nationalsecuritylaw GTMO transfer of Algerian detainee (pursuant to habeas order)

January 6, 2011

* DOD announces transfer to Algeria of a detainee pursuant to a habeas order granted in November 2009

In Farhi Saeed Bin Mohammed v. Obama, 689 F.Supp.2d 38 (D.D.C. Nov. 19, 2009), Judge Kessler granted habeas relief. That detainee it appears has now been transferred back to Algeria (though note the name discrepancy). From the press release:

The Department of Defense announced today the transfer of Saiid Farhi from the detention facility at Guantanamo Bay to the Government of Algeria. Farhi was ordered released by the U.S. District Court for the District of Columbia on Nov. 19, 2009.

As directed by the President’s Jan. 22, 2009, executive order, the interagency Guantanamo Review Task Force conducted a comprehensive review of this case. As a result of that review, which examined a number of factors, including security issues, Farhi was approved for transfer by unanimous consent among all six agencies on the task force. In accordance with Congressionally-mandated reporting requirements, the administration informed Congress of its intent to transfer this individual.

The United States is grateful to the Government of Algeria for its willingness to support U.S. efforts to close the Guantanamo Bay detention facility. The United States coordinated with the Government of Algeria to ensure the transfer took place under appropriate security and humane treatment measures.

Today, 173 detainees remain at Guantanamo Bay.

nationalsecuritylaw United States v. Sterling (E.D. Va. Jan. 6, 2011)

January 6, 2011

* United States v. Sterling (E.D. Va. Jan. 6, 2011) (indictment of former CIA officer for unauthorized disclosure of national defense information)

No, this has nothing to do with wikileaks as such. But you may recall a case from a few years ago involving a CIA officer who attempted to sue the agency for discrimination, only to have the case thrown out on state secrets grounds. Well, in a remarkable twist in the story, he was arrested this morning in St. Louis and now faces charges of unauthorized disclosure of national defense information involving a human asset and the weapons capabilities of a certain foreign country in connection with allegations involving his interactions with a journalist from a “national newspaper” whose work resulted in a book in January 2006. (See the press release below.) Given the date and topic, that sure sounds like a reference to James Risen’s State of War: The Secret History of the CIA and the Bush Administration. Recall that Charlie Savage in April 2010 reported that Risen had been subpoenaed to testify and give docs about his sources for the book, which according to this report at least he refused to do.

From the press release:

WASHINGTON – A former CIA officer was arrested today on charges that he illegally disclosed national defense information and obstructed justice, announced Assistant Attorney General Lanny A. Breuer of the Criminal Division and U.S. Attorney Neil H. MacBride for the Eastern District of Virginia.

Jeffrey Alexander Sterling, 43, of O’Fallon, Mo., was charged in a 10-count indictment returned by a federal grand jury in the Eastern District of Virginia on Dec. 22, 2010, and unsealed today. The indictment charges Sterling with six counts of unauthorized disclosure of national defense information, and one count each of unlawful retention of national defense information, mail fraud, unauthorized conveyance of government property and obstruction of justice. Sterling was arrested today in St. Louis and is expected to make his initial appearance this afternoon before U.S. Magistrate Judge Terry I. Adelman in U.S. District Court for the Eastern District of Missouri.

According to the indictment, Sterling was employed by the CIA from May 1993 to January 2002. From November 1998 through May 2000, he was assigned to a classified clandestine operational program designed to conduct intelligence activities related to the weapons capabilities of certain countries, including Country A. During that same time frame, he was also the operations officer assigned to handle a human asset associated with that program. According to the indictment, Sterling was reassigned in May 2000, at which time he was no longer authorized to receive or possess classified documents concerning the program or the individual.

In connection with his employment, the indictment alleges that Sterling, who is a lawyer, signed various security, secrecy and non-disclosure agreements in which he agreed never to disclose classified information to unauthorized persons, acknowledged that classified information was the property of the CIA, and also acknowledged that the unauthorized disclosure of classified information could constitute a criminal offense. According to the indictment, these agreements also set forth the proper procedures to follow if Sterling had concerns that the CIA had engaged in any “unlawful or improper” conduct that implicated classified information. These procedures permit such concerns to be addressed while still protecting the classified nature of the information. The media, according to the indictment, was not an authorized party to receive such classified information under such circumstances.

The indictment alleges that Sterling, in retaliation for the CIA’s refusal to settle on terms favorable to him in the civil and administrative claims he was pursuing against the CIA, engaged in a scheme to disclose information concerning the classified operational program and the human asset – first, in connection with a possible newspaper story to be written by an author employed by a national newspaper in early 2003 and, later, in connection with a book published by the author in January 2006.

“The indictment unsealed today alleges that Jeffrey Sterling violated his oath to protect classified information and then obstructed an investigation into his actions. Through his alleged actions, Sterling placed at risk our national security and the life of an individual working on a classified mission,” said Assistant Attorney General Lanny A. Breuer. “Those who violate the law, and the trust placed in them by the U.S. government to keep our national security information secure, must be held accountable.”

“Our national security requires that sensitive information be protected,” said U.S. Attorney MacBride. “The law does not allow one person to unilaterally decide to disclose that information to someone not cleared to receive it. Those who handle classified information know the law and must be held accountable when they break it.”

The indictment alleges that Sterling took a number of steps to facilitate the disclosure of the classified information, including:

  • stealing classified documents and other information from the CIA and unlawfully retaining those documents without the authority of the CIA;
  • communicating by telephone, via e-mail and in person with the author in order to arrange for the disclosure of or to disclose classified information to the author;
  • meeting with the author in person to orally disclose classified information to the author and to provide documents containing classified information to the author for review or use;
  • characterizing the classified information in a false and misleading manner as a means of inducing the author to write and publish a story premised on that false and misleading information;
  • deceiving and attempting to deceive the CIA into believing that he was a former employee adhering to his secrecy and non-disclosure agreements; and
  • deliberately choosing to disclose the classified information to a member of the media, knowing that such an individual would not reveal his identity, thereby concealing and perpetrating the scheme.

Specifically, the indictment alleges that beginning in August 2000, Sterling pursued various administrative and civil actions against the CIA concerning alleged employment-related racial discrimination and decisions made by the CIA’s Publications Review Board regarding Sterling’s efforts to publish his memoirs. According to the indictment, on Feb. 12, 2003, the CIA rejected Sterling’s third offer to settle his discrimination lawsuit, which was ultimately dismissed by the court.

The indictment alleges that beginning a few weeks later, in February and March 2003, Sterling made various telephone calls to the author’s residence, and e-mailed the author a newspaper article about the weapons capabilities of Country A. According to the indictment, while the possible newspaper article containing the classified information Sterling allegedly provided ultimately was not published in 2003, Sterling and the author remained in touch from December 2003 through November 2005 via telephone and e-mail. The indictment alleges that in January 2006, the author published a book which contained classified information about the program and the human asset.

The indictment also alleges that Sterling obstructed justice when, between April and July 2006, he deleted the e-mail he had sent to the author concerning the weapons capabilities of Country A from his account. According to the indictment, Sterling was aware by June 2003 of an FBI investigation into his disclosure of national defense information, and was aware of a grand jury investigation into the matter by June 2006, when he was served a grand jury subpoena for documents relating to the author’s book.

The charges of unauthorized disclosure and retention of national defense information each carry maximum penalties of 10 years in prison. The charge of mail fraud carries a maximum penalty of 20 years in prison. The charge of unauthorized conveyance of government property carries a maximum penalty of 10 years in prison. The charge of obstruction of justice carries a maximum penalty of 20 years in prison. Each of these charges also carries a maximum fine of $250,000 or twice the loss or gain associated with the offense.

nationalsecuritylaw United States v. Kashmiri (N.D. Ill. Jan. 3, 2011)

January 6, 2011

* United States v. Kashmiri (N.D. Ill. Jan. 3, 2011) (denial of suppression motion)

Judge Leinenweber has denied a defense motion to suppress a post-arrest statement, in a case in which the defendant is charged with providing material support to the 2008 Mumbai attacks as well as a plot to attack a newspaper in Denmark. Nothing especially novel here, but it’s interesting nonetheless. Here is the bulk of the opinion:

Defendant was arrested on October 18, 2009, and taken to the Federal Bureau of Investigation’s (the "FBI") Chicago office for questioning by two FBI agents. Prior to this interrogation, the agents provided Defendant Miranda warnings. In providing these warnings, the agents told Defendant that he had "the right to talk to a lawyer for advice before we ask you any questions," "the right for the lawyer to be here present with you during any questioning," and "if you [Rana] would like to have an attorney, you can have an attorney, you can have an attorney here." Defendant waived his Miranda rights, both orally and in writing. According to a time stamp on the video of the questioning, the interrogation began at 8:48 a.m.

Almost three-and-a-half hours into the interrogation, at approximately 12:10 p.m., Defendant asked the agents if he could use the washroom. One agent left the room to apparently make arrangements for this request. At this time, Defendant asked the agent still present in the room if the government was charging him with a crime. The agent told Defendant that he had been placed under arrest that morning. Then, at approximately 12:12 p.m., the period of the interrogation at which Defendant contends he requested an attorney occurred. The exchange proceeded as follows:

Defendant: So, the, I mean, generally I’m not aware of the criminal part. When you say that you are arrested, generally don’t they give you a charge sheet that they are charging you with so much? Or can they have somebody under suspicion and just, you know, take that person in?

Agent 1: Yes, I think that a judge would advise you of everything that you are being charged with.

Defendant: So then if I am going to [a] judge, (the door opens and the agent who left the room apparently returns) then I should have an attorney. Regardless, at that time I will need an attorney.

Agent 1: Uh, you are welcome to get an attorney at any time you want.

Defendant: Ok, so I mean, if I am going to the judge, there will be an attorney required to represent me, right?

Agent 1: Um, you have to, um …

Agent 2: You have the right to an attorney, absolutely.

Agent 1: Yeah, you definitely have the right to an attorney.

Defendant: Yeah, I mean, if it has to be later on then he should be, he will have to go through all this, whatever is going on so he knows. Let me pee and then make a decision (Defendant walks out to use the washroom and agents talk at same time) because if I have to go to the judge, then definitely there should be somebody who is supposed to … (Defendant leaves, still talking).

*2 Defendant left the room at 12:13 p.m. He returned at approximately 12:20 p.m., and the interrogation resumed. He did not raise the subject of having an attorney at the interrogation upon his return. The questioning lasted until almost 3 p.m.

Defendant contends that he invoked his right to counsel before he went to the washroom, and at this point the agents should have ceased their interrogation until an attorney was present with him, or until he initiated the conversation. He asks the Court to suppress all statements he made after he invoked his right to counsel, and any evidence related to these statements in this and any other matter. He also requests an evidentiary hearing if the Court needs to consider matters not in the taped interrogation.


Under Miranda, law enforcement agents must inform an individual subject to custodial interrogation that he has a right to consult with an attorney prior to questioning, and that he has a right to have an attorney present with him during this interrogation. See Miranda v. Arizona, 384 U.S. 436, 471-72 (1966). The accused may waive his right to counsel, but this waiver must be made both knowingly and intelligently. See Edwards v. Arizona, 451 U .S. 477, 483-84 (1981). The accused does not waive his right to counsel simply by failing to ask for an attorney. See Miranda, 384 U.S. at 470. He can ask for an attorney at any point during an interrogation, and if the accused invokes his right to have an attorney present with him, he "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 484-85. Because this constitutes a rigid prophylactic rule, a court has to make a determination " ‘whether the accused actually invoked his right to counsel.’ " Davis v. United States, 512 U.S. 452, 458 (1994) (quoting Smith v. Illinois, 469 U.S. 91, 95 (1984)).

The accused must clearly invoke his right to counsel. See United States v. Shabaz, 579 F.3d 815, 818 (7th Cir.2009). Whether he does so is an objective inquiry. See id. "[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," the authorities do not have to cease their questioning. Davis, 512 U.S. at 459.


Defendant points the Court’s attention to the Seventh Circuit decision in United States v. Lee, 413 F.3d 622 (7th Cir.2005), in which the court analyzed what constitutes a suspect’s unequivocal invocation of his right to counsel:

In the Lord decision … this court mentioned several requests for counsel that it considered unequivocal: "I think I should call my lawyer"; "I have to get me a good lawyer, man. Can I make a phone call?"; "Can I talk to a lawyer? At this point, I think maybe you’re looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a suspect?" See Lord [v. Duckworth, 29 F.3d 1216, 1221 (7th Cir.1994) ] (quoting cases from Eleventh and Ninth Circuits regarding unambiguous invocation of right to counsel). Lee’s statement–"Can I have a lawyer?"–was similar to these statements recognized by this court as proper invocations of the right to an attorney.

*3 Lee, 413 F.3d at 626.

Statements that courts have determined do not constitute an unequivocal request for an attorney include "[m]aybe I should talk to a lawyer" (Davis, 512 U.S. at 462); "am I going to be able to get an attorney?" (Shabaz, 579 F.3d at 819); "I don’t know if I need an attorney" (United States v. Buckley, 4 F.3d 552, 558-59 (7th Cir.1993)); "should I have a lawyer?" (United States v. Ellison, No. 09-50646, 2010 WL 3199808, at *1 (9th Cir. Aug. 13, 2010)); and "I mean, I’d rather have a lawyer around to talk or, you know what I am saying, have some papers saying something, you know" (United States v. Propst, No. 09-13833, 2010 WL 774309, at *3 (11th Cir. Mar. 9, 2010)).

Considering the standard set forth in these cases, after reviewing the video of Defendant’s interrogation, the Court finds that Defendant did not unequivocally demand counsel. Defendant has taken his statement "I should have an attorney" out of context in an effort to convince the Court that he asked for an attorney at the interrogation. This statement appears in the middle of the sentence "So then if I am going to [a] judge, then I should have an attorney, regardless at that time I will need an attorney." The FBI agents in the room when Defendant made this statement could have reasonably believed that Defendant was referring to future representation in court, rather than representation at the interrogation. Defendant did not parse his references to counsel that he allegedly made referring to the interrogation and those referring to his court appearances into two distinct sentences or phrases. Rather, he jumbled them together in one short sentence.

The agents’ reasonable belief that Defendant did not request counsel at the interrogation becomes even more likely given that Defendant’s next statement refers to his potential representation in court: "OK, so I mean, if I am going to the judge, there will be an attorney required to represent me, right?" This is not a request for counsel at the interrogation; Defendant merely asks the agents whether he has the right to an attorney when he stands before a judge.

Before he left the interrogation room at 12:13 p.m., Defendant said, "Let me pee and then make a decision, because if I have to go to the judge, then definitely there should be someone who is supposed to…." This, again, also could reasonably be believed to reference having an attorney present with him in court, not at the interrogation. Also, in this statement, Defendant indicated that he had not made a decision whether he desired to have an attorney present at the interrogation. Finally, when he returned to the room at approximately 12:20, almost seven minutes after he stated that he needed to make a decision, he did not broach the subject of having an attorney present. The agents did not have a duty to clarify or follow up with Defendant about his decision regarding an attorney. See Shabaz, 579 F.3d at 818. Defendant had the burden to make a "clear and unambiguous assertion of his right to counsel to stop questioning." Id. (internal quotation omitted). Defendant simply did not make an unequivocal request for counsel, so his Motion to Suppress is denied.

*4 Because the Court reviewed a video recording of Defendant’s October 18, 2009, interrogation in deliberating on this Opinion, an evidentiary hearing is not necessary to resolve any disputes regarding what Defendant or the FBI agents said during the interrogation.


For the reasons stated herein, Defendant’s Motion to Suppress Post-Arrest Statement and Request for Evidentiary Hearing is denied.

nationalsecuritylaw United States v. Brehm (E.D. Va. Jan. 5, 2010)

January 6, 2011

* United States v. Brehm (E.D. Va. Jan. 5, 2010) (MEJA indictment of contractor for stabbing in Afghanistan)

Very interesting: a MEJA case involving a South African contractor working for DOD, accused of stabbing someone on base in Afghanistan. See the attached indictment (though it has little in the way of detail).