The fact that many immigrants are denied asylum status only because they missed the deadline is a failure of the system, according to a report released today by National Immigrant Justice Center, Human Rights First and Penn State Law’s Center for Immigrants’ Rights. The study looked at asylum hearing records from the Board of Immigration Appeals and found that about 20 percent missed the one-year filing deadline. Of those, about half were denied asylum based only on missing the deadline. Immigrants can be denied asylum status for a number of other reasons, such as a determination by the Board that their claims of persecution are illegitimate.

Applicants can include children under the age of 21 and spouses in their applications, but at times, the report found, the Board ruled differently on husbands and wives. In at least two cases the report referenced, married couples were separated after filing after the one-year deadline, with the courts allowing the husbands to remain in the country but deporting the wives.

It is understandable that U.S. Citizenship and Immigration Services would create a deadline — after all, the agency must eventually get a chance to determine whether to grant asylum status to immigrants already in the country. Still, as the Obama administration touts its commitment to refugees and asylum, the continued deportation of immigrants who would likely be given asylum status except for a deadline seems contrary to the goals of the process.

Holder is scheduled to testify today to the House Judiciary Committee this morning. In advance of a possible colloquy on weakening Miranda, as Holder suggested during Sunday show interviews, the three retired FBI special agents — Jim Clemente, Joe Navarro and Jack Cloonan (Cloonan was part of the FBI’s bin Laden unit) — write: “If we abandon our laws and apply draconian methods in response to terrorist threats, then the terrorists and their quest for lawlessness will have won.” That victory, they say, will “jeopardize our ability to bring those terrorists to justice later.” They don’t want any legislative tinkering with Miranda, fearing new rules that will “unnecessarily constrain law enforcement officials and hinder their ability to adapt to unforeseen situations.”

The FBI agents’ letter, written under the aegis of Human Rights First, is below:

President Barack Obama
The White House
1600 Pennsylvania Ave. NW
Washington, DC 20500
May 13, 2010

Dear Mr. President,

We write to express concern about reports that your administration is considering modifications to the public safety exception to Miranda v. Arizona. As professional interrogators who have spent decades questioning accused criminals – including spies and terrorists – we are writing to make clear that interrogators can do their job using the existing Miranda rules. No changes are necessary. In fact, changes might do more harm than good.

Miranda rights are important and play a vital role in our work. As interrogators who have sat across the table from those who seek to harm our nation and its citizens, we assure you that existing Miranda rules are nimble enough to handle situations as they arise.

In fact, when the Supreme Court recognized a public safety exception to Miranda, it highlighted the importance of trusting the instincts of law enforcement professionals in dangerous situations. “The exception which we recognize today, far from complicating the thought processes and the on-the-scene judgments of police officers, will simply free them to follow their legitimate instincts when confronting situations presenting a danger to the public safety.”

Legislating on this subject could very well result in rules that unnecessarily constrain law enforcement officials and hinder their ability to adapt to unforeseen situations.

In our decades of working in law enforcement, including the years following 9/11, Miranda rights never interfered with our ability to obtain useful information or make prosecutable cases. Miranda doesn’t undermine the ability to bring criminals to justice, incompetent investigators and untested laws do. We must not abandon our nation’s fundamental rule of law in the name of preserving public safety and convicting terrorists. If we abandon our laws and apply draconian methods in response to terrorist threats, then the terrorists and their quest for lawlessness will have won. What’s more, their victory will jeopardize our ability to bring those terrorists to justice later.

We urge you to stand up for the rule of law and the ability of interrogators to effectively do their job.

Jim Clemente
FBI Special Agent (Ret.)

Jack Cloonan
FBI Special Agent (Ret.)

Joe Navarro
FBI Special Agent (Ret.)

Now a coalition of human rights organizations, several of which sent representatives to Guantanamo to observe Khadr’s hearing, has written to the officer who issued the ban, Marine Col. Dave Lapan, to protest their exclusion. The ban is “counter to the U.S. administration’s stated commitment to transparency in government,” the coalition writes, and “will also bring the military commissions into further disrepute, internationally and within the United States.”

The full letter — signed by Human Rights First, Human Rights Watch, Amnesty International, the American Civil Liberties Union and the National Institute of Military Justice — is below:

Dear Colonel Lapan,

We are writing to express our serious concern about the Defense Department’s decision to ban four journalists – from The Miami Herald, the Toronto Star, the Globe and Mail and CanWest Newspapers of Canada – from covering future military commission proceedings at Guantánamo Bay on the grounds that they had revealed the name of a witness in violation of rules governing media reporting of the commissions.

