The LWOT: No charges in CIA tape destruction; arguments heard in Awlaki lawsuit

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John Moore/Getty Images
John Moore/Getty Images
John Moore/Getty Images

No charges in CIA tape destruction

After a three-year investigation into the Nov. 9, 2005 destruction of dozens of tapes showing "brutal" CIA interrogations of two high-value terrorism suspects at a CIA safe house in Thailand, special prosecutor John Durham will reportedly not file charges over the decision to destroy the recordings (Politico, Reuters, NPR). The existence of the tapes, which documented among other things the waterboarding of alleged al Qaeda figure Abu Zubaydah and alleged U.S.S. Cole plotter Abd-al-Rahim al-Nashiri, was not revealed until 2007, despite previous requests for information on CIA interrogations from federal courts and the 9/11 Commission.

The decision to destroy the tapes was made by then-CIA clandestine service director Jose Rodriguez, who told a colleague that "out of context, the [tapes] would make us look terrible; it would be 'devastating' to us," and reportedly received assurances from two CIA lawyers that the tapes' destruction was not illegal (NYT). While this chapter of Durham's investigation is now closed, he is reportedly still looking into the deaths and unapproved treatment of detainees in CIA custody, and is also still investigating whether or not CIA officials lied during his investigation (Washington Post).

No charges in CIA tape destruction

After a three-year investigation into the Nov. 9, 2005 destruction of dozens of tapes showing "brutal" CIA interrogations of two high-value terrorism suspects at a CIA safe house in Thailand, special prosecutor John Durham will reportedly not file charges over the decision to destroy the recordings (Politico, Reuters, NPR). The existence of the tapes, which documented among other things the waterboarding of alleged al Qaeda figure Abu Zubaydah and alleged U.S.S. Cole plotter Abd-al-Rahim al-Nashiri, was not revealed until 2007, despite previous requests for information on CIA interrogations from federal courts and the 9/11 Commission.

The decision to destroy the tapes was made by then-CIA clandestine service director Jose Rodriguez, who told a colleague that "out of context, the [tapes] would make us look terrible; it would be ‘devastating’ to us," and reportedly received assurances from two CIA lawyers that the tapes’ destruction was not illegal (NYT). While this chapter of Durham’s investigation is now closed, he is reportedly still looking into the deaths and unapproved treatment of detainees in CIA custody, and is also still investigating whether or not CIA officials lied during his investigation (Washington Post).

The lawyer for al-Nashiri, whose client is currently detained at Guantánamo Bay, gave Polish prosecutors this week a list of individuals he said were involved in his client’s alleged torture at a secret CIA prison in Poland in 2002 (AFP). And in a television appearance promoting new book, Decision Points, President George W. Bush this week said Zubaydah "welcomed" waterboarding as part of what Bush calls Zubaydah’s religious obligations to resist, before talking to interrogators (FT, Telegraph).  British counterterrorism officials denied one of Bush’s claims in the book, that waterboarding 9/11 plotter Khalid Sheikh Mohammed led to the disruption of plots against Britain (Guardian).

Court hears motion to dismiss Awlaki lawsuit

Federal Judge John Bates heard arguments Nov. 8 in the lawsuit filed by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) on behalf of Nasser al-Awlaki seeking an injunction against government efforts to kill his son, radical cleric Anwar al-Awlaki (AP, CSM). This hearing dealt purely with the government’s motion to dismiss the case rather than the merits of the plaintiff’s arguments, and featured pointed questions to the plaintiffs about their client’s standing to bring suit on his son’s behalf, as well as questions posed to the government about why the United States needed judicial approval to seek a wiretap of a U.S. citizen abroad, but in Awlaki’s case would not need judicial approval to kill one (NYT, AFP). The Brookings Institution’s Benjamin Wittes and Adam Serwer of The American Prospect have somewhat dueling (and more detailed) explanations of the hearing, and Bates’ reactions to each sides’ arguments (Lawfare blog, TAP).

The hearing, coincidentally, took place on the same day that a new video appeared featuring Anwar al-Awlaki calling for the killing of Americans, and saying that such an act does not require prior approval from religious scholars (WSJ). A Yemeni judge this weekend ordered Awlaki’s capture in order to face charges of involvement with al Qaeda, incitement against foreigners, and links to the murder of a French citizen in Yemen, something Awlaki’s Yemeni lawyer denied in court Nov. 9 (CNN, AFP, AFP).

Arguments end in Ghailani trial

The defense finished its closing arguments Nov. 9 in the trial of Ahmad Khalfan Ghailani, accused of involvement in the 1998 East African embassy bombings, bringing an end to arguments in the trial of the first CIA and Guantánamo detainee to be transferred to civilian court (CNN, NYT). Defense lawyers reiterated their claims from the trial, that their client was an unwitting actor in the planning phase of the bombings, who was duped by older and more "worldly" al Qaeda planners (CBS). However, the prosecution on Nov. 8 argued that Ghailani was a "mass murderer," and U.S. Attorney Harry Chernoff told the jury, "This is Ahmed Ghailani. This is al-Qaida. This is a terrorist. This is a killer…I’m asking you to return a verdict of guilty on all counts" (Washington Post, Bloomberg, Reuters).

Goings-on at Gitmo

A U.S. Appeals Court this week took the rare step of overturning a decision made in March to grant the habeas plea of Guantánamo detainee Mohammedou Ould Slahi, accused of having ties to several 9/11 hijackers and an admitted former member of al Qaeda (Miami Herald, CNN).

Also last Friday, an Algerian court cleared a former Gitmo detainee, Sofiane Hadarbache, or terrorism charges (AP). And the Republican Congressman who will likely head the House Homeland Security Committee, Peter King, said Nov. 8 that preventing President Barack Obama from transferring Gitmo detainees to U.S. prisons will be one of his "main priorities" (Reuters). Politico looks at the stark gulf between Republicans and President Obama on terrorism issues, including the future of Gitmo (Politico).

Trials and Tribulations

  •  Farooque Ahmed, arrested last week as part of an FBI sting operation for allegedly scouting D.C.-area metro stations and planning an attack, appeared in court November 9 to plead not guilty to the charges, and waive his right to a speedy trial (CNN). In a search of Ahmed’s home, police reportedly found three guns and a biography of Anwar al-Awlaki.
  •  Senator John Kerry, the Chairman of the Senate Foreign Relations Committee, reportedly told Sudanese officials that the country could be taken off the United States’ list of state sponsors of terrorism, if the country does not interfere with a referendum on the independence of South Sudan, scheduled for Jan. 9 (WSJ).
  • French police have arrested five individuals who were reportedly plotting to commit terrorist acts in France, including the assassination of the rector of the Paris Grand Mosque (NYT). German police last Friday arrested an 18-year old man on charges that he made three internet videos threatening attacks in Germany if Daniel Schneider, the head of the so-called Sauerland Cell, is not released from prison (NYT).
  • On Nov. 9 the wife of Zachary Chesser, a presence in online extremist forums who pled guilty last month to trying to provide material support to the Somali al-Shabaab movement, pled guilty to making false statements to investigators and was ordered to leave United States within 120 days (CNN).
  • This past Saturday marked the first anniversary of the shootings at Ft. Hood, Texas, allegedly committed by Maj. Nidal Malik Hasan, which killed 13 and wounded 32 (AFP). Hasan is currently undergoing pre-trial hearings in a military court.

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