Ramzi bin al Shibh is one of five men charged by the U.S. military commission with having participated in planning the Sept. 11 hijacking and suicide mission. His lawyers say he’s not competent to represent himself or to stand trial because he suffers from “delusional disorder” and hallucinations, and he is being treated with psychotropic drugs by Guantanamo Bay prison doctors.

To prepare his defense, his lawyers tried to get evidence from the government about which specific interrogation techniques were used on him, and how frequently. Waterboarding, stress positions, sleep deprivation and sexual humiliation are among the techniques to which the the alleged 9/11  conspirators were subjected, according to the so-called Office of Legal Counsel “torture memos” released earlier this year.

But the military judge hearing the case, Army Col. Stephen Henley, ruled on Aug. 6 that “evidence of specific techniques employed by various governmental agencies to interrogate the accused is … not essential to a fair resolution of the incompetence determination hearing in this case.” The government had argued that releasing the evidence would endanger national security.

The Miami Herald obtained a copy of the ruling on Monday.

Citizens for a Safe Alexandria founder Sara Raak (News8.net)

As a substantial portion of about 250 detainees being held at Guantanamo Bay’s prison facility prepare to face trial in the United States, the alarm that has defined the Washington debate over civilian trials for terrorism detainees has spilled across the Potomac River. A new organization has formed in Alexandria, Va., to advocate that the federal court there, which has already heard several prominent terrorism trials, is an undesired venue for trying detainees. The founder of the two-week-old Citizens for a Safe Alexandria, Sara Raak, appeared on local TV news Monday night to tell the Obama administration and lawmakers not to “put those of us in the Alexandria neighborhood at risk” by transfering detainees to the U.S. District Court for the Eastern District of Virginia.

Illustration by: Matt Mahurin

But while the newscaster interviewing Raak called her group a “grassroots” organization — and while Raak explained its origins by saying “we wanted to have an organization that kept the citizens of Alexandria aware of things that were happening at the federal, state or local government level” about dangers to the area — the group shows signs of being an “astroturf” effort, an attempt at making an issue pushed by powerful sponsors appear like a spontaneous outpouring of public will. Raak, who has a substantial pedigree in conservative politics and works for a Virginia communications firm, denies the charge.

Citizens for a Safe Alexandria’s Website has a number of features that raise the eyebrows of astroturf experts. Its domain is listed as owned by DomainsByProxy, which conceals the identity of Websites’ owners. The site doesn’t feature any contact information — just a box where visitors can submit a message to the group. “These vague things, the lack of contact information, they’re all red flags,” said Diane Farsetta, a senior researcher with the Center for Media and Democracy. Asked about the DomainsByProxy Web ownership, Farsetta said, “I don’t know why a grassroots organization would do that.”

The servers that host Citizens for a Safe Alexandria’s Website, however, reveal somewhat more. According to the server-information hub Whois.net, the organization’s Website is hosted on servers belonging to a firm called Democracy Data & Communications, whose address is on the same floor of the same building as the communications firm where Raak is employed, a company called OnPoint Advocacy — whose Website is on the same servers as well. Those servers host Websites for several business interests and advocacy groups on the right, including the Altria-owned Tobaccoissues.com and the now-defunct Freedom’s Watch, formerly run by Bush White House Press Secretary Ari Fleischer. For its part, OnPoint offers clients the ability to “generate influential contacts with Congress” through “grassroots” and “grasstops” media strategies, including “interactive, grassroots-focused online recruitment and communications programs that help expand and strengthen your existing advocate audiences.”

According Raak’s OnPoint biography, Citizens for a Safe Alexandria is far from her first involvement in activism. The company lists her conservative-movement bona fides:

Prior to joining OnPoint Advocacy, Sara worked on the Vote for Business program at the U.S. Chamber of Commerce, creating and managing grassroots advocacy programs for U.S. Chamber members. Earlier in her career, Sara directed the campaign of Presidential candidate Steve Forbes in the two largest counties in Iowa. Sara has also worked for Progress for America, where she played a key role in the nomination of Chief Justice John Roberts and Justice Samuel Alito to the U.S. Supreme Court, and served as outreach director for the Support Your Troops campaign. In addition, while working for the DCI Group, Sara directed state-based campaigns for large telecommunications companies.