We consider that this move by the Department of Defense not only runs counter to the U.S. administration’s stated commitment to transparency in government, but will also bring the military commissions into further disrepute, internationally and within the United States.

As you know, the witness who appeared in Omar Khadr’s pre-trial hearing, identified by the prosecution as “Interrogator No. 1,” had previously been the subject of a widely publicized military court-martial in 2005 that resulted in his conviction for detainee abuse committed at the Bagram airbase in Afghanistan in 2002. His connection to the Khadr case had also previously been revealed from information he himself gave in an on-the-record interview to a reporter at the Toronto Star. That reporter, Michelle Shephard, who wrote a book about Omar Khadr, is now one of those being banned from future commission hearings simply for reporting the same information that had previously been widely published and disseminated.

Whatever confidence the public in the United States and around the world may maintain in these proceedings can only be eroded by a move that is perceived as being motivated by a clampdown on informed media reporting rather than the protection of classified or confidential information.

Because the proceedings are based at Guantánamo and are open only to a select number of journalists, military personnel and NGO observers, continuing access to these proceedings by knowledgeable and experienced reporters – such as the four here – is even more important than it would be in an ordinary federal trial, open to the general public.

We urge the Department of Defense to reconsider what we believe is an ill-advised decision to exclude these reporters.

Thank you for your consideration.

Sincerely,
Human Rights First
Human Rights Watch
Amnesty International
American Civil Liberties Union
National Institute of Military Justice
cc: Douglas Wilson, Asst. Sec. of Defense for Public Affairs
Bryan Whitman, Deputy Assistant Secretary of Defense for Media Operations
Vice Adm. Bruce McDonald, Convening Authority, Military Commissions

Retired Army Maj. Gen. William Nash, who served in Vietnam, the Gulf War and Bosnia, said he got “worked up” reading the Post’s story this morning:

“Any time you do something hard, there’s a time where maybe you have second thoughts. That’s the time any good leader has got to remind himself about the story about ‘steady boy steady.’… The machinations of those who are afraid of these terrorists, who are afraid of American laws, who are afraid of this process that lived by under the rule of law for many many years — centuries — this is not the time to allow them to have their fear drive us away from doing the right thing… This is not the time to be scared. This is not the time to accomodate those who have led the country through an aura of fear for eight years. it’s time to do the right thing and persevere through.”

Retired Army Lt. Gen. Harry Soyster, a former director of the Defense Intelligence Agency, had harsher words:

“My concern is what it looks like to our enemy. And they certainly should be delighted in what appears to be great confusion, great ambiguity and inability to address the issue, so they should feel they are making progress if in fact our initial stand is reversed. from my perspective, the president [initially] chose chose the harder right over the easier wrong when he made the stand, supported his attorney general…and he should hold firm to that.”

Soyster rejected any trade, pushed by Sen. Lindsey Graham (R-S.C.) and White House Chief of Staff Rahm Emanuel, that would involve closing the detention facility at Guantanamo Bay in exchange for a military tribunal for Khalid Sheikh Mohammed. “Both should be done,” Soyster said. “Guantanamo should be closed and the [KSM] trial should be done in an Article 3 federal court… We need to do the right thing.”

Retired Navy Real Adm. John Hutson, the Navy’s Judge Advocate General from 1997 to 2000:

“If you were from Mars and you came to earth and were told there were two options for prosecuting these guys. And one of them was federal courts, where we’ve done 200 of these [terrorism] cases over the last nine years, 90-percent-plus conviction rate, people successfully imprisoned, experienced judges, experienced prosecutors and all of that. Or you could go to a military commission which the Supreme Court has already struck down once, they’ve got three cases [with] two guilty pleas — both of those guys are out of jail — no experienced judges, no experienced prosecutors and a tenuous judicial system at best which is untried up to now in any real sense — which one you choose is pretty clear. Then you put on top of that the Constitution very clearly provides the president in his capacity as commander-in-chief is responsible for the prosecution of the war — and I would argue all of this is part of that responsibility, in how we go forward with the war — and the Department of Justice is responsible for the prosecution of federal prisoners, it’s clearly in the authority and the responsibility of the executive branch to do this.”

