nationalsecuritylaw Brief Overview of the KSM indictment

April 4, 2011

* Brief overview of the KSM indictment

For those who want a quick overview of the just-unsealed and just-dismissed KSM indictment:

The defendants in the case were KSM, Walid Bin Attash, Ramzi bin al-Shibh, Ali Abdul Aziz Ali, and Mustafa al-Hawasi. In late 2009, they were named in connection with the 9/11 attacks in the 14th Superseding Indictment in the case originally filed in 1993 in connection with the first World Trade Center plot. That is the document unsealed this morning, and dismissed today in favor of military commission proceedings. The following is a brief summary of the charges and allegations in the now-defunct indictment:

Factual Allegations

The indictment first mentions KSM, bin Attash, and al-Hawsawi earlier in connection with the general overview of AQ’s structure, stating that they participated in AQ’s “media committee.” The indictment turns to their direct involvement in the 9/11 plot on p.11. KSM is described as the “operational leader” of the plot. Bin Attash is participating in the plot by “collecting information on matters related to airport and airplane security measures.” Bin al-Shibh and Ali are described as facilitating the plot by sending money to the hijackers in the US. Al-Hawsawi is described as a plot facilitator for helping to arrange the hijackers travel to the US and other logistics.

The enumeration of overt acts begins on p. 14. Most if not all of it should be familiar in light of prior accounts such as that in the 9/11 Commission Report. Somewhat interesting additional details that I do not recall seeing before include:

· After the 9/11 attacks, bin Laden directed bin Attash to “travel to the Tora Bora region … and prepare the area by digging trenches and stockpiling food, weapons, and ammunition.” (para. 174).

· Bin Laden videotaped a message the day before the 9/11 attacks, referring to all 19 hijackers by name and by “kunya.” (para. 179)

· When KSM and al-Hawsawi were captured in March 2003, there were materials present “related to . . . the planning and execution of the September 11, 2001 attacks.” (para. 180)

Charges

Counts 1-9 were relatively conventional charges stemming directly from the 9/11 plot:

Count 1 – Conspiracy to Commit Acts of Terrorism Transcending National Boundaries (18 USC 2332b)

Count 2 – Acts of Terrorism Transcending National Boundaries (same)

Count 3 – Conspiracy to Commit Violent Acts and Destroy Aircraft (18 USC 32)

Count 4 – Violence on and Destruction of Aircraft (same)

Count 5 – Conspiracy to Commit Aircraft Piracy (49 USC 46502)

Count 6 – Aircraft Piracy (same)

Counts 7 and 8 – Murder of United States Officers and Employees (18 USC 2, 18 USC 1111, 18 USC 1114)

Count 9 – Destruction of the Twin Towers (18 USC 844(i), and 18 USC 2)

Count 10 was different. Titled “Al Qaeda Conspiracy to Kill Americans,” count 10 asserted a violation of 18 USC 2332. In relevant part, § 2332 makes it a crime for persons outside the United States to conspire to kill US nationals. In contrast to the 9/11-focused charges in Counts 1-9, this charge explicitly focused on the proposition that al Qaeda can be conceived as an overarching conspiracy to kill Americans wherever Americans may be found. Consistent with that lens, Count 10 not only incorporated by reference all the prior allegations relating to the 9/11 plot, but also a handful of additional allegations not directly linked to 9/11, including:

· KSM in 1999 went with bin Laden to a Kabul-area terrorist training camp

· KSM in 2000 discussed potential American targets in Australia

· Bin Attash in 2001 served on bin Laden’s security detail

· KSM and Ali in late 2001 plotted to attack US-bound planes with shoe bombs

· Bin Attash while in Pakistan in April 2003 “possessed approximately 400 to 500 kilograms of explosives to be used to attack Americans”.

Special Findings

The indictment concluded with a series of “special findings” allegations required for seeking the death penalty, though only in relation to counts 1-9.


nationalsecuritylaw United States v. KSM et al (unsealed, and now-defunct, SDNY indictment of the 9/11 plotters)

April 4, 2011

* United States v. KSM et al (unsealed, and now-defunct, SDNY indictment of the 9/11 plotters)

The just-unsealed indictment from SDNY to which AG Holder referred in his statement today is posted here, and the five-page nolle prosequi filing is here.


nationalsecuritylaw corrected cert denied in several GTMO detainee cases; KSM et al to be tried by military commission

April 4, 2011

I failed to mention in paragraph 1 below that the Court also denied cert. in al-Bihani. Sorry for the confusion!

From: Robert Chesney [mailto:rchesney@law.utexas.edu]
Sent: Monday, April 04, 2011 12:02 PM
To: nationalsecuritylaw@utlists.utexas.edu
Subject: [nationalsecuritylaw] cert denied in several GTMO detainee cases; KSM et al to be tried by military commission

1. Cert. Denied in GTMO Habeas Cases

The Supreme Court has denied cert. in the GTMO habeas cases al Odah v. United States and Awad v. Obama. No action taken in Kiyemba, however, reinforcing the impression that a denial accompanied by a dissent is in the works.

2. KSM et al to be tried by military commission after all

The AG is holding a 2pm (eastern) conference, and reports are emerging that he will announce that KSM and the other 9/11 defendants will be tried by military commission after all.


nationalsecuritylaw AG’s Statement on the 9/11 Prosecution

April 4, 2011

01


nationalsecuritylaw In re Petitioners Seeking Habeas Corpus Relief in Relation to Priot Detentions at Guantanamo Bay

April 4, 2011

* In re Petitioners Seeking Habeas Corpus Relief in Relation to Priot Detentions at Guantanamo Bay (D.D.C. 4/1/11)

In a 24-page opinion posted here, Judge Hogan last Friday dismissed 105 habeas petitions relating to indviduals previously held at GTMO. The underlying rationale is as you might expect:

“Petitioners are no longer in United States custody and fail to demonstrate that they suffer from collateral consequences of their prior detention that the Court can remedy. Accordingly, the Court will dismiss their habeas claims as moot.” (p. 2)

Other interesting passages include Judge Hogan’s discussion of Abu Ali:

“Furthermore, Petitioners miscast the holding in Abu Ali. The District Court did not conclude that Abu Ali was in United States custody. Id. at 50. Rather, it rejected the Government’s contention that a federal court has no jurisdiction to consider the habeas petition of an individual in the hands of a foreign state. Id. at 31. In denying the Government’s motion to dismiss for lack of habeas jurisdiction, the District Court authorized additional discovery to explore the petitioner’s unrebutted pleadings. Id. Such discovery was justified by the Government’s reticence. Far from concluding that individuals detained abroad at the behest of the United States are in constructive custody, the District Court cautioned that “[t]he instances where the United States is correctly deemed to be operating through a foreign ally as an intermediary for purposes of habeas jurisdiction will be exceptional, and a federal court’s inquiry in such cases will be substantially circumscribed by the separation of the powers.” Id. at 41. Here, Respondents do not make the same broad assertions that federal courts lack of jurisdiction, choosing instead to directly rebut Petitioners’ allegations with Government declarations. Based on those declarations, the Court sees no need for additional inquiry into the matter.” (p.10)

Bearing that discussion in mind, a question that arises is whether the judiciary should defer to some extent to the executive’s factual claims regarding the degree of control it may exercise over the decision of another country to hold someone in custody. On that issue:

“Petitioners’ blanket allegations are not sufficient to prove that the United States is responsible for their continued detention. In Kiyemba v. Obama, based on a Government declaration that mirrors the declarations here, the District of Columbia Circuit concluded that detainees cannot “prevail on the ground that [a] foreign sovereign is an agent of the United States merely because . . . the Government engages in a dialogue to ascertain or establish what measures the receiving government intends to take pursuant to its own domestic laws.” 561 F.3d 509, 515 n.7 (D.C. Cir. 2009) (“Kiyemba II”) (citations and quotations omitted), cert. denied, 2010 WL 1005960 (U.S. Mar. 22, 2010); see also Kiyemba II, 561 F.3d at 521 (Kavanaugh, J., concurring) (stating the declaration suffices “to demonstrate that the proposed transfer of an alien to the custody of a foreign national is not the same thing as the U.S. Government’s maintaining the detainee in U.S. custody”). In view of that declaration, the Circuit Court had “no reason to think the transfer process may be a ruse – and a fraud on the court – designed to maintain control over the detainees beyond the reach of the writ.” Id. The Supreme Court has also provided that courts are “not suited to second-guess” such Government representations. Munaf, 128 S. Ct. at 2226. Following the direction of the appellate courts, this Court fully credits the Government declarations. Accordingly, the Court accepts that foreign governments, not the United States Government, are responsible for any continuing restraints on Petitioners’ liberty.” (p. 8-9)


nationalsecuritylaw cert denied in several GTMO detainee cases; KSM et al to be tried by military commission

April 4, 2011

1. Cert. Denied in GTMO Habeas Cases

The Supreme Court has denied cert. in the GTMO habeas cases al Odah v. United States and Awad v. Obama. No action taken in Kiyemba, however, reinforcing the impression that a denial accompanied by a dissent is in the works.

2. KSM et al to be tried by military commission after all

The AG is holding a 2pm (eastern) conference, and reports are emerging that he will announce that KSM and the other 9/11 defendants will be tried by military commission after all.