Reached for comment at her OnPoint office on Wednesday afternoon, Raak said that Democracy Data & Communications — which she clarified is part of OnPoint — “was kind enough to offer” a Website for Citizens for a Safe Alexandria, but otherwise “has nothing to do” with the group, which she said also extended to OnPoint more broadly. She said “there’s no funding” for the group other than what she, her husband and two associates who are “other moms” in Alexandria put into the effort. The money they spend will go toward “put[ting] out some pamphlets” against Guantanamo detainees going to trial in Alexandria and distribute them in Old Town and at area flea markets. The contact-us section of the group’s Website bounces to Raak’s personal email account, though she said she may change that aspect of the Website if her group expands. News Channel 8 contacted her after seeing the organization on various social-networking media. Raak Tweeted about it on May 29, using the “Top Conservatives On Twitter” hashtag.

Additionally, the group may expand its focus to “rising crime” in Alexandria. “We kind of reflect the views of people in the neighborhoods of Alexandria. It’s a completely bipartisan group,” Raak said. “It’s not an astroturf” organization.

What’s actually the problem with trying Guantanamo detainees in Alexandria? Several terrorism trials have already been held at the district court without any damage to public safety, with convicted al-Qaeda conspirator Zacharias Moussaoui being perhaps the highest profile defendant. When that trial and others were held, Raak rejoindered, there were “road closures, snipers on rooftops, traffic congestion.” The trials placed the city “on the radar,” she said, and were hardly “the positive thing Alexandria wants to be on the radar for.” Other jurisdictions, Raak noted, have offered to take in Guantanamo detainees for trial. (Florence, Colo., home of a federal Supermax prison, is one of them) “They’ve already been here,” Raak said. “We’ve had our turn.”

On that point, Raak has support from Virginia politicians and national Republicans. Sen. Jim Webb (D-Va.) said last month that he opposes transferring Guantanamo detainees for Virginia to stand trial. Rep. Eric Cantor (R-Va.), a House GOP leader from the state, blasted Creigh Deeds, who won the Virginia Democratic gubernatorial primary on Tuesday, for not taking a clear position on the issue. And Senate GOP leader Mitch McConnell (R-Ky.) made similar arguments on the Senate floor last month that when Moussaoui was brought to the Alexandria courthouse for his trial, “traffic was stopped due to security concerns, a major inconvenience to locals and local businesses.” Raak’s group is well-positioned to echo that argument.

Research assistance for this piece provided by TWI managing editor Matthew DeLong.

If that sounds a little vague, that’s because it is: as I wrote when the brothers were convicted in December, the alleged plot to attack Fort Dix appears to have been hatched as much by an undercover FBI informer who supplied them weapons — and had an incentive to encourage the crime — as by the immigrant men themselves.

The men were acquitted of the government’s attempted murder charges.

The three Muslim brothers from Macedonia were convicted of conspiracy and weapons charges, along with two other suspects, after they talked to paid undercover informants about the idea of attacking a U.S. military base and arranged to purchase weapons from one of them.

The men were also ordered to pay $125,000 to the Army to help cover costs of Fort Dix security.

Although the judge could have allowed for the possibility of future parole in the men’s sentences, Deputy U.S. Attorney William Fitzpatrick argued that even though no one was hurt, parole wasn’t warranted.

“The fact that they didn’t have an opportunity to carry [the plot] out should not be a benefit,” Fitzpatrick said, according to The Associated Press.

“But for the intervention of the FBI, at some point in the future,” the U.S. District Judge Robert Kugler agreed, these men “would have killed people.”

Yesterday, the three brothers again professed their innocence.

Mohammad Jawad was picked up in Afghanistan six years ago for allegedly throwing a grenade at an American convoy and is now imprisoned at Guantanamo Bay. In November, a U.S. military judge presiding over the military commission at Guantanamo Bay had excluded evidence from being heard because he determined that the boy had only confessed after Afghan police had threatened to kill him and his entire family if he didn’t.  Any subsequent confessions made by the 17-year-old during his interrogation by U.S. authorities — which according to his military lawyer involved him being hooded, handcuffed, blindfolded, strip-searched, sleep-deprived, yelled at and possibly drugged — were inherently unreliable and the product of torture, the judge concluded.

Among the evidence that the judge considered was the following statement from Jawad:

When I got to the place the Americans took me, I was very scared. During the interrogation, I was trembling and very cold. At one point, while the hood was covering my face, they put a bottle of water in my hand and told me to hold on tight to it with both hands. I did not know that it was a water bottle at the time. In my mind, I thought that it was a bomb and might explode…

I was so scared by the experience at the Afghan police station and by my experience with the Americans at the place they took me after the police station, that I had nightmares for several days after I got to Bagram prison.

Still, the government plans to argue that the Military Commissions Act allows the admission of such a confession even if it was initially obtained under torture, as long as it’s obtained again separately – in this case, under a brutal interrogation.

That Jawad was only a teenager at the time and he initially denied any involvement in the attack to Afghan and American authorities does not make his confession less reliable, according to the government.

Of about two dozen Guantanamo prisoners facing military commission charges, at least two were teenagers when they were detained by U.S. authorities, according to Human Rights First.

The arguments are scheduled to be heard on Tuesday morning in the U.S. Court of Appeals for the Federal Circuit.

Yesterday, five human rights groups sent President-elect Barack Obama a letter urging him to stop the prosecutions of child detainees.

A gate to Fort Dix. (Flickr: eflot)

The trouble started for Mohamad Shnewer and his old high school buddies from Cherry Hill, NJ in a Circuit City store in Mount Laurel in January 2006. When a store clerk saw the videotape that a customer wanted transferred to DVD –- showing men shooting assault weapons into the woods while shouting in Arabic –- he called the police. Police called in the FBI, which in turn recruited Mahmoud Omar, an Egyptian-born used-car salesman who had entered the United States illegally and was on probation for bank fraud. Omar, 39, was hired to befriend the five men in their 20s and find out what they were up to. In return, he’d not only get to stay in the country, but he’d be paid hundreds of thousands of dollars.

Illustration by: Matt Mahurin

Over the course of the next 17 months, Omar, sometimes wearing a wire, hung around and talked tough with the men about their commitment to Islam, their negative views of the United States military, the need for holy war, and how to get weapons and train for an attack. Omar also accompanied Shnewer, a 23-year-old cab driver of Jordanian descent living in Philadelphia, on drives to Fort Dix, Dover Air Force Base and other places that prosecutors say were potential targets of violence. (See the criminal complaint here — PDF.)

But transcripts of dozens of recorded conversations, many of which were played at the eight-week trial of the Fort Dix Five in Camden, NJ, that concluded earlier this week, leave a central question unclear: were these disgruntled young men actually plotting an attack, or were they just talking? That’s what the anonymous, sequestered jury, which began deliberations on Wednesday, will have to decide. (Update-the jury on Monday reached a split verdict.)

While the national media has focused on whether president-elect Barack Obama needs to create a special court to try suspected terrorists held at Guantanamo Bay, it’s largely overlooked the prosecutions of suspected terrorists already going on in US federal courts. The problem, say many legal experts, is that since September 11, in the Justice Department’s zeal to be tough on terrorism, prosecutors are using questionable tactics that could land innocent people – mainly Muslims – behind bars for a very long time. In particular, prosecutors are relying heavily on paid undercover informants, many of whom are themselves shady characters trying to reduce a felony sentence or prevent deportation and have an incentive to encourage or even incite a criminal plot. And since the primary charge against most suspected terrorists is conspiracy — essentially, planning to commit a crime — aggressive prosecutors can end up indicting angry young foreigners for combining unseemly political opinions with an active fantasy life.

“It seems to be the particular MO of the Bush Administration to get the informants to go in there and be driving the truck,” said Paul Halligan, a former lawyer for the Dept. of Homeland Security and now chief public defender for Newark, NJ. “Everybody uses informants, but this case doesn’t seem to be the strongest. It looks like the informant was trying to push the individuals into either taking action or making plans for an action, and repeatedly was returning to saying, ‘hey we’ve gotta do something, let’s do this or that,’ and they were kind of lukewarm.”

It’s a problem that comes up in many terrorism cases. Earlier this year, a jury deadlocked for the second time in the Miami trial of the “Liberty City Seven,” a group of impoverished Miami laborers accused of planning to blow up the Sears Tower in Chicago. When they were indicted in 2006, Attorney General Gonzales declared the government had just thwarted “a full ground war against the United States.”

But at trial, the leader of the group testified that he’d never planned on blowing anything up, he was just trying to get some money out of the informant who was egging them on.

“In that case I think many on the jury took the view of the defense that the whole thing was basically concocted by the government, a manufactured conspiracy by an informant who had something to sell,” says Peter Margulies, a law professor and expert on national security law at Roger Williams University. “That’s always the problem with informants of this kind.”

In 2005, prosecutors accused a prominent Yemeni sheik living in Brooklyn and his assistant of raising money for al Qaeda and Hamas, based on conversations taped by two informants. (The sheik claimed he was raising money for charities.) One of the informants later set himself on fire outside the White House, and later told reporters that the government hadn’t followed through on its promises to give him permanent US residency and enough money to make him a millionaire. (At trial he admitted he’d been paid $100,000 by the FBI and had pleaded guilty to bank fraud.) The sheik was sentenced to 75 years in prison; the conviction was reversed on appeal in October because the judge had allowed the prosecutors to introduce inflammatory evidence at trial about terrorist attacks that had no connection to the sheik or his assistant.

“In that case, the informant seemed like a highly unstable individual, yet the defendant was convicted based in part on the informant’s testimony,” said Margulies. Then again, “just because he’s unstable doesn’t mean he’s not telling the truth. You have to look at what other evidence is present.”

FBI.gov

In the case of the Fort Dix Five, the bulk of the evidence consists of recordings made by two paid informants – one a bankrupt convicted felon, the other a man who boasted of murdering someone back home in Albania and bragged that he was not afraid to die in a suicide bombing. In addition to their conversations over the course of more than a year with the men — Shnewer plus three Albanian brothers who worked for their father as roofers in Cherry Hill, and a 25-year-old Turk who worked at a Philadelphia convenience store (plus a sixth defendant who eventually pleaded guilty to a lesser charge) -– one of the informants recorded trips he made with his new friends to a Pocono Mountains firing range, and their regular games of paintball, all allegedly part of training to attack US forces.

The FBI also produced videos from Shnewer’s computer that he’d downloaded from the internet depicting violent attacks on US troops. Finally, there was the weapons sale: the men were arrested as soon as they handed Mahmoud Omar $1400 for four M-16s and three AK-47s rifles in May 2007. They are charged with conspiring to kill US soldiers.

The defense has countered that the target practice, paintball and videos were all legal and just part of an elaborate fantasy of Shnewer’s, rather than anything the men actually planned to do. It was the informant that tried to make that fantasy real, they argue, by providing the friends with weapons they could never otherwise have obtained.

These are typical arguments in a conspiracy case relying on an informer, legal experts say, because the reality is that informants have an incentive to develop and further whatever plot the government suspects.

Under federal sentencing guidelines, an informant can get a more lenient sentence if he provides “substantial assistance in the investigation or prosecution of another person who has committed an offense.”

Although assistance doesn’t have to lead to a conviction, most informants believe it’s better for them if it does. “Psychologically, is the judge influenced and is the prosecutor influenced by whether the prosecutor won the case?” asked Anthony Barkow, a former federal prosecutor and now executive director of the Center on the Administration of Criminal Law at New York University School of Law. “Maybe. The reality is they’re human beings. And they’re getting credit for substantial assistance. And that standard counts victory, it just does.”

Informants who are paid can also earn more the longer they can draw out the case and help hatch the plan. In the Fort Dix case, Mahmoud Omar will have been paid $238,000 by the FBI by the end of this year.

Some defense lawyers say that the government capitalizes on those incentives to bring cases that should never be brought.

“The government has used an extraordinary amount of resources to find people who have an antipathy to US policies as it relates to the Middle East and see which ones can get motivated, or angry enough, to follow the leadership of a confidential informant,” says Sam Schmidt, a lawyer who represented one of the men accused in the 1998 bombings of US embassies in Africa.

“Many of these cases appear to be the informant who is either working off a case to avoid going to jail or being deported or is seeking remuneration, approaching some people and getting them excited, getting them angry and persuading them to join in what has been described as terrorism conspiracies.”

To prove conspiracy, the government only has to show that the defendants agreed to commit a crime, and did one act to further it. No substantive crime needs to have actually been committed, or even planned in any detail. In the Fort Dix case, the government doesn’t even need to prove the men agreed to attack Fort Dix – just that they had an agreement to attack US soldiers somewhere, at some point.

In such cases, “the virtue of using informants is you can get at criminality you might otherwise not be able to get at,” said Margulies. “You can incapacitate people, instead of waiting for them to do something illegal and dangerous. After 9-11, the government has clearly said we want to err on the side of preventing violence. So there have been a number of cases like this.”

Indeed, the government has compiled an impressive record in prosecuting alleged terrorists since September 11, 2001, with 145 defendants convicted by the end of 2007.

But is the government going too far? Is this legitimate prosecution of dangerous criminals, or entrapment of swaggering political malcontents?

At closing arguments earlier this week at the trial in Camden, Shnewer’s lawyer argued the latter.

“Omar led and led and pushed and pushed Mohamad as far as he could,” said Rocco Cipparone, as reported by the Newark Star-Ledger. “But at the end of the day, all Mohamad did was talk and talk and talk,” Cipparone said. “His actions — and inactions — speak more volumes than his words.”

As the transcripts reveal, the conversations, which took place in a mixture of English, Albanian and Arabic, were filled with miscommunications, bravado, ambiguity and apparent nonsense. At some points the defendants seem far too scared to really do anything at all.

When the men are supposedly shopping for weapons, for example, one of the defendants worries that if someone is caught with his machine gun, he’ll “be in deep shit.” And if someone gets killed, “As Muslim, if we get caught, we all get sent away to fucking Guantanamo Bay for 10, for 10 years with no court date…. Bro they come to you in the fucking morning when you are sleeping. And they don’t fucking play.”

Even the government’s indictment suggests that the men weren’t necessarily committed to turning their tough talk into action. Although they told the informer they’d talked vaguely about committing violence against Americans, it was the informer who promised to get them high-powered weapons to carry it out, apparently frightening one of the men, who said, “gotta be cautious.”

Still, under the unusually broad arm of US conspiracy law, even if the informant was the one who actually developed and advanced the plot, anyone else who said or even implied that he would go along with it can be convicted of conspiracy.

“A person is entrapped when he has no previous intention to violate the law and is persuaded to commit the crime by government agents,” said Barkow. “But if he’s already willing to commit the crime, it’s not entrapment if government agents convince him to do it.”

As Margulies explained: “A virtue of American conspiracy law is it allows you to show conspiracy with relatively thin evidence. In Britain, recently, they couldn’t convict people in an airport bombing plot because they had to show that action was imminent. American law is more expansive than most other democracies in that respect.”

But there’s a big problem that goes along with that. Supreme Court Justice Robert Jackson wrote in a famous 1949 case that prosecutors’ growing dependence on the elusive American conspiracy law ultimately “constitutes a serious threat to fairness in our administration of justice.”

Margulies puts it more simply: “It allows the government to basically target the people it doesn’t like.”