Donald Rumsfeld called the Gitmo detainees "the worst of the worst." (Wikimedia Commons)

In February 2004, Ubrahim Ahmed Mahmoud al Qosi was charged with conspiring with al Qaeda in Afghanistan, Pakistan and elsewhere to attack and murder civilians and destroy property. The government claimed that al Qosi was an armed guard and driver for Osama bin Laden going back to 1996, provided logistical services and supplies for an al Qaeda compound in Kandahar, and traveled to to Kabul to fight with an al Qaeda mortar crew near the front lines.

Al Qosi was never tried on those charges, however, because in 2006 the U.S. Supreme Court declared the military commissions unconstitutional and a violation of the Geneva Conventions. Congress re-created the commissions with a new law later that year, and Al Qosi was charged again in 2008.

[Law]Then in January, just after President Barack Obama took office, he suspended the 2006 military commissions while he decided what to do with them.

Now, about a dozen military commissions cases that were left in limbo are being revived. And, the government is sending more suspected terror cases for trial there – either at Guantanamo Bay, where they’re currently located, or in Thomson, Illinois, where they could be moved. Judging from recent protests against sending the suspected co-conspirators of the September 11 attacks to civilian trials, some might think that convicting terror suspects in a military commission would be easier. But the new Military Commissions Act, passed by Congress in October and signed by the President, is an untested military system that, like its earlier incarnations, is ripe for constitutional challenge. Whether it will provide the swift justice the Obama administration and others hope for remains to be seen.

The case of al Qosi, now being heard before the new military commission, highlights the sorts of problems that lawyers say are likely to come up in many military commissions trials. Most importantly, they include a range of constitutional challenges to the new military commissions law itself, from whether its jurisdiction inappropriately extends beyond war crimes to include ordinary criminal acts, to whether the law’s permissiveness about the use of hearsay evidence against terror suspects violates their rights to confront and cross-examine the witnesses against them.

Although the case has been pending for almost six years now, at a hearing earlier this month, the government announced for the first time that it wanted to add more charges against al Qosi alleging he participated in a conspiracy with al Qaeda dating back to 1992. That’s also the date that Osama bin Laden allegedly began urging others to attack the United States, according to a U.S. criminal indictment of bin Laden. If the government can show that al Qosi participated in the conspiracy dating back to that time, then he could be held responsible for all of the crimes it committed between 1992 and 2001, when he was captured.

“That’s the way the conspiracy charge works,” said Andrea Prasow, senior counterterrorism counsel for Human Rights Watch, who attended the military commission hearing at Guantanamo Bay in al Qosi’s case earlier this month. “You don’t need to have participated in all of the acts that the conspiracy carried out.”

Advised of the four years’ worth of new charges only hours before the government sought to add them, Navy Cmdr. Suzanne Lachelier, al Qosi’s lead military defense lawyer, protested, calling them “sweeping changes” that would require al Qosi’s defense team to travel to Somalia, Ethiopia and Chechnya to prepare for a trial.

At the hearing, the judge rejected the government’s request to add more charges to the current case against al Qosi, but said it could withdraw the case and refile it with those new claims. If prosecutors do that, however, it will only highlight one of the tenuous bases for the new military commissions, which is its broad jurisdiction.

The crimes the government wants to add in al Qosi’s case did not even take place in the United States or against it. But under the new Military Commissions Act, they can be considered part of a larger conspiracy to attack the United States, and al Qosi’s support for al Qaeda in that period can be considered a war crime.

“It’s absurd in these circumstances,” said Prasow. “But in a conspiracy, the action that the defendant has to take doesn’t need to be criminal. It can be cooking for people, as long as you have a meeting of the minds of all the participants. The government will argue that joining al Qaeda is a meeting of the minds, and a joining of the intent to carry out bad things.”

“We are breaking new ground,” conceded Navy Cmdr. Dirk Padgett, the military commissions prosecutor, at the hearing, according to a blog post Prasow wrote from the hearing at the time. Prasow says the prosecutor defended his bid to reach back to 1992 because “the planning, the conspiracy began years before.”

But are conspiracy to attack and providing substantial support for those attacks even war crimes prosecutable by military commission? That’s not at all clear.

Lachelier last year moved to dismiss the case against al Qosi on the grounds that neither of these charges have traditiionally been considered war crimes, so the military commissions don’t legitimately have jurisdiction to prosecute them.

In fact, that could pose a serious problem for this latest incarnation of the military commissions, as even the Justice Department has acknowledged. In July, Assistant Attorney General David Kris testified before the Senate Armed Services Committee that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.”

