convictions of US and Italian agents in the Abu Omar rendition case in Milan; SSP asserted in Shubert v. Obama; revised OIG report on FBI role in GTMO interrogations

November 4, 2009

1. Convictions in the Abu Omar extradition prosecution

The BBC reports that 23 CIA agents and two Italian secret agents were convicted today in connection with the extraordinary rendition of Abu Omar from Milan to Egypt back in 2003.  Most of the Americans received five year sentences, while former COS Robert Lady received an eight-year term.  The Italian agents received three-year terms.  None of the Americans are in Italian custody of course, nor are they likely to be.  The two Italians, however, presumably are.

2. Shubert v. Obama (E.D.N.Y. Oct. 30, 2009)

Attorney General Holder issued an unusual public statement recently, defending the Justice Department’s decision to assert the state secrets privilege in this case(a civil suit alleging massive warrantless surveillance of phone and internet communications in the U.S. after 9/11).  Here is the full text:

“The Department of Justice asserted the state secrets privilege in a case today to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country.  I authorized this significant step following a careful and thorough review process, and I did so only because I believe there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.

“Last month, I outlined new policies and procedures containing a system of internal and external checks and balances that the Department will follow each time it invokes the state secrets privilege in litigation.  We designed those procedures to provide greater accountability for the use of the privilege and to ensure that the Department invokes the privilege only to the extent that it is absolutely necessary to protect national security.  The procedures require a thorough, multi-stage review and rely upon robust judicial and congressional oversight.

“The present case was reviewed under this new process. The Director of National Intelligence and the Director of the National Security Agency certified to the Department that disclosing information at issue in the case would jeopardize national security and provided classified information to support that conclusion.  A review committee of senior Department officials, the Associate Attorney General, and the Deputy Attorney General all reviewed that information.  Based on the recommendations from this review process, as well as my own personal review of the information provided, I concluded that we had no alternative but to assert the privilege to prevent the exposure of intelligence sources and methods.

“As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so. Much like previous litigation in which the government asserted the privilege, the core claims in this case involve questions about ongoing intelligence operations, and allowing it to proceed would disclose critical activities of high value to the national security of this country.

“We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power.  Moreover, we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely.

“The assertion of the state secrets privilege presents one of the most difficult challenges in balancing the American people’s right to information about actions their government takes and the government’s need to protect vital information that would compromise national security.  Making the government more transparent and accountable is one of this administration’s top priorities, which is why my Department has issued reformed guidelines to govern Freedom of Information Act practices, released previously undisclosed Office of Legal Counsel (OLC) memoranda, publishes on an ongoing basis this Department’s OLC memoranda whenever possible, and, indeed, adopted our more restrictive state secrets policy.

“The state secrets privilege also presents challenging questions of executive power. We have attempted to resolve those questions in a manner that ensures robust deliberation and allows for appropriate oversight by the courts and Congress.  We believe the action we have taken in this case is the only responsible choice.  Ultimately, the judicial system will determine whether we have drawn the line at the appropriate place, as is lawful and appropriate under our system of checks and balances.  As always, we will respect the outcome of that process.”

3. DOJ Inspector General’s Report, A Review of the FBI’s Involvement in and Observations of Interrogations in Guantanamo Bay, Afghanistan, and Iraq (October 2009 Revised Edition)

This revised report was just posted.  The report originally came out in spring 2008, but has been reissued now that some classified material has been declassified.  The report is 441 pages, but you can scan it and see all the new material highlighted in yellow….

United States v. al Qosi (ruling on attempt to amend charges, and ruling requiring pretrial hearing on “unprivelged belligerent” status)

November 4, 2009

United States v. al Qosi (Mil. Com. Dec. 3, 2009)

In a four-page opinion, Judge Paul partially granted and partially denied the government’s motion in to amend the charges against al Qosi.  In brief, the government sought to make two changes to the existing charges against al Qosi.

First, it sought to change the terminology used to describe his status from “unlawful enemy combatant” to “unprivileged enemy belligerent,” as the latter terminology is now the governing standard for personal jurisdiction in the commission system pursuant to the MCA 2009.   The judge granted the motion on this point (but see the note below regarding the hearing she ordered on this issue).

Second, the government sought to expand the range of inculpatory conduct alleged against al Qosi in support of the existing charges (basically, expanding the facts to include his alleged role as an al Qa’ida financier in the Sudan in the 1992-1996 period, and also expanding the set of overt acts alleged in support of the conspiracy charge).  Judge Paul classified this as a “major change” to the charges, one that cannot be accomplished without withdrawing and re-referring the charges.

In a three-page opinion, Judge Paul also ordered that there be an evidentiary hearing on January 6th, during which the government must  prove by a preponderance of the evidence that al Qosi is properly classified as an “unprivileged enemy belligerent.”  In the course of the opinion, Judge Paul concluded:

  • Army Regulation 190-8 is not the exclusive mechanism for making such determinations, though it “may provide useful guidance”
  • personal jurisdiction, when challenged, should be resolved before trial on the merits
  • a finding of personal jurisdiction does not preclude the assertion of affirmative defenses, and cannot be dispositive of any element of a charge given the government’s burden to prove such elements beyond a reasonable doubt.

The opinion suggests that the inquiry at the January 9th hearing will be whether the government has adequate proof that al Qosi fits the definition of “unprivileged enemy belligerent” contained in the MCA 2009 (“has engaged in hostilities against the United States or its coalition partners…has purposefully and materially supported [such] hostilities…or…was a part of al Qaeda at the time of the offense alleged…[and does not qualify as a “privileged belligerent” as defined with reference to GPW Article 4’s POW status rules].

Kudos to the Miami Herald for making these documents available to the public quickly.