The LWOT: House effectively bans Gitmo closure, KSM civilian trial; Judge dismisses Awlaki targeted killing lawsuit

House effectively bans Gitmo transfers, KSM civilian trials

By a vote of 212-206 Congress on Dec. 8 approved a provision, secreted away in a vital omnibus spending bill authorizing the government’s spending through next year, banning the use of government funds to transfer to the United States or try in civilian courts Guantánamo Bay detainees, and specifically 9/11 plotter Khalid Sheikh Mohammed (AJE, AP, BBC, Lawfare Blog). The passage of the bill surprised some observers given the still Democratic majority in the House of Representatives. If the bill passes the Senate and gets approval from President Barack Obama, it would effectively eliminate any chance for Guantánamo’s closure or a civilian trial for KSM before at least next September, when the funding provisions expire (Politico, Telegraph).

The administration and the Justice Department virulently opposed the provision, with U.S. Attorney General Eric Holder writing a letter to Senate Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY), calling the legislation "an extreme and risky encroachment" on Executive authority. He continued (NYT, Miami Herald, CBS):

This provision goes well beyond existing law and would unwisely restrict the ability of the executive branch to prosecute alleged terrorists in federal courts or military commissions in the United States as well as its ability to incarcerate those convicted in such tribunals.

The vote came on the heels of a brief unclassified report (available here) required by the 2010 Intelligence funding bill and released by the Office of the Director of National Intelligence on Dec. 7 suggesting that nearly 25% of Gitmo detainees released, about 150 out of 598, had either returned or were suspected to have returned to militant activity (CNN, WSJ, Miami Herald, Bloomberg, NYT).While the overwhelming majority of the detainees were released under President Bush, the report states that out of 66 detainees released under Obama, two are "confirmed" to have returned to militancy, while three are "suspected" of such actions (Washington Post, ABC). The number is an increase from last year’s Department of Defense analysis that roughly 14% of detainees had returned or were suspected of having returned to the battlefield, though the White House pushed back on critiques of detainee transfers and the overall policy of closing Gitmo (ABC).

WikiLeaks founder Julian Assange reportedly has the personal files of every Gitmo detainee, sensitive information that could reveal internal government analysis of the threat posed by detainees, including some who have been released from the prison (NYT, Reuters).  And Lyle Denniston has a helpful primer on the eight detainee-related cases seeking review in the Supreme Court (SCOTUS Blog).

Judge dismisses Awlaki targeted killings lawsuit

In a ruling filed Dec. 7 (available here) Federal Judge John Bates dismissed the lawsuit filed on behalf of radical cleric and alleged Al Qaeda in the Arabian Peninsula (AQAP) figure Anwar al-Awlaki by his father, represented by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) on the grounds that Awlaki’s father does not have standing to bring suit in the case (Washington Post, CNN, Reuters, AJE). While the ruling was made on procedural grounds, Bates also wrote that the case poses "stark, and perplexing, questions" about the government’s ability to target a citizen based merely on the assertion of his membership in a terrorist group.

However, Bates ultimately ruled that targeting decisions in a time of conflict are political and in this specific case could not be evaluated by the court (NYT).The ruling thus does not grant, according to Bates, "unreviewable authority" for the government to target its own citizens (Politico). And while Bates did not rule on the government’s reluctant invocation of the state secrets doctrine, he indicated that it would have likely succeeded (Lawfare Blog). The plaintiffs have reportedly not decided if they intent to appeal the ruling or not.

The success of the standing argument rests, according to Bates, on the evidence that Awlaki was not incommunicado during the period he was being targeted, and had clearly chosen not to avail himself of his Constitutional rights as a citizen. However, as former Bush administration lawyer Jack Goldsmith points out, Bates’ ruling still found that a terrorist abroad could still have standing in a U.S. court, and affirmed the protections guaranteed Awlaki should he want to challenge his targeting, even if done via remote connection (Lawfare Blog).

Maryland man arrested in sting operation

Authorities on Dec. 8 arrested Antonio Martinez, a U.S. citizen and recent convert to Islam, on charges (criminal complaint available here) that he attempted to set off an FBI-supplied inert explosive outside of an army recruiting station in Maryland (Washington Post, CBS, AFP, NYT,  Lawfare Blog). Martinez, who changed his name (though not officially) to Muhammad Hussain, reportedly came to the attention of federal authorities after a confidential informant showed them Martinez’ Facebook postings starting in late September about violence in the name of Islam and his desire to fight American troops in Afghanistan and Pakistan (LAT, Reuters).

The FBI then initiated contact with Martinez, eventually introducing him to an "Afghani brother" who was actually an FBI agent, who offered to help Martinez build a bomb. According to the complaint Martinez was recorded speaking about his obsession with jihad, his attachment to the sermons of radical cleric Anwar al-Awlaki, and his desire to strike the U.S. military (ABC, VOA). The arrest is one in a string of similar sting operations in the last two years, and the White House said the operation showed the need for "vigilance" against domestic terrorism (AP, CNN).

Martinez’ radicalization was reportedly driven largely through the internet, though he bounced from religion to religion, and even allegedly considering joining the military before his conversion, and clashed with his mother about his new religion (AP, LAT).  Dina Temple-Raston reports on concerns among authorities about the radicalization of  some Latino converts to Islam, while Paul Cruickshank and Tim Lister explore the world of internet jihad (NPR, CNN).And a leaked Department of Homeland Security report details concern about efforts from jihadist supporters and terrorist groups to recruit and disseminate information using Facebook (Fox).

Trials and Tribulations

• On Dec. 7 the United States State Department listed U.S.S. Cole bomb plotter and purported key AQAP figure Fahd al-Quso as a "specially designated global terrorist" freezing his assets in the United States and forbidding Americans to engage in transactions with him (State, AFP, WSJ).
• Mohamed Wali Zazi, whose son Najibullah Zazi pled guilty earlier this year to plotting a bomb attack against New York’s Subway, pled not guilty Dec. 9 to charges that he obstructed evidence and lied to authorities during the investigation of his son’s plot (AP). And Adis Medunjanin, accused of involvement in the plot, sought to have statements he made to police after his arrest, which Medunjanin claims were made after police threatened to arrest his family, suppressed (WSJ).
• A document released by the website WikiLeaks details suspicions of diplomats stationed in Morocco that six defendants sentenced as part of the terrorism trial of Abdelkader Bellraj were punished for their political connections, rather than any links to terrorism (Legal Lift). And according to another document, American television programming rebroadcast to Saudi Arabia – such as Desperate Housewives and The Dave Letterman Show – were having a more positive impact on impressions of the United States than U.S. government-funded programming in the region, such as al-Hurra (Guardian, Time).
• The Pentagon mental health evaluation continued this week for Maj. Nidal Malik Hasan, accused of killing 13 soldiers in a shooting last November at Ft. Hood (CNN). If deemed competent Hasan will go before a courts martial, which could sentence him to death if he is found guilty.