Congress enacted the Military Commissions Act of 2009 with its broad jurisdiction anyway, and despite senior Justice Department officials’ own doubts, the government is proceeding to prosecute al Qosi for conspiracy and providing “material support” to al Qaeda. Those charges “continue to fly in the face of traditional understandings of law of war violations,” wrote Devon Chaffee, advocacy counsel for Human Rights First, in a blog post she wrote after attending the al Qosi hearing.

Indeed, when the MCA was enacted in October, civil liberties and human rights group objected in large part because it swept into untested military commissions with unknown rules ordinary crimes that have been successfully tried and appropriately belong in federal court.

Now, it’s not clear what is legitimate in the newly reconstituted commissions. “You don’t know what law applies,” Lachelier said of the military commissions. “You pick and choose. You try to draw from international and federal precedent.” How the commissions will use those remains unclear, however.

Another potential challenge to any conviction by the commissions, Lachelier explained, is that the military commissions allow the use of hearsay testimony in circumstances where it would be inadmissible in a federal court. That, too, could become a constitutional problem if convictions are appealed. “The right to confrontation is still significantly diminished in the military commissions,” Lachelier said, referring to the right to the Constitution’s Sixth Amendment right to confront and cross-examine witnesses. If the government claims the witnesses are not available, “these could be trials on paper,” she said.”That’s not what the confrontation clause and the Supreme Court would allow.”

Recently, Lachelier filed four more motions in al Qosi’s case. She claims that the military commission lacks jurisdiction over her client because the prosecutor hasn’t proved he’s an “unprivileged enemy belligerent” — meaning he was a member and substantial supporter of al Qaeda. She also claims that the Military Commissions Act is an unconstitutional Bill of Attainder, meaning a law designed only to punish a certain group of people (in this case unprivileged enemy belligerents), and that it violates the equal protection clause of the U.S. Constitution because it applies only to aliens (non-citizens).

Many of these claims have been made in military commission cases before. But since this is a new commission with no binding legal precedent, it will have to decide these issues all over again. “The question is, what law applies?” asked Lachelier. “And how will the commission interpret it?”

Ultimately, it may be the Supreme Court that answers these questions, probably several years from now. And if the court holds that Congress and the President overreached in the MCA of 2009, the government’s prosecution of Mahmoud al Qosi, and any other terror suspects charged before the new military commissions, will have to start all over again.

“These are all still open issues,” said Lachelier. “There are so many moving parts.”

“A 2005 congressionally authorized bipartisan commission found that it wasn’t appropriate to detain asylum seekers in prisons,” said Franken. “That was four years ago. Now they’re still being detained in prison, put in jumpsuits and shackles. They’re even put in solitary confinement,” he said. “They aren’t criminals.”

Napolitano responded that part of the agency’s detention reform process, still being implemented, is “to really do a risk analysis for every individual who comes into our system.”

Franken persisted. “There’s a credible fear interview. Very often they continue to be detained even after it’s been determined that they have a credible fear if they go back.”

Napolitano did not deny the problem. “We’re working with officers to increase the speed by which they are paroled into the country if there has been a determination of credible fear.”

According to a recent report on the detention of asylum seekers by Human Rights First, the U.S. detention system for asylum seekers “is inconsistent with international refugee protection and human rights standards.”

Over the weekend, news reports revealed that terror suspects are being held in a secret part of the prison at that Bagram air base for interrogation. They’re denied access to the International Committee of the Red Cross, and some have claimed they’ve been subjected to abuses, including sleep deprivation, sexual humiliation and other maltreatment similar to the sorts of interrogation abuses that occurred during the Bush administration.

Human Rights First is now calling for a full investigation of the so-called “black prison” at Bagram and the alleged abuses there.

“These allegations raise serious questions about whether reforms initiated by the Obama administration are being properly implemented and about whether they are sufficient to end torture and detainee abuse,” the organization wrote in a letter sent yesterday to Afghanistan Commander Vice-Admiral Robert Harward. “If substantiated, the alleged conduct of detaining authorities is in violation of U.S. law, including the Detainee Treatment Act, and the 2006 Army Field Manual, which is applicable to all U.S. government agencies. It is also in violation of international law, including Common Article 3 of the Geneva Conventions, the International Covenant on Civil and Political Rights, and the Convention against Torture.”

The letter asks that the results of the investigation be made public and that the perpetrators of abuses be held accountable.

“Some have opposed the closing of Guantanamo because they believe there is no viable alternative approach to handling terrorist suspects,” said Thomas Pickering, former Undersecretary of State for Political Affairs and former U.S. Ambassador and Representative to the United Nations, in a statement released yesterday. “This declaration presents a careful plan for finally bringing terrorists to justice in full keeping with our Constitution, as well as for protecting our nation’s values, security, and commitment to our international obligations.”

The bipartisan declaration, coordinated by Human Rights First and the bipartisan Constitution Project, opposes indefinite detention without charge and supports the trial of all terrorism suspects in federal courts.

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

As the Obama administration nears its deadline for deciding where to try the men suspected of masterminding the Sept. 11, 2001 terrorists attacks, there are strong indications that those trials could take place in federal courts in the United States. That’s prompting fervent opposition from Republicans, who say the 9/11 terrorists should never be allowed anywhere on U.S. soil, let alone in a civilian U.S. court.

Illustration by: Matt Mahurin

Military Commissions lead prosecutor Capt. John F. Murphy told reporters in September that four different U.S. attorneys offices in New York, Washington and Virginia were vying for the opportunity to try the five now-infamous defendants, which include Khalid Sheikh Mohammed, the self-described mastermind of the attacks on the World Trade Center and the Pentagon. Walid Muhammad Salih Mubarek Bin ‘Attash; Ramzi Binalshibh; Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi are the other four. According to Murphy, the Eastern and Southern Districts of New York, based in Brooklyn and Manhattan, respectively; the Eastern District of Virginia, based in Alexandria; and the District of Columbia had all submitted requests to hold the high-profile trials in their courthouses, and to detain the suspects in their jails during trial. The military commissions are also seeking to try the defendants.

Meanwhile, White House lawyers, a task force advising the president, and President Obama have all said that their preference is to try terror suspects in federal courts whenever possible, although they have not ruled out the possibility of using military commissions to try some of them. It remains unclear which ones.

The administration has promised to make its final decision on where to try the 9/11 suspects by Nov. 16. Fearing that the administration is inching toward bringing them to New York City or the Washington, D.C., area, opponents of trying high-level terrorists in U.S. federal courts are stepping up their efforts to keep the five men out of the United States for any purpose. On Oct. 9, Sen. Lindsey Graham said he’d attached an amendment to an appropriations bill that would prohibit the Obama administration from spending money on prosecuting and trying these five alleged terrorists in U.S. civilian federal courts.”Khalid Sheik Mohammed needs to be tried in a military tribunal,”Graham told McClatchy Newspapers. “He’s not a common criminal. He took up arms against the United States.”

Graham is not alone in that view. In August, he joined Sens. Joe Lieberman (I-Conn.), John McCain (R-Ariz.), and Jim Webb (D-Va.) in sending a letter to President Obama expressing concern over reports that the Administration may try Khalid Sheik Mohammed and other alleged war criminals in civilian courts. The senators urged the administration to try them in military commissions instead, saying in part:

The bill, H.R.2847, is pending in the Senate as an amendment to an appropriations bill.

On Tuesday, former Attorney General Michael Mukasey made a similar argument against allowing the 9/11 defendants to be tried in a civilian federal court in an op-ed in The Wall Street Journal. Mukasey warned that the costs and burdens of security would be enormous, that housing suspected terrorists in U.S. prisons would threaten national security, and that a public trial would elicit sensitive evidence that would compromise intelligence sources and that terrorists will later use against us.

Those sorts of arguments outrage many legal experts and former military officers, who say that only a public trial in a U.S. federal court that affords terror suspects the same rights as all ordinary criminal suspects will carry the legitimacy necessary for such an important trial. And they dismiss the claims that housing terrorists in U.S. maximum security prisons, where terror suspects have been imprisoned for many years, would create any danger at all.

“The federal criminal justice system has adjudicated nearly 200 cases involving international terrorism in the year shortly before and since 9/11,” said Gabor Rona, International Legal Director of Human Rights First, which opposes the use of military commissions to try any Guantanamo detainees. “The idea that it cannot handle classified evidence, evidence from abroad, evidence obtained in the context of armed conflict, all of those have been proven false by the existence and the adjudication of all of those case in the federal criminal justice system, and many of those cases feature precisely those problems.”

“The bulk of resistance to bringing Guantanamo detainees to the U.S. is simply uninformed,” Rona continued. “The ‘not in my backyard idea,’ which I think is a crazy notion of people fearing that they’re going to have to be sitting next to a member of al-Qaeda when they go into Starbucks, is just nuts. We’re not talking about releasing suspected or known terrorists into the streets. We’re talking about transferring them to highly secure correctional and detention facilities for purpose of trial. If they’re found not guilty or guilty and they serve sentences, they’re still not entitled to be in the U.S., they will be deported. I think the administration is confident, and should be confident about being able to convey that this is not a situation that involves risk to Americans.”

Some former military officials hope the president will see it that way as well. On Tuesday, a group of retired generals sent an open letter to Congress, kicking off a campaign to close Guantanamo Bay and have the detainees brought to the United States for federal court trials.

“With 145 convicted international terrorists being held in our prison system, there has been no escape from a supermax correctional facility in the United States,” said retired Lt. Gen. Robert Gard, Chairman of the Center for Arms Control and Nonproliferation, on a conference call with reporters on Tuesday. “It does not threaten the security of this country to move however many of the remaining 226 detainees that we cannot farm to other countries or try and incarcerate, to move them from Guantanamo into our supermax facilities. The claim from members of Congress that this threatens American security is shameful and without a basis.”

Still, even some civil libertarians believe it would be legitimate for the administration to try the Sept. 11 suspects in military commissions at Guantanamo Bay or on U.S. military bases. “Our view is that as a legal matter, the 9/11 conspirators, unlike some other detainees at Guantanamo, could be tried in either federal court or military commissions,” said Kate Martin, director of the Center for National Security Studies. “Then it’s a matter of policy considerations.”

Although Martin says a defendant could get a fair trial in a military commission, that’s not necessarily the case under the current Military Commissions Act, even if recent amendments passed by the House were adopted. “One of the hallmarks of a fair trial is that it’s public,” and the military commissions have so far severely restricted public access. “If they choose the forum based on an interest in keeping parts of the trial secret, then they will lose their legitimacy right there,” she said.

Some military commission critics claim that one reason some Republicans support using military commissions is to keep hidden any evidence that the detainees were tortured by U.S. authorities, which the defendants or their lawyers would almost certainly present in their trials.

“There is a second objective in everything that someone like Mukasey is saying,” said American Civil Liberties Union attorney Denise LeBoeuf, who directs the John Adams Project, which organizes defense lawyers to represent the Guantanamo detainees. “That is covering up the details and the identities of torturers. This country had a systematic system of torture through the military and through contractors. Some of those people objecting to federal court trials now either implemented it, or knew about it and should have said something,” she said, adding that some are still in the administration and have an interest in preventing the information from surfacing.

Indeed, according to Justice Department memos revealed earlier this year, Khalid Sheikh Muhammed was waterboarded 183 times. Details of his treatment would likely come up in his defense, if he were to present one. On the other hand, he has confessed and even boasted to having masterminded the attacks numerous times, and has said he does not want a lawyer and wants to be martyred. He still could bring up his treatment by U.S. authorities in a trial, however.

LeBoeuf and other lawyers involved in the defense of high-level detainees say they’ve heard rumors that the administration wants to try the 9/11 detainees in federal court, but it’s impossible to know for sure what U.S. officials will do until they issue their decision.

To LeBoeuf, the fact that the 9/11 case is so high-profile is a strong reason for trying the suspects in public, in a civilian federal court in the United States.

“When you say the whole world is watching a case, this is the one,” LeBoeuf said. “This is the one where the administration has the greatest urgency and pressure to do it in a fair court. It’s also the one where there are mountains of evidence — for both sides. It’s the most investigated crime in the history of the United States. If you can’t put this case into a federal court, then what case can you?”

“Both the Bush and Obama administrations have previously relied upon the state secrets privilege to block litigation challenging policies ranging from warrantless wiretapping to extraordinary rendition, and our organizations welcome the new policy as an important first step in bringing much needed reform to the use of this doctrine,” the letter said.

However, the new policy does not address all the problems, the organizations wrote. “To ensure proper oversight and an independent check on executive discretion, judges must be able to review the evidence, order the creation of non-privileged substitutes where appropriate, and assess whether there is sufficient non-privileged evidence to enable a case to proceed,” the letter said. “Legislation is necessary to implement these key reforms.”

The seven organizations who signed onto the letter are the American Civil Liberties Union’s Washington Legislative Office, the Brennan Center for Justice, the Center for Democracy and Technology, the Constitution Project, Human Rights First, the National Security Archive, and OMB Watch.

The legislation they’re supporting has been introduced in the Senate as the State Secrets Protection Act: S. 417, sponsored by Senator Patrick Leahy (D-Vt.), and in the House as H.R. 984, sponsored by Representative Jerrold Nadler (D-N.Y.).