Today, prosecutors in the Office of Military Commissions announced they intend to ask the convening authority to refer new charges under the recently-enacted Military Commissions Act of 2009 against Ahmed Mohammed Ahmed Haza al Darbi, in connection with his alleged involvement in an al Qaeda conspiracy to attack military and commercial shipping in the Port of Aden and the Straits of Hormuz.

This announcement follows the attorney general’s determination on Nov. 13, 2009, that a military commission was the appropriate forum for prosecution of al Darbi.

al-Darbi has apparently not actually committed an act of terrorism, but if prosecutors are correct about his attendance at an al-Qaeda training camp, they have more than enough to convict him for conspiracy. So why try him in a military commission and not a civilian court? Even if the Obama administration has a compelling answer, don’t look for an answer today, as it’s right before Thanksgiving, an ideal time to drop a controversial decision without explaining it.

As I reported a few months ago, because the U.S. has declared war against Al Qaeda–and KSM is quite obviously a member of Al Qaeda–they can claim legal authority to detain him even post-acquittal, until the end of hostilities, under the authority granted by the Authorization to Use Military Force. The Bush administration considered doing this briefly with Osama bin Laden’s limo driver, Salim Hamdan–but because it makes a mockery of the American system of justice, they decided against it. But the options don’t actually end there.

“They have three sources of authority that would allow him to detain him, one of which is the AUMF, because it directly cites the 9/11 attacks in its language–the people who planned the 9/11 attacks are combatants, and are detainable under the AUMF,” Ken Gude, a human rights expert at the Center for American Progress explains. “Under the .000001 chance that they are acquitted, they will have that authority to detain them,” Gude says.

I’m awaiting all the liberty-loving Tea Partiers to start ranting about Obama Show Trials any minute now.

[O]fficials and observers here differ over whether the inversion of the groups’ traditional power dynamic has led to better or worse relations. Indeed, it may be bringing al-Qaeda closer to certain Taliban factions — most notably, forces loyal to former Taliban cabinet minister Jalaluddin Haqqani — and driving it apart from others, including leader Mohammad Omar’s Pakistan-based group. The shifting alliances, analysts say, could have significant bearing on where the U.S. military chooses to focus its firepower.

That appears to track with the Obama administration’s desired goal of splitting the Taliban coalition and encouraging reconciliation with the Afghan government. Which in turn means either the intelligence is reflecting fanciful administration thinking or the administration has a solid intelligence grounding for its approach.

I also like this cheeky tweak at the counterinsurgency community:

This year, Omar’s military committee published a rule book for followers, calling on them to protect the population and avoid civilian casualties — much like U.S. counterinsurgency principles. He has railed against the corruption of President Hamid Karzai’s government, an issue that resonates with Afghans. He has also solicited support from other Muslim countries. But al-Qaeda’s agenda of global holy war and taste for mass-casualty attacks, no matter how many Muslim civilians are killed, complicate that goal.

To say the least!

The Justice Department has said it will not appeal the Sept. 17 order of Judge Judge Colleen Kollar-Kotelly, who granted Al Rabiah’s petition for release in a scathing ruling that criticized the U.S. government and described how interrogators used coercion and abuse to extract false confessions from him. Al Rabiah’s lawyer, David Cynamon, has demanded an investigation from the Senate Armed Services Committee and the inspectors general of the Defense and Justice departments, as well as from Attorney General Eric Holder. He has not received a response.

The situation sounds reminiscent of the case of Mohammed Jawad, an Afghan teenager who a military commission judge had similarly ruled was “tortured” and coerced into confessing to throwing a grenade at U.S. soldiers. The bulk of his case was based on his coerced statements, and was eventually thrown out by the military commissions and dropped by the Justice Department.

Jawad’s military lawyer, David Frakt, complained repeatedly to senior Defense Department officials that he believed U.S. military personnel had committed war crimes in connection with his client. As TWI documented in September, Frakt never received a response, and the matter appears never to have been investigated.

Jawad is now back in Afghanistan. Al Rabiah’s future, however, remains in doubt. Although the Justice Department has said it won’t appeal his order of release, a military commission case is still pending against him.

Yesterday, Jonathan Hafetz, the American Civil Liberties Union lawyer who represented Al-Marri in his challenge to military detention, told The New York Times that the sentence by a federal judge was “a powerful reminder that America’s civilian courts can deliver justice even in the most challenging circumstances.” But David Rivkin, a former Reagan-era Justice Department official and strong supporter of military commissions to try suspected terrorists had a different take. Criminal courts are “ill-suited” to terror cases because the sentences are “a crap-shoot,” he said, adding that military commissions “arrive at a better judgment, being comprised of warriors, as to what level of danger the person poses.”

Al-Marri, a legal U.S. resident living in Peoria, Ill., before his arrest in late 2001, spent almost six years in a U.S. Navy brig in South Carolina without charge, mostly in isolation. Shortly before his case questioning the legality of his indefinite detention on U.S. soil was set to reach the Supreme Court,  the Obama administration transferred him to civilian custody, incarcerated him in a federal prison and prepared for his trial in federal court. But prosecutors agreed to accept a plea bargain, in which Al-Marri admitted that he’d been ordered by al-Qaeda official Khalid Shaikh Mohammed to move to the United States from his native Qatar and await instructions. Al-Marri moved his wife and five children to Peoria and he enrolled at Bradley University, where he had studied earlier. He admitted in his plea that he “researched online information related to various cyanide compounds” and communicated with other al-Qaeda operatives.

When al-Marri was arrested in December 2001 on charges of financial fraud, he hadn’t carried out any terrorist acts. But 18 months after his arrest, the government dropped the criminal charges and named al-Marri an “enemy combatant,” which in the Bush administration’s view, gave the government the right to hold him indefinitely in military custody. He remained at the Navy big, without charge or trial, until February.

Whether it’s legal for the United States to imprison indefinitely a lawful U.S. resident in a military prison on U.S. soil remains an open question, largely because the Obama administration did not give the Supreme Court an opportunity to rule on it. That may have been a strategic move designed to leave open the possibility of using that power again, particularly since President Obama promised to close the Guantanamo Bay prison by January 2010, but hasn’t yet decided what to do with many of the detainees imprisoned there.

For Al-Marri, however, it means he will now serve another eight years in prison. (He faced up to 15 years, but the judge agreed to consider the time he’d already served.) Al-Marri yesterday tearfully apologized for helping al-Qaeda and said he no longer wants to harm the American people.

Notwithstanding Rivkin’s criticism of the federal court’s sentence, it’s worth noting that in the two contested cases where terror suspects were sentenced by military commissions for similarly assisting al-Qaeda, both received lighter sentences. Salim Hamdan, for example, Osama bin Laden’s driver, was sentenced by a military jury of “warriors” to just five and a half years in prison, and given credit for time served. He’s already back home in Yemen. In the other case, Australian David Hicks pleaded guilty to providing material support for terrorism and was sentenced to only nine months in prison. A former kangaroo-skinner, Hicks is now home.

President Barack Obama (WDCpix)

In signing the Defense Authorization Act, which, among other things, amends the laws governing military commissions, President Obama confirmed Wednesday that he plans to keep the controversial military commissions alive. The effect is to deny at least some suspected terrorists — now called “unprivileged enemy belligerents” — the right to a trial in a civilian federal court. And though Obama has promised to use the commissions sparingly, the new law sets up a parallel justice system that could outlive the Obama administration and leave an indelible stamp on its legacy.

Image by: Matt Mahurin

Even those who fiercely oppose trying suspected terrorists in military commissions acknowledge that the months of wrangling over the legislation in Congress led to significant improvements over the Bush-era military commissions approved in the Military Commissions Act of 2006. Still, there are many lingering concerns. The new commissions allow the admission of coerced evidence in certain narrow circumstances. They allow the government to try children as war criminals. And, the new law would allow trials by military commission for offenses that are not traditionally considered war crimes. Those provisions leave even the new-and-improved military commissions vulnerable to constitutional challenge, and their verdicts open to reversal on appeal. And that could undermine the entire purpose of creating military commissions, which is ordinarily to provide swift justice when ordinary courts are not available.

Many legal experts and human rights advocates say the improvements over the 2006 Military Commissions Act are significant.

Under the amendments, an “unprivileged enemy belligerent” — what the Bush administration used to call an “enemy combatant” — is entitled to competent, experienced defense counsel, particularly if the suspect might face the death penalty. The previous commissions did not provide for defense lawyers with significant experience handling capital cases.

The new commissions also require that most statements of the accused must have been “voluntary” to be admitted at trial. That’s in addition to the requirement that the statements were not solicited by torture, or by cruel, inhuman or degrading treatment, as defined by the Detainee Treatment Act. Of course, the Detainee Treatment Act was interpreted by the Bush administration’s lawyer very liberally, so even extreme sleep and food deprivation, stress positions, threatening dogs and confinement with an insect in a small box was deemed lawful under that standard. But adding that the statement must also be “voluntary” — a change pressed by the Obama administration at several Congressional hearings — raises the bar significantly higher.

On the other hand, there is an exception. Statements are admissible even if not “voluntary” if “the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence.”  It remains to be seen how narrowly a judge will construe that.

The admission of hearsay evidence has been narrowed as well. The new law requires whoever introduces the evidence to give the other side enough advance warning to see the evidence and prepare a response, and the judge, in weighing the evidence, must “take into account all of the circumstances surrounding the taking of the statement, including the degree to which the statement is corroborated, the indicia of reliability within the statement itself, and whether the will of the declarant was overborne…” Then, in addition, the judge has to find that the statement is relevant and probative of a fact of the case, that it’s impractical to get direct testimony from the witness, and that “the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.” That essentially mirrors the hearsay exception for evidence provided in a civilian federal court.

As for the admission of classified evidence, the military commission has to follow the same procedures a civilian federal court would to determine how and if the evidence can be used, and to what extent and in what form the accused and his lawyer are entitled to see it.

But if the procedural safeguards are so similar to those in federal court, then why have the military commissions at all? The question is even more important because Congress, in passing this law, defined the court’s jurisdiction to include crimes that are not traditionally war crimes, such as conspiracy, and suspects who are not traditionally considered war criminals, such as those who provide “material support” for terrorism. Even Assistant Attorney General David Kris, testifying before Congress, testified that it’s not clear that those crimes — which are commonly charged against terror suspects in civilian federal courts — can constitutionally be brought before a military commission. Justice Stevens, in the case of Hamdan v. Rumsfeld, in an opinion joined by three other justices, specifically notes that “conspiracy” has not traditionally been considered a war crime. (The court did not ultimately rule on that basis, so it’s not clear how a majority would rule on it now.) Therefore, defense lawyers could argue that for Congress to make it a war crime after the suspect’s crime was committed would be an unconstitutional “ex post facto” law, says Shayana Kadidal, senior managing attorney of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights.

For the administration to bring a terrorism case before a military commission and be sure to avoid this issue, then, it would have to avoid charging conspiracy and substantial support for terrorism. Those charges are made in almost all terrorism cases.

Which raises the question, why bring cases in military commissions at all?

Justice John Paul Stevens in Hamdan argued that the purpose of military commissions is “military necessity.” Yet in this situation, as many legal experts have pointed out, it’s not at all clear that these commissions are necessary.

As the ACLU’s Jameel Jaffer said in a statement released yesterday after the President signed the new law: “The commissions remain not only illegal but unnecessary – the federal courts have proven themselves capable of handling complex terrorism cases while protecting both the government’s national security interests and the defendants’ rights to a fair trial.”

Many other lawyers and advocates agree. A study conducted by former prosecutors for Human Rights First, for example, found that civilian federal courts had successfully prosecuted more than 214 terrorism cases since September 11, 2001. Prosecutors won 195 convictions, and successfully handled the challenges of unavailable witnesses, classified evidence, undercover informants and other complexities that arise in terrorism cases, the report found. By contrast, the military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases. In only one of those did the defendant even put on a defense. In that case, Salim Hamdan, Osama bin Laden’s driver, was sentenced to only five and a half years in prison, with credit for the more than five years he’d already served. He was released to his home country of Yemen in January.

Part of the reason the military commissions have been so ineffective is because they were vulnerable to constitutional challenge. But legal experts say that even the new commissions would be vulnerable. As ACLU attorney Chris Anders put it, “they’ve narrowed the gap, but they still fall far short of the due process guarantees in Article III courts, which will still make them vulnerable to reversals.”

“This is a brand-new system, for the third time,” said Kadidal, referring to the two earlier incarnations of the military commissions during the Bush administration. The first commission system was invalidated by the U.S. Supreme Court, and the second was suspended by the Obama administration.

“This lesser degree of process is not justice,” said Virginia Sloan, president of the bipartisan Constitution Project, in a statement released yesterday. “Furthermore, these modest improvements cannot save the irretrievably tainted military commissions.”

The Obama administration surely knows that these cases are vulnerable to challenge, particularly since Congress included provisions in them that Justice Department lawyers admitted were legally questionable. And it’s not clear that it wants to bring important cases in the military commissions, and risk having convictions of major terrorists reversed on appeal.

What’s more, there’s no “sunset provision” in the legislation, so the military commissions can exist indefinitely. That’s also contrary to what the administration itself asked for. David Kris, testifying before the Senate Armed Services Committee, noted that traditionally, “military commissions have been associated with a particular conflict of relatively short duration.” Buy contrast, the current conflict “could continue for a much longer time.”

The result is that the military commissions could outlast the Obama presidency, raising another potentially sticky point that the Obama administration might prefer to avoid. “By not having a sunset provision,” said Kadidal, “this system will be a permanent part of President Obama’s legacy.”

Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”

“They’re opening them (oil fields) up to other companies all over the world … We’re entitled to it,” Pickens said of Iraq’s oil. “Heck, we even lost 5,000 of our people, 65,000 injured and a trillion, five hundred billion dollars.”

Osama bin Laden, 2007:

AL-Qaeda leader Osama bin Laden has accused the US of plotting to take control of Iraqi oil supplies and he urged Iraqis to reject efforts to rebuild a US-backed national unity government.

In the future, how about not publicly saying things that reinforce bin Laden’s view of the world?

Members of the Pakistani military (ispr.gov.pk)

Very little is clear about the forthcoming Pakistani military push into Waziristan, the rugged, mountainous tribal home base of the Pakistani Taliban and, most likely, Osama bin Laden. When it will begin; what its objectives are; how it will achieve them; and why it will succeed when a 2006 military assault ended in a disastrous ceasefire on the militants’ terms.

That lack of clarity extends to key questions for the U.S. in Pakistan and its associated war in Afghanistan. Will the push drive insurgents across the border? What will it mean for targeting al-Qaeda in Pakistan?

Illustration by: Matt Mahurin

The Obama administration, already involved in what the White House describes as a comprehensive review of strategy for the region, is now looking for the answers. One emerging assumption is that the Pakistani campaign will be protracted, and hardly a replay of this spring’s surprising Pakistani victory in the Swat Valley.

“The Pakistanis have been advertising their upcoming offensive for a while now,” said a U.S. counterterrorism official who insisted on anonymity while discussing sensitive planning issues. “So the terrorists know it’s on the way. They’ve had time to prepare.”

Beginning last week, Pakistani extremists unleashed a wave of violence across the country in anticipation of the offensive, even managing to storm the military staff’s Rawalpindi headquarters far from the tribal areas. On Thursday, another series of coordinated attacks rocked Lahore, the cultural capital of Pakistan. Since October 5, an estimated 150 Pakistanis have died as a result. “The message is to the Pakistani government and it is that news of the Taliban’s demise is greatly exaggerated,” said a former U.S. intelligence official with experience in Pakistan. “They have nothing to lose, they are willing to fight to the death, and they can take that fight to the Pakistani military’s front yard.” At a forum last week at the Council on Foreign Relations with Pakistani Foreign Minister Shah Mahmood Qureshi, the Pakistani ambassador to Washington, Husain Haqqani, good-naturedly brushed off a reporter’s attempt to discuss the campaign.

The army’s invasion, the former intelligence official speculated, may be accelerated by the insurgent attacks. Reuters reported on Wednesday that the army was moving an estimated 28,000 troops into position, and some residents of Waziristan quoted by the news service said they saw “soldiers and tanks” approaching. The local government in South Waziristan said Wednesday that up to 90,000 residents have fled the area in preparation for the attack.

Fighting in Waziristan carries implications for two aspects of the Obama administration’s strategy, both of which impact the current White House review. First is whether the arrival of a significant Pakistani ground force will facilitate increased intelligence collection about high-level Taliban or al-Qaeda targets. At present, the Obama administration is considering the contention, advocated by Vice President Biden and the intelligence community, that the CIA’s drone strikes against al-Qaeda operatives in Pakistan more directly support the goal of destroying the terrorist organization than does a counterinsurgency strategy in Afghanistan. The return of Pakistani ground troops into Waziristan, coupled with the intelligence community’s increased focus on the region, might provide an opportunity to facilitate more intense and accurate drone strikes in addition to Pakistani battlefield assaults.

But that is hardly certain. “If the Pakistani military pushes hard into Waziristan, and we’re talking about some very, very rugged terrain here, they might force individual al-Qaeda figures to move,” said the U.S. counterterrorism official. “That, in turn, can make them more vulnerable. It is, at least potentially, a better collection environment. You can’t make hard and fast predictions, though. You just have to be ready to take advantage of any opportunities that might arise, because they won’t last long.”

The second concern for the administration is whether the insurgents will target the Pakistani army in Waziristan or send significant numbers of fighters across the porous border into Afghanistan. “If it looks like they can give their attackers a bloody nose, they’ll stand” and fight, said Thomas Houlahan, director of the military assessment program at the Virginia-based Center for Security and Science think tank. “But if they realize their unit will get overrun, those guys will melt away. They’ll go to a part of the tribal areas where the army isn’t, or they go into Afghanistan and come back later.”

That, in turn, raises questions about the demands the Pakistani campaign will create for a U.S. military effort in Afghanistan that is already considered underresourced by its commander, Gen. Stanley McChrystal, at a time when President Obama is considering a request for tens of thousands more troops. McChrystal’s spokesman, Lt. Col. Tadd Sholtis, said that operations against insurgents in either Pakistan or Afghanistan have “obvious implications for the pro-government forces of both countries,” but declined to address any question about how McChrystal might respond to any potential influx of Taliban fighters fleeing the Pakistani military.

Still, Sholtis said, communications channels remain open with the Pakistanis. “General McChrystal and General Kayani meet regularly in person to discuss a range of issues, including a meeting last week in Pakistan,” Sholtis said, referring to the Pakistani Army’s chief of staff.

Representatives for Gen. David Petraeus, the commander of all U.S. forces in the Middle East and South Asia, who also deals regularly with Kayani, did not respond to repeated requests for comment.

Haider Mullick, a senior fellow at the U.S. Joint Special Operations University, expressed cautious optimism that the Pakistani military would be able to fight the Taliban in the mountainous, rural terrain of Waziristan. The military has assets it did not have in its failed 2006 campaign, he said, including “popular support, high morale, better intel, better [intelligence] cooperation on drones, more precision weapons, two divisions of Army and Frontier Corps combined and at least 1000 special forces, [and] ten gunships.”

But, Mullick said, the effort might still “not make the cut unless at least 2 more divisions move in, more locals are evacuated and there is more ISI [Inter-Services Intelligence]-CIA NATO-Pak military cooperation.” While the army had learned some lessons in counterinsurgency — something Petraeus vouched for in April congressional testimony — it would still need to “spread a strong net, kill the irreconcilables, limit collateral damage, protect civilians who stay behind and leave behind something to work with, [like] basic social and economic infrastructures.”

Houlahan said a key indicator of Pakistani resolve will be whether it uses infantry units from the regular army for the assault. “If it’s primarily a Frontier Corps affair, then it’s clearly not serious in my view. The Frontier Corps is essentially up-armored tribal police,” he said, citing what he said was a Pakistani military tendency to “flatten entire villages with artillery and avoid sending in infantry. … They’ve relied too much on airpower, and have been hesitant to send these units in and force a climactic battle.”

Still, as is often the case, that’s not necessarily the end of the story. Carol Rosenberg at The Miami Herald reports that the defense department’s military commissions could still try Al Rabiah for war crimes, as it planned to do during the Bush administration. The Pentagon claimed Al Rabiah ran a supply depot for al Qaeda fighters during the Battle of Tora Bora in Afghanistan. Al Rabiah’s lawyers argued in federal court that it was a case of mistaken identity; the man who’d actually supplied al Qaeda was killed by American air strikes.

Although Judge Kollar-Kotelly didn’t rule definitively on whether Al Rabiah was the man U.S. forces had intended to capture, she did rule unequivocally against the Justice Department, finding that the U.S. government has no right to keep Al Rabiah, imprisoned at Guantanamo since 2002, any longer. As she put it in her opinion: “If there exists a basis for Al Rabiah’s indefinite detention, it most certainly has not been presented to this Court.”

That won’t necessarily stop the military from charging him with war crimes, however. A military commissions spokesman told The Miami Herald that there’s still an active case pending against Al Rabiah at the commission. It’s been suspended until November, awaiting White House review.

Today, Judge Colleen Kollar-Kotelly released a declassified version of her opinion in the case of Fouad Mahmoud Al Rabiah. Although the opinion is heavily redacted, the judge’s point is clear.

“The evidentiary record on which the Government seeks to justify his indefinite detention is surprisingly bare,” she wrote. “Far from providing the Court with credible and reliable evidence as the basis for Al Rabiah’s continued detention, the Government asks the Court to simply accept the same confessions that the Government’s own interrogators did not credit.”

The U.S. government claimed Al Rabiah provided “material support” to the Taliban and al-Qaeda, and met several times with Osama bin Laden. Al Rabiah denied this, but apparently “confessed” under abusive interrogations to having run a supply depot for al-Qaeda fighters. Al Rabiah’s lawyers argued that the confessions were all coerced, and that it was a case of mistaken identity: the government had confused Al Rabiah with another man with the same nickname. That man was killed by American air strikes.

Judge Kollar-Kotelly, while acknowledging that strong possibility, decided she didn’t ultimately need to go there because it was clear that the government did not have credible evidence against Al Rabiah. Instead, she noted the many “inconsistencies and impossibilities” in the government’s case and the unreliable nature of the government’s witnesses, including that at least one of them had been subjected to a week of sleep deprivation via the “frequent flyer” program, which involves moving a detainee from one cell to another every couple of hours. Judge Kollar-Kotelly notes that this was both in violation of the Army Field Manual and violated the guidance issued by the Commander at US SOUTHCOM. In any event, it destroyed the credibility of the witness’s claims against Al Rabiah, which were never repeated again.

In the end, the judge threw out the government’s case, ruling that the detention of Al Rabiah for the past seven years was unjustified:

“[T]he court concludes that Al Rabiah’s uncorroborated confessions are not credible or reliable, and that the Government has failed to provide the Court with sufficiently credible and reliable evidence to meet its burden of persuasion. If there exists a basis for Al Rabiah’s indefinite detention, it most certainly has not been presented to this Court.”

David Cynamon, Al Rabiah’s lawyer in this victory, sent me these thoughts on the case in an email today:

I think the significance of this case is that it totally rebuts the torture apologists.  Thus far Cheney and his ilk have argued that torture is OK because, after all, guys like KSM and Abu Zubaydah are bad guys and it was necessary to torture them because of the valuable intelligence.  Those arguments are without merit, but they appeal to a lot of people.  But Al Rabiah is not a bad guy — he’s a totally innocent man — and he had no intelligence value because he is an innocent man.  This demonstrates why you need to have a bright line against torture and abuse, and why declaring the Geneva Conventions to be “quaint” and outmoded has such a disastrous effect.  Maybe you start off with the idea that you’re “only” going to torture the KSMs, but pretty soon you end up torturing anyone who doesn’t fit your preconceived determination that everyone at Guantanamo is “the worst of the worst.”  What the interrogation reports show in Al Rabiah’s case is that the more he insisted on his innocence, the harsher the interrogations got, because his interrogators would not, and, indeed could not, believe that he was innocent.

Here’s Judge Kollar-Kotelly’s decision: