorist groups passed a note out of their cell on Feb. 2 saying that they had been tortured by the FBI and Pakistani police. The U.S. State Department said it would investigate the charges, while a Pakistani court has ordered the men to undergo a medical examination.
• Influential Spanish judge Baltasar Garzón this week announced he will investigate accusations of torture and mistreatment of Guantánamo prisoners, citing a law that allows Spanish officials to investigate any crimes with links to Spain.
• A U.S. Justice Department report concluded that the two former Bush administration lawyers who wrote memos declaring waterboarding and other so-called "enhanced interrogation techniques" legal under U.S. law — John Yoo and Jay Bybee — should not face legal sanction for their actions.
• Canada’s Supreme Court ruled that U.S. and Canadian officials violated the rights of Guantánamo detainee Omar Khadr — the Americans for using enhanced interrogation techniques on the then-wounded teenager, and the Canadians for visiting and interviewing Khadr at Guantánamo in 2003 and 2004. Canada has not requested Khadr’s repatriation; he faces a U.S. military commission on charges that he killed a U.S. soldier with a grenade in Afghanistan.
• The last two of seven remaining Uighurs detained at Guantánamo have been offered asylum in Switzerland, staving off a U.S. Supreme Court decision that could have seen the men released into the United States. The two men are brothers, one of whom decided to remain at Guantánamo even after being freed in order to stay with his mentally ill sibling. The Swiss are taking the men despite Chinese